Live blog of orders and opinions | May 28, 2019
We live-blogged as the Supreme Court released orders from the May 23 conference, granting Hernandez v. Mesa and issuing a summary reversal in Box v. Planned Parenthood of Indiana and Kentucky Inc., as well as opinions in three argued cases: Smith v. Berryhill, Home Depot U.S.A. Inc. v. Jackson and Nieves v. Bartlett. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.
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We've been waiting for weeks to see if the court will act on the same-sex wedding cake case and on the Indiana abortion case. The justices also considered Hernandez v. Mesa, involving the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent, last week. The U.S. solicitor general had recommended that the court grant review in Hernandez, which increases its chances of a grant considerably.
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John Elwood compiled a complete list of cases that were relisted for last week's conference here: https://www.scotusblog.com/2019/05/relist-watch-144/. For those of you who are new or new-ish, for the last several years, the court has generally only granted review after considering a case at at least 2 conferences.
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Here's a link to the orders list: https://www.supremecourt.gov/orders/courtorders/052819zor_2dq3.pdf
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We have an opinion in the Indiana abortion case. There were two provisions at issue. The first involved a required that fetal remains be cremated or interred. The second involved a ban on abortions based on the sex/race/disability of the fetus. The Seventh Circuit invalidated both provisions.
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Indiana petitioned for review. The Supreme Court today reversed the Seventh Circuit on the fetal remains question. It denied review on the second provision, the ban on abortions based on sex/gender/disability. This means that the Seventh Circuit's ruling striking that ban down will stand.
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Justice Ginsburg concurs in part and dissents in part. She agrees with the court's decision denying review on the second question. She says that she would not reverse on the first question "when application of the proper standard would likely yield restoration of the judgment."
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Back to the Indiana abortion case. The decision is unsigned. The Court says that Planned Parenthood has never argued that the law imposes an "undue burden" on a woman's right to have an abortion, so the Seventh Circuit looked at whether or not there was a "rational basis" for the law -- that is, whether it was rationally related to legitimate governmental interests. The law failed even this relatively deferential test, according to the Seventh Circuit. But the Supreme Court concluded otherwise: The government has an interest in the proper disposal of fetal remains, and the law is rationally related to that interest.
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To answer questions about Doe v. Boyertown School District: The school district had a policy of allowing transgender students to use locker rooms and restrooms that match their gender identity. The Third Circuit upheld that policy, and the Supreme Court denied a petition for review of that decision today, which means that the Third Circuit's decision (and the policy) will stand.
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Here's the opinion in Smith v. Berryhill. Kathy Moore will have our analysis:
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Put another way, when the SSA's Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an administrative law judge on the merits, that dismissal qualifies as a "final decision made after a hearing" within the meaning of the Social Security Act.
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Here's a link to the opinion in Home Depot. Ronald Mann will have our analysis. Goldstein & Russell, whose attorneys contribute to this blog in various capacities, was among counsel to the petitioner in this case.
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This is a case involving removal to federal court and the Class Action Fairness Act. The CAFA indicates that a class action can be removed to federal court by "any defendant without the consent of all defendants." The question in this case was whether either CAFA or the general removal statute allows a third-party counterclaim defendant to remove the counterclaim filed against it. The court says no: "Because in the context of these removal provisions the term 'defendant' refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove."
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Here's the opinion in Nieves v. Bartlett. Howard Wasserman will have our analysis:
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This is a case in which Russell Bartlett, who was arrested in a winter sports festival in Alaska, is suing two police officers. Bartlett alleges that the police officers were retaliating against him for his protected First Amendment speech when they arrested him for disorderly conduct and resisting arrest. The question before the court was whether, if the officers had probable cause to arrest Bartlett, that fact defeats Bartlett's First Amendment claim as a matter of law. Court concludes that because "there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law."
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That is, as I noted, the final opinion for the day. Here's a recap of the day:At 9:30 am, we got orders from last week's conference. The justices *finally* acted on the challenge to an Indiana abortion law. They reversed the Seventh Circuit's decision striking down a law that required fetal remains to be cremated or buried, but declined to review (and thus left in place) the part of the decision striking down a ban on abortions based on race/sex/disability. The justices also declined to review a decision by the Third Circuit upholding a school district's policy that allowed transgender students to use the bathroom that matches their gender identity.At 10 am we got three opinions:1. Smith v. Berryhill, involving Social Security appeals -- unanimous, by Justice Sotomayor2. Home Depot v. Jackson, involving removal of class actions to federal court -- 5-4, by Justice Thomas3. Nieves v. Bartlett, involving the First Amendment and retaliatory arrest, by the Chief JusticeThe Court is now finished.
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So by my count, we are waiting on four cases from the fall. Gundy v. US (October), Virginia Uranium v. Warren (November sitting), Carpenter v. Murphy (December sitting), and Gamble v. US (December sitting). And like the rest of you, I'm not really sure why they're taking so long -- but especially Gundy. It's quickly becoming the Melendez-Diaz v. Massachusetts of the 2018 term.
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