All posts by Professor Carolyn Shapiro

April Argument Review V – Administrative Law, Deference to Foreign Courts, and More

On April 23, the Court heard oral arguments in Lucia v. Securities and Exchange Commission, a case about whether Securities and Exchange Commission (“SEC”) administrative law judges (“ALJs”) are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution or merely employees of the SEC.  Alison Frankel of Reuters explains that in its Supreme Court brief, the Justice Department acknowledged that SEC ALJs are subject to the Appointments Clause. As Greg Stohr of Bloomberg explains, if the court agrees, there is a possibility that ALJs in a variety of agencies “could be fired for issuing rulings that clash with administration priorities.”

At argument, the justices did not appear to agree as to whether that would be a positive or negative development.  During the argument Chief Justice John Roberts stated this case could bring “political accountability” to federal judges, and in contrast Justice Stephen Breyer said the case could mean “goodbye to the independence” of ALJs. Robert Barnes of The Washington Post noted that Justice Elena Kagan likewise appeared worried about political pressure on ALJs, something they are shielded from as the law stands currently.

David G. Savage of The LA Times reports that some legal experts contend that a decision in favor of Lucia could also open the door for the President to be able to remove other executive officers, such as special counsel Robert Mueller. However, the tenor of the argument did not suggest that the justices have an interest in ruling that broadly. Check out The Wall Street Journal and U.S. News for more commentary on the arguments in this case.

On April 24, the Court heard arguments in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The issue in this case is whether U.S. courts should defer to foreign government’s interpretation of their own law, or if U.S. courts can exercise their own interpretation of the foreign law. Greg Stohr of Bloomberg reports that the Trump administration is partially backing Animal Science Products, who sued Hebei alleging they violated U.S. antitrust law by price fixing Vitamin C imports. China’s Ministry of Commerce had their day in the courtroom as they were granted argument time “unprecedently” by the Court. China’s lawyer, Carter Phillips argued that Hebei was just following Chinese law that required them to fix prices. Regarding the argument that U.S. courts should defer to foreign government’s interpretation of their law, Justice Elena Kagan asked, “How can you say that the only thing that shows respect to foreign governments is to do something that we don’t know that any other foreign nation does?”   that Justice Neil Gorsuch appeared to take an opposing stance and questioned why we should not defer to an administrative agency of a foreign sovereign, such as how “Chevron deference” allows courts to defer to interpretations of U.S. administrative agencies. Check out Reuters and Wall Street Journal  for more information on the arguments.

On April 23, the Court also heard oral arguments in Pereira v. Sessions. This is a statutory interpretation case about cancellation of removal (deportation) under 8 U.S.C. §1229b. At issue is whether a “notice to appear” issued by the government must meet certain criteria, as laid out in §1229(a), such as a court date and time. The oral argument transcript can be found here, and the recording can be found at Oyez. And in another case that week, Chavez-Meza v. United States, involving a sentencing issue, “[e]mbattled Deputy Attorney General Rosenstein“, argued on behalf of the government, as he participated in the tradition of a high-ranking Department of Justice Official arguing a case in front of the Court.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

April Argument Review III – Trump v. Hawaii and Presidential Statements

Trump v. Hawaii, the challenge to the third version of the travel ban issued by President Trump, was the last argument of the Term, argued on April 25.  The case featured two extremely experienced advocates: former Acting Solicitor General for the Obama Administration, Neal Katyal, representing the state of Hawaii, and current Solicitor General, Noel Francisco.

In a proclamation, President Trump limited travel from eight countries: Chad, Libya, North Korea, Iran, Somalia, Syria, Venezuela, and Yemen. Hawaii challenged the proclamation, arguing that it exceeded the president’s authority under the Immigration and Nationality Act (“INA”), specifically section 1182(f), and also violated the Constitution. The federal district court issued a preliminary injunction blocking the order and the Ninth Circuit upheld that ruling. The courts held that the proclamation likely violates the Immigration and Nationality Act.

The government defended the proclamation as within the President’s INA authority because the statute gives the president a “broad and flexible power,” and the proclamation reflects his foreign policy and national security judgment as to whether the government has enough information needed to determine whether aliens from particular countries are admissible. The government also argued that under the 1972 case, Kleindienst v. Mandel, once the government presents a legitimate reason, such as national security, for not admitting aliens, the decision is not subject to judicial review.

Addressing the statutory argument, Katyal argued that Congress already implemented a three-part plan to address the problem of certain countries not providing sufficient information for the U.S. government to vet nationals, and that plan included a ban on nationality discrimination in section 1152, also part of the INA.

The advocates also addressed whether the proclamation violated the Establishment Clause of the First Amendment because an objective observer would conclude that it was adopted for the purpose of excluding Muslims. In a high-stakes concession, Katyal agreed with Chief Justice Roberts that if the President “tomorrow” disavowed any anti-Muslim purpose or rhetoric, the Establishment Clause issue would disappear. In apparent response, in the last 30 seconds of his rebuttal, Solicitor General Francisco stated:

Well, the President has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries of the world. This proclamation is about what it says it’s about: Foreign policy and national security.

This statement turned out to be one of the most controversial in the case. Observers tried unsuccessfully to identify what September 25 statement the Solicitor General was referring to. (Full disclosure: I am one of many who said publicly that it was important for the government to correct or clarify the statement.) On May 1, the government filed a letter correcting the date in question, indicating that the reference was to January 25, 2017, and statements made that day that were cited in its reply brief. This clarification has not satisfied opponents of the proclamation. Since oral argument, and despite Katyal’s concession, the President and his press secretary have declined to make any disavowals of an intent to ban Muslims.

Bridget Flynn, Chicago-Kent Class of 2019, contributed this post.

 

April Argument Review – Part II – Tribal Fishing Rights

Native American fishing rights are at issue in Washington v. United States, argued in April 18, and covered by ISCOTUS now here. In the “Stevens Treaties,” a series of agreements made in the 1850s between the federal government and Indian Tribes in what are now the states of Idaho, Montana, Oregon, and Washington, the Tribes relinquished most of their territory, but retained in perpetuity “the right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory.”

In this case, the Tribes, joined by the United States, are seeking “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat.” The Tribes argue that culverts violate the treaties because they prevent salmon from accessing tribal fishing grounds, thus degrading fisheries and interfering with the Tribes’ “right of taking fish.” The district court found for the Tribes, which the Ninth Circuit affirmed, reiterating that the treaties guaranteed that “the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” The petitioner, the state of Washington, argues that while treaties do guarantee the Tribes the right to access fishing grounds, they do not guarantee the Tribes a standard of living of living from fishing.

At argument, the Court focused primarily on the appropriate standard to determine when the state violates the treaties. Noah Purcell, the Solicitor General of Washington, argued that a barrier would violate the treaties only if it causes “a large decline in a particular river and that it’s not justified by substantial compelling interests.” When Justices Alito and Kagan pressed Mr. Purcell to clarify this standard, he explained that “a decline of half the salmon would certainly easily qualify” but a decline between 1 and 5 percent would not qualify. Justice Gorsuch also pressed Mr. Purcell on his assertion that barriers would not violate the treaty if justified by a substantial compelling interest. “I don’t see anything in the treaty…that says: Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you’re taking…before this Court.”

Allon Kedem argued on behalf of the United States, and William M. Jay, argued on behalf of the Tribes. Both were also asked to clarify the appropriate standard of salmon degradation that would constitute a treaty violation. Mr. Kedem did not provide a specific number, but stated that “substantial degradation” is “harm that is both durable and appreciable, meaning the type of thing that shows up year after year, despite normal fluctuations.” Mr. Jay said that substantial degradation does not mean “a hard and fast number” but is “something that you would determine, factually, in the context of one fish species versus another.”

Reviewing the arguments for SCOTUSblog, Miriam Seifter writes that while the Court “is unlikely to devote its opinion to correcting factual findings”, it “does seem poised to announce some standard for violations of the treaties.”

Also on Wednesday, April 18, the Court heard arguments in Lagos v. United States, which presents the question of whether, under the Mandatory Victims Restitution Act (MVRA), a criminal defendant can be ordered to pay costs to the victim that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and which no official government action prompted. The case involves the MVRA’s requirement that courts must order the defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. 3663A(b)(4).

The Fifth Circuit, and other courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were “neither required nor requested” by the government, but the D.C. Circuit has disagreed.

Daniel Geyser, a Dallas attorney, argued on behalf of the defendant, the former owner and CEO of a holding company that owned USA Dry Van Logistics LLC, a trucking company. Lagos induced GE Capital to loan his company tens of millions of dollars by modifying Dry Van’s records, leading GE Capital to incur almost $5 million in debt.

Geyser argued that the MVRA’s language “does not include the cost of hiring four law firms, a consulting firm and forensic experts for a private investigation in bankruptcy litigation.” Unlike other restitution provisions, the MVRA does not provide make whole relief, he argued. Geyser further argued that GE Capital incurred expenses before the government’s investigation, and therefore they did not qualify as expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

Michael Huston, Assistant to the Solicitor General, argued on behalf of the United States, taking the position that the statute is not limited to participation in the government’s investigation. Several justices appeared to disagree, however. Chief Justice John Roberts, for example, stated that the statute refers to only one investigation and that must be the government’s. And Justice Breyer told Huston that he has “a big problem” with the statute’s language because it does not clarify whether a victim should receive restitution for costs incurred during a company’s investigation before a police investigation begins.

On Tuesday, April 17, the Supreme Court heard arguments in Lamar, Archer & Cofrin, LLP v. Appling, in which the Court will decide if an oral statement regarding a single asset is a statement “respecting the debtor’s financial condition,” as described in the United States Bankruptcy Code. Danielle D’Onfro of SCOTUSblog reports that the justices asked few questions of the parties in this case, but when they did, they primarily focused on what types of statements, such as “I’m above water,” “I own a genuine Vermeer,” and “I have a bank account with a billion dollars in it,” can be considered actual statements about one’s “financial condition.” D’Onfro believes the ruling will not “clarify much beyond a few words in Section 523,” and the case “may be in the running for the narrowest decision of the term.” To read more about the case, check out the Jurist’s article, here.

ISCOTUS Fellows Bridget Flynn, Elisabeth Hieber, and Matthew Webber, all Chicago-Kent Class of 2019, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

April Argument Review: Part I – State Taxation of Internet Commerce

April saw several significant oral arguments, including a case that could change the rules for state taxation of internet commerce, South Dakota v. Wayfair, previewed here. In Wayfair, the state of South Dakota, with the support of forty-one other states, is asking the Court to overrule a 1992 case, Quill Corp. v. North Dakota. Quill held that the commerce clause prohibits state governments from taxing out-of-state retailers that do not have a physical presence in the state on the sale of goods.

South Dakota Attorney General, Marty J. Jackley, argued  first that under Quill, states are losing “massive sales tax revenues” needed for “education, health care, and infrastructure.” Second, he argued that the holding it hurts smaller retailers with brick-and-mortar stores who are trying to compete against the larger, national retailers with an online presence.

Justice Sotomayor asked Jackley “[h]ow much contact is enough to justify placing this obligation on an out-of-town seller?” She was also concerned about logistics, asking what would happen if a company lost track of how much it had sold in a particular state. Chief Justice Roberts pointed out that some of the larger e-commerce companies are expanding to the point that they have a physical presence in most, if not, all 50 states, arguably rendering a reversal of Quill irrelevant. Jackley responded by stating that although a few companies—principally Amazon—are expanding their physical presence, states are expected to miss out on some $100 billion in lost revenue over the next decade. Justice Kennedy, no fan of Quill, stated that “this court has made a statement of constitutional law that … has now, especially in light of the cyber age, proven incorrect.”

Arguing against a reversal of Quill, George Isaacson, representing Wayfair argued that Congress should identify the parameters of taxation across state lines. For example, he argued, “[Congress] can require standard uniform definitions of products so that food and sportswear and clothing doesn’t mean one thing in one jurisdiction ad another elsewhere. “ Similarly, Chavie Lieber of Racked.com highlights a similar argument made by those opposed to the Supreme Court overruling Quill. Such a reversal of  via the Supreme Court would “open a can of worms” as local state tax regimes restructure how they levy those new taxes. Alan Horowitz of Appellate Tax reviewed the oral argument in detail, concluding that signs pointed towards a closely divided court likely to uphold its prior precedent.

In another tax related-case, Wisconsin Central Ltd. v. United States, the issue revolved around whether stock transferred by a railroad company to an employee is taxable compensation under the Railroad Retirement Tax Act. Elizabeth Lowman of Jurist writes that during the argument Wisconsin Central argued that stock is not money as defined as a “generally accepted medium of exchange.” The government on the other hand argued that more than just cash money falls under the purview of the statute and cited other non-cash examples that are taxed for support. Daniel Hemel of SCOTUSblog similarly noted that the main focus of the justices was what is considered “money,” and what is not.

And in WesternGeco LLC v. ION Geophysical Corp., argued the same day as Wisconsin Central, the Court considered whether a domestic patent holder can be awarded foreign lost-profit damages, or if the presumption against extraterritoriality bars such recovery. In this case, the Respondent produced components parts of a patented item that, if put together in the United States, would constitute patent infringement. Instead, however, Respondent shipped the components to foreign parties to be combined and then used outside of the United States.

Petitioner argued that the presumption against extraterritoriality should not apply because the loss of foreign profits is a direct and foreseeable result of a domestic act of infringement. Justice Breyer had questions for Petitioner primarily aimed at the idea of comity – whether or not allowing foreign lost-profits damages in this case could have the effect of foreign corporations going after components manufacturers in the United States for violating foreign patents.

Addressing Justice Breyer’s concerns, the Assistant to the Solicitor General, arguing for the United States in support of the Petitioner, noted that the comity issue should not be very concerning given that similar damages are already awarded in tort, contracts, and copyright law. The United States also argued that once the infringement is established, if the patentee is able to show that such infringement is the proximate cause of the patentee’s lost profits, the patentee should be allowed to recover full compensatory damages.

Respondent argued that the presumption against extraterritoriality should bar the Petitioner from being awarded foreign lost-profit damages, because the harm (downstream loss of foreign profits once the patented device is used abroad) is too far removed from the domestic act of infringement for these damages to appropriately be awarded. Many of the Justices’ questions for the Respondent were based around the idea that applying the presumption against extraterritoriality here would prevent the patentee from being fully compensated for the patent infringement.

Check out a quick overview of the background of the case and oral arguments from Reuters. And write up of the oral arguments from patent law blog Patently-O can be found here.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Oral Arguments Review: Week of December 4, 2017

On Tuesday, the Supreme Court heard oral argument in one of the biggest cases of the Term: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In this case, a baker who makes custom wedding cakes refused to provide a cake for a same-sex couple celebrating their marriage. The Colorado Civil Rights Commission found that he had violated the state’s anti-discrimination law. The baker appealed to the Supreme Court, alleging that he was forced to engage in “compelled speech” and that his free exercise of his religion was improperly burdened, both in violation of the First Amendment.

The argument, which lasted almost 90 minutes, involved extensive discussion about the scope of the right that the baker was claiming. To the extent that he claimed to be engaging in expressive conduct, Justice Kagan pressed his attorney about whether make-up artists, hair stylists, chefs, and florists would also be covered by his theory. Surprisingly to many, including Justice Breyer, when Justice Alito asked whether architectural design was expression protected by the First Amendment, the baker’s lawyer said no. The Justices and attorneys also discussed whether race discrimination could be justified on religious or free expression grounds, a position that both the baker’s attorney and the United States government, which appeared to support the baker, attempted to distinguish.

There has been an enormous amount of commentary about this case and the argument. David Savage of the Los Angeles Times explains why a 1990 majority opinion written by Justice Scalia, Employment Division, Department of Human Resources v. Smith, makes the free exercise of religion claim particularly challenging for the baker. (In Smith the Court held that there are generally no free-exercise exemptions from compliance with generally applicable laws.) A video of a “spirited” debate between the Cato Institute’s Ilya Shapiro and the NAACP Legal Defense and Educational Fund’s John Paul Schnapper-Casteras can be found here. Shapiro and Schnapper-Casteras filed amicus briefs on opposite sides of the case on behalf of their respective organizations. Commentary from the National Catholic Register is here and from Craig Konnoth, a University of Colorado law professor, here.

Another high-profile case was argued on Monday, December 4. Christie v. National Collegiate Athletic Association, as ISCOTUSnow explained last week, the key issue involves Congress’s ability to prevent states from deregulating sports gambling. Ilya Somin argued in a piece entitled “Place Your Bets on Federalism,” at the Washington Post’s Volokh Conspiracy that the argument went well for New Jersey, which wanted to legalize some gambling. And the sports media also continues to cover the case. CNN reports here, noting that Governor Chris Christie himself sat in the front row during the argument.

Audio and transcripts arguments in Christie, Masterpiece Cakeshop, and the other, less high-profile cases from last week —Rubin v. Islamic Republic of Iran, Murphy v. Smith,  and Marinello v. United States — can be found oyez.org. Descriptions of these cases can be found here.

Conference Report: December 1 and 8 Conferences

Over the last two weeks, the Supreme Court has granted cert in eight new cases and has issued a number of rulings of note. First, on Friday, December 8, in a 5-4 order, the Court granted a stay of a discovery order in a case challenging the Trump Administration’s decision to end the DACA program — the program that grants deferred action for undocumented immigrants who arrived in the United States as children and who meet a number of other criteria. In the case, known in the Supreme Court as In re United States, the government sought a stay of a district court order requiring it to produce certain documents. The Supreme Court granted the the stay, pending resolution of a petition that the government filed, and it ordered any response to that petition to be filed by December 13. Justice Breyer wrote a 9-page dissent, in which he was joined by Justices Ginsburg, Sotomayor, and Kagan.

On December 4, the Court also issued stays in both of the pending travel ban appeals, allowing the current travel ban to go into effect. The Court also told the courts of appeals to render their “decision[s] with appropriate dispatch.” Justices Ginsburg and Sotomayor both noted dissents from these orders, although they did not write opinions. The Ninth Circuit heard oral argument in Hawaii v. Trump on December 6, and the Fourth Circuit heard oral argument on December 8.

On Friday, December 8, the Court announced that it would hear seven new cases. Most notable is a case called Benisek v. Lamone. Benisek involves a challenge to a partisan gerrymander in Maryland. The case that is similar, although not identical to, Gill v. Whitford, in which the Court heard argument in October (more about the case here). Perhaps significantly, one way the cases differ is in the party that controlled the redistricting: in Gill, Republicans controlled, while in Benisek, Democrats were in charge. As election law expert Rick Hasen explains, however, this decision to hear Benisek was a surprise, as most expected the Court simply to “hold” the case and then remand for consistency with whatever it decided in Gill. Adam Liptak of The New York Times has more here.

The Court also granted cert in Koons v. United States and Hughes v. United States. The cases raise similar issues related to sentencing reductions where the Sentencing Commission changes the Guidelines, but Hughes also asks a much more complex question about how to interpret Supreme Court decisions where there is no majority for any rationale — asking for a clarification of the 1977 decision in Marks v. United States. Scholarly commentary on this question from Ryan Williams of Boston College Law School is available here. And in China Agritech, Inc. v. Resh, the Court agreed to hear a case about whether the statute of limitations is tolled for potential class members when a putative class action is filed but no class is certified in situations where the those putative class members later wish to bring their own class action lawsuit. The Court has previously held, in American Pipe & Construction Co. v. Utah,  that such tolling applies where the class members want to file their own individual actions.

The other cases granted on December 8 included Upper Skagit Indian Tribe v, Lundgren, involving tribal sovereign immunity in a property dispute, United States v. Sanchez-Gomez, about appellate jurisdiction, Sveen v. Melin, about the scope of the Contract Clause.

And finally, on December 1, the Court announced that it would hear Salt River Project Agricultural Improvement and Power Dist. v. SolarCity Corp. Salt River is about whether interlocutory appeals are available from denials of immunity under the “state action” doctrine in antitrust law.

Conference Report – November 21, 2017 Conference

On Monday, the Court issued orders from its pre-Thanksgiving Conference. It did not grant any new cases for full argument. In the most notable denial of certiorari, the Court declined to hear Kolbe v. Hogan, a challenge to a Maryland law that bans semiautomatic rifles and magazines. The law was passed in the wake of the Sandy Hook shooting and was upheld in a 10-4 en banc decision of the Fourth Circuit. As The Hill and The Baltimore Sun explained, the Fourth Circuit held that such military-grade weapons were not covered by the Supreme Court’s decision in District of Columbia v. Heller. Heller held that the Second Amendment confers an individual right to have a handgun in one’s home for purposes of self-defense. The only Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, which simply applied the Second Amendment, and the Heller holding, to the states. Commentators on both the left and the right have discussed this apparent lack of desire by most of the Justices to revisit the Second Amendment, although in June, Justice Thomas, joined by Justice Gorsuch, dissented from a denial of certiorari in on that basis.

On Monday, however, Justice Thomas dissented from the denial of certiorari in a case involving a different area of law, Upstate Citizens for Equality, Inc. v. United States. The Secretary of the Interior used the Indian Reorganization Act (“IRA”) to take into trust more than 13,000 acres of land, which had been under the state’s sovereign control for more than two centuries, for the Oneida Nation of New York. The Second Circuit upheld this action over the plaintiffs’ argument that this use of the IRA was an unconstitutional exercise of Congress’ power under the Indian Commerce Clause.

Justice Thomas said he would have granted certiorari to reconsider the Court’s Commerce Clause precedents, which, he said, courts are applying in a way that gives Congress plenary power to pass laws related to Indian affairs. Justice Thomas asserted that the Clause extends only to regulating trade with Indian tribes whom the state has not incorporated. The IRA, Thomas wrote, allows the Secretary merely to “take into trust land that an Indian tribe already owns.” Thomas expressed concern that the Second Circuit’s application of Supreme Court precedent showed how far the Court’s precedents interpreting the Clause have strayed from the original understanding. Under the precedents, Thomas said, “Congress could reduce a state to near nonexistence by taking all land within its borders and declaring it sovereign Indian territory…When our precedents permit such an absurd result, something has gone seriously awry. It is time to fix our error.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 and by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

 

Justice Elena Kagan at Chicago-Kent College of Law & ISCOTUS

On Monday, October 16, Chicago Kent was honored to host Justice Elena Kagan. She spoke to a packed house for an hour, answering my questions about the Court, how she works, and her background. We will post video of the interview when it’s available, and we’ll also have our own write-up of the day. But in the meantime, coverage is available at the Chicago Daily Law Bulletin, the Chicago Tribune, the New York Times,  and SCOTUSblog. Election law expert Rick Hasen, who was at Chicago-Kent to deliver the keynote address at the ISCOTUS/Law  Review  Symposium on The Supreme Court and American Politics the following day, live-tweeted the talk. Below, enjoy the talents of my colleague Evelyn Brody, who sketched this picture during a faculty lunch with Justice Kagan.

Orders from the October 6 Conference

The Supreme Court released orders from last week’s Conference on Tuesday.  The Court dismissed the government’s appeal in one of the travel ban cases, Trump v. International Refugee Assistance Project. In this case, the Fourth Circuit upheld a district court’s injunction of portions of President Trump’s travel ban Executive Order. The Court granted certiorari in this case last June, but because the particular provisions of the travel ban that the Fourth Circuit enjoined have now expired, it remanded the case back to the Fourth Circuit on Tuesday with directions to dismiss the case as moot. The Court expressed no view on the merits. Justice Sotomayor would have dismissed the case as improvidently granted, leaving the Fourth Circuit opinion in place. The Court did not issue an order related to the travel ban case from the Ninth Circuit, Trump v. Hawaii. That case challenges a provision of the President’s March 6 executive order that is still active, but set to expire later this month.

The Justices also agreed to hear two original jurisdiction cases.  The cases, Florida v. Georgia and Texas v. New Mexico and Colorado, both address water rights between states.  Original jurisdiction cases are distinguished from other cases because they are filed directly in the Supreme Court. In original jurisdiction cases, the Court could conduct a jury trial to resolve the issue, as the Court did in Georgia v. Brailsford in 1794. More often, however, the Court appoints a special master to analyze the evidence, hold a hearing or trial if necessary,  and put together a report, to which lawyers from each side can respond. Once the report and challenges have been submitted to the court, the justices may schedule the case for oral arguments. Stephen Wermiel provides more information about the Court’s original jurisdiction at SCOTUSblog.

Texas v. New Mexico v. Colorado addresses whether New Mexico and Colorado are in violation of the Rio Grande Compact and the Rio Grande Project Act, which apportion water to Rio Grande project beneficiaries. Texas filed a suit alleging that New Mexico’s increased water usage and groundwater pumping below Elephant Butte Reservoir deprives Texas of water apportioned to it under the Rio Grande Compact of 1938. New Mexico allows farmers to pump groundwater to irrigate about 60,000 acres of the state’s cotton, pecan and chile crops in the southern part of the state.  There case also involves a dispute between the federal government and New Mexico as to whether New Mexico’s groundwater pumping interferes with the United States’ ability to meet its contractual obligations to deliver Rio Grande water to Mexico, per a treaty signed in 1906, as well as a water-rights dispute between Texas and Colorado.

Florida v. Georgia also concerns water rights between states.  The issue in this case is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and whether injunctive relief against Georgia is appropriate to sustain an adequate flow of freshwater into the Apalachicola Region.  Florida filed its lawsuit against Georgia in 2013, alleging that Georgia diverts so much water from the river system that it has damaged Apalachicola Bay, located to the southwest of Tallahassee, and harmed the seafood industry of Franklin County, Florida. Georgia argues that limiting its water use will undermine the growth of the state’s agricultural industry and harm the growth of Atlanta and the surrounding area. The Special Master’s report in this case, also filed in February 2017, recommended that the Court reject the strict water consumption limits that Florida requested.  The stakes for both states are high, with Georgia arguing that limiting its water usage could cause up to $2.5 billion in economic losses, while Florida argues that it will lose $100 million.

Finally, the Court called for the views of the Solicitor General in Apple Inc. v. Pepper.  When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court asks the Solicitor General to file an amicus brief to explain the United States’ views on whether the case deserves review.  This most often happens in cases where, even though the United States is not directly involved, federal interests are significantly affected or the federal government possesses particular expertise. CVSG has occurred in about 25 cases per Term in recent years.  The American Bar Association provides more information about CVSGs here.

Apple Inc. v. Pepper is an antitrust case which asks if consumers have standing to bring a private class action lawsuit under the Sherman Act.  Currently, Apple only approves apps if the developer gives Apple exclusive distribution through the App Store.  As the proprietor of the App Store, Apple is then able to markup the price of the app in order to take a commission on each sale.  Consumers have brought a class action, alleging that these policies create a monopoly on the apps available to iPhone users.  The Ninth Circuit held that individual consumers had standing to sue Apple. Apple contends that they are merely a distributor rather than a direct seller and therefore cannot be sued under the Sherman Act.

The Court meets again in Conference at the end of this week and we expect it to issue Orders at the beginning of next week.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.