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.


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