On Monday, Justice Gorsuch announced his first opinion as a Justice of the Supreme Court in Henson v. Santander Consumer USA, Inc.,, was the first of four opinions the Court announced from the bench. In Henson, the plaintiffs alleged that Santander had violated the Fair Debt Collection Practices Act (FDCPA) in its communications with individuals who owed debts. Santander, however, contended that it was not a “debt collector” as defined by the FDCPA because it was collecting debts that it owned, not on behalf of another creditor, even though it had not originated the debts itself but had purchased them. The Supreme Court agreed with Santander in a unanimous decision holding that when a company purchases and then tries to collect debts, it is not a “debt collector” within the meaning of the FDCPA. The FDCPA defines a “debt collector” as a third party who collects a debt on behalf of another, not a party collecting a debt that it is owed firsthand. Joseph P. Williams of USNews noted that Justice Gorsuch’s writing skills “seem to be as good as advertised” as he “delivered a cleanly written opinion, using common language, discarding legal jargon when appropriate and showing some empathy for the common person.” And Tony Mauro of The National Law Journal wrote that the assignment of this opinion to Gorsuch “followed the high court’s tradition of giving the newbie a positive experience by assigning him or her to write in a relatively straightforward case likely to yield a unanimous decision.” Mauro added that the opinion itself, which was in fact unanimous, “follows [Gorsuch’s] pledge to focus on the text of statutes before the court.” And Colin Wilhelm of Politico noted that although “Gorsuch acknowledged that a reasonable person could argue that the law be revisited” to cover the at issue, the opinion explained that “it is not this Court’s job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” For more commentary on this opinion, check out The Washington Post, Bloomberg, and  The Washington Examiner.

A second opinion announced on Monday was in Sessions v. Morales-Santana. In this case, the Court addressed an issue at the intersection of immigration law and sex discrimination. For many years, Congress has provided that children who have one U.S. citizen parent and are born abroad are entitled to U.S. citizenship themselves only if one of the parentsresided in the United States for at least ten years prior to the child’s birth, at least five of which occurred after the parent turned 14 (the “presence requirement”). This presence requirement applies to children of married couples where one of the parents is a citizen, and it also applies to children of unmarried couples where the father is a citizen. But the statute makes an exception for children of unmarried couples where it is the mother who is a U.S. citizen. Under those circumstances, the mother can transmit her citizenship if she lived in the United States for only one continuous year prior to the child’s birth.

Morales-Santana was born in the Dominican Republic. His father was a U.S. citizen, but his mother was not, and they were unmarried when he was born. (They later married.) Morales-Santana was denied citizenship because his father did not meet the presence requirement. He challenged the statute as unconstitutional gender discrimination in violation of the Constitution’s guarantee of equal protection because, had his mother been the U.S. citizen, she would have met the more generous presence requirement. The Supreme Court, in an opinion by Justice Ginsburg, joined by the Chief Justice and Justices Breyer, Kagan, Kennedy, Sotomayor, agreed and, quoting Obergefell v. Hodges, held that a gender-based “classification must substantially serve an important governmental interest today, for ‘in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.’” Mark Joseph Stern of  Slate noted the significance of this citation to Obergefell as having potentially longterm implications for gender discrimination law, and along with others, noted that the Chief Justice, who dissented forcefully in Obergefell, nonetheless joined the Court’s opinion in full.

Unfortunately for Morales-Santana, although the Court concluded that the government could not justify the statute’s gender-based distinction, it held that appropriate remedy in this case did not allow it to extend the rule for children of U.S. citizen unwed mothers to his case. iInstead, as Ian Millhiser of ThinkProgress explains, the Court required the Goverment to “apply the harsher rule universally.” Justice Thomas, joined by Justice Alito, concurred in the judgment but would not have reached the constitutional question at all. More information on the ruling is available from The New York Times and the Washington Post, which noted that Justice Ginsburg cited some of her own most significant work on gender discrimination, notably United States v. Virginia Military Institute.

Additionally on Monday, the Court issued its opinion in Microsoft Corporation v. Baker. The plaintiffs in this case brought a putative class action, but the class allegations were stricken. They then voluntarily dismissed their individual claims with prejudice but appealed the rulings on the class allegations. In part, this maneuver was an effort to avoid the fact that there is no appeal as of right for rulings on class certification. The question before the Court was whether a federal court of appeals had jurisdiction over those class-action issues. In an opinion written by Justice Ginsburg, the Court, relying on Federal Rule of Civil Procedure 23(f) and 28 U.S.C. 1291, held that there was no federal appellate jurisdiction once the plaintiffs dismissed their individual claims with prejudice. The ruling reiterates that parties generally have a right to appeal only a final judgment. Although the Court was unanimous (8-0) as to the result, Justice Thomas wrote an opinion concurring in the judgment, which was joined by Chief Justice Roberts and Justice Alito, and would have held that there was no Article III case or controversy left once the plaintiffs dismissed their individual claims. Greg Stohr of Bloomberg stated that this decision gives companies a “new procedural tool in class action litigation.” Deborah J. LaFetra of The Pacific Legal Foundation opined that this decision “put the kibosh on a tactic by counsel for purported class actions to evade the final judgment rule.” Check out  Reuters, ARS Technica, and US News for more information on this ruling.

The final opinion in an argued case that the Court issued on Monday was Sandoz Inc. v. Amgen Inc., a unanimous (9-0) opinion written by Justice Thomas. This case involved notice practices regarding marketing of “biosimilar products” under the Biologics Price Competition and Innovation Act of 2009. Biosimilar products are products regulated by the FDA that are “highly similar” to already approved biological products. Producers of biosimilar products must give certain notice to the sellers of the original products before they market.  The Court held that patent holders cannot use the federal law to enforce that requirement, although they may be able to use state law to get the information. Greg Stohr of Bloomberg noted that this was “a mixed decision on the rules governing efforts to get low-cost alternatives to pricey biotechnology drugs on the market.” Read Endpoint News and Reuters analysis of this decision for more information.

On Monday, the Court also issued a unanimous per curiam opinion in Virginia v. LaBlanc. This case indirectly addresses whether a state law providing for the possibility of geriatric release satisfies Graham v. Florida, which prohibits life imprisonment without the possibility of parole for non-homicide juvenile offenders. Virginia state courts had said that it did, and on habeas, the federal court of appeals disagreed. The Supreme Court reversed, although it did not reach the ultimate question. Rather, it held only that the Virginia state court’s holding was a reasonable application of Supreme Court precedent, which is all that habeas law requires. And the Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, which addresses the constitutionality of an administrative procedure for challenging patents. And to quote ourselves from several weeks ago:  [Y]et again, [the Court] did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons.

The Court is entering the home stretch. David Savage of The Los Angeles Times has a summary of some of the cases the Court still has left to decide (or hold over for re-argument) before the end of June. This discussion does not, however, include any possible action in the travel ban cases. On Monday, the Ninth Circuit issued its ruling largely upholding the injunction staying President Trump’s Executive Order, agreeing with the Fourth Circuit, but applying different reasoning. The United States has asked the Supreme Court to stay the injunctions and to hear at least one of the cases in the fall, and it has asked for rulings on those requests before the Court recesses at the end of the month. Stay tuned for more information.

On Monday, the Court summarily affirmed a finding of liability in yet another voting rights case from North Carolina, issued four opinions, and granted certiorari in one case. In North Carolina v. Covington, the Court summarily affirmed a three-judge district court’s holding that the state legislative map was an unconstitutional racial gerrymander. (Only two weeks ago, in Cooper v. Harris, the Court struck down two of the state’s congressional districts for the same reason.) There were no dissents. In the same per curiam opinion, the Court also vacated the district court’s remedial order requiring a special election later this year and instructed the district court to weigh the equities more carefully and explicitly. There are mixed views about the significance of this case. Ian Millhiser of ThinkProgress argues that delays in remedies makes it easier for states to get away with illegal gerrymanders, while election law scholar Rick Hasen thinks:

On the merits, the balancing test that the Court puts forward for when a special election should be held makes great sense, and will extend beyond the racial gerrymandering cases. Indeed, with this new multipart test (“the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty”) I would expect plaintiffs to now ask for special elections more regularly and courts applying these sensible factors. So a ruling counseling restraint might actually create more disruption.

The Court also granted certiorari in Carpenter v. United States, in which the Court will grapple with the boundaries of the Fourth Amendment when it comes to cellphone data and whether law enforcement needs a warrant to get information from cellphone companies about their customers’ whereabouts. More specifically, the question presented is whether the Fourth Amendment permits a warrantless search and seizure of cell phone records pertaining to the location and movements of the cell phone user over the course of 127 days. Adam Liptak of the New York Times discusses the Court’s history with this issue, including the “third-party doctrine,” and the Stored Communications Act. Orin Kerr of the Washington Post speculates about why the Court took this case, and notes its importance: “Although the case is formally about cell-site records, it’s really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies.”

The Court also released unanimous (8-0) opinions in Town of Chester v. Laroe Estates, Inc., Advocate Health Care Network v. Stapleton, Honeycutt v. United States, and Kokesh v. Securities and Exchange Commission. In Town of Chester, in an opinion by Justice Alito, the Court held that intervenors in a federal case must have their own Article III standing where they seek relief that is different from the relief sought by the original plaintiffs, and it remanded for a determination as to whether the intervenors here are seeking different relief. This holding is reminiscent of the Court’s determination in Hollingsworth v. Perry that proponents of California’s gay marriage ban did not have standing to contest the district court’s decision striking down the ban where the state itself, through its elected officials, declined to appeal.

Justice Kagan wrote for the unanimous court in Advocate Health Care Network. The Court held that a pension plan maintained by an organization — here a hospital chain —  associated with or controlled by a church qualifies as a “church plan,” under the Employee Retirement Income Security Act (ERISA), even if the church itself did not establish the plan. Church plans are exempt from many legal requirements that other employee benefits plans must meet. Writing for the Constitution Daily, Lyle Denniston explained the implications of this decision, including that church organizations’ ealth care plans will not be required to obey the Obamacare mandate of free contraceptives for women employees – “if that mandate survives an expected move to rewrite it by the new Trump Administration.”

In Honeycutt, the Court unanimously decided that a defendant must actually acquire property as a result of a crime in order for that property to be subject to civil forfeiture pursuant to §853(a)(1) of the Comprehensive Forfeiture Act of 1984. The defendant in this case, Terry Honeycutt, did not personally benefit from illegal drug sales and was therefore not in violation of the Act. Peter J. Henning of the New York Times gave a preview of the case back in April, noting that “[i]f you are wondering how someone can be forced to give up something he never had, then welcome to the intersection of conspiracy and asset forfeiture law.”

Finally, in Kokesh v. Securities and Exchange Commission, the Justices unanimously held that a claim by the SEC for disgorgement must be commenced within five years of the date the claim accrued because it operates as a penalty under 28 U.S.C. §2462. An article in The National Law Review argues that this decision “left open the possibility of a further challenge to SEC disgorgement,” based on a footnote in the Court’s decision. Reuters comments on the impact of this decision: “For the more complex cases, this will be a sea change for them, they will have to move more quickly.”

Finally, yet again, the Court did not act on the petitions in the Second Amendment case Peruta v. California or in the case involving a baker who refused to make a cake for a same sex wedding, Masterpiece Cakeshop, Ltd. v. Colorado Human Rights Commission.

On Tuesday, the Supreme Court issued three opinions and announced that will hear a case involving voter registration next Term. In one of the three opinions the Court issued on Tuesday, County of Los Angeles v. Mendez, the Court held, in a unanimous (8-0) opinion by Justice Alito that an officer’s reasonable use of force could not be understood to be unconstitutional by reference to things the officer had done earlier. In Mendez, the officers reasonably fired at a man pointing a BB gun at them. The question was whether their unconstitutional entry — without a warrant and without a knock-and-announce — into a shed where the man and his girlfriend, who were homeless, rendered the shooting unreasonable. As Rory Little explains in a particularly insightful SOCTUSblog post, it appears that the Court worked hard to achieve unanimity in this case and that it cabined its holding in significant ways, reminding courts that reasonableness is assessed on the totality of the circumstances and that law enforcement officers can be held responsible for the foreseeable consequences of their actions and even leaving open the possibility that the plaintiffs could prevail on remand.

In Impression Products, Inc. v. Lexmark International, Inc., the Court held that a patent holder cannot restrict a purchaser’s use or subsequent sale of a patented product, and it made clear that this legal rule applies to products sold both within in the United States and abroad. (The decision was 7-1, with Justice Ginsburg dissenting with respect to products sold abroad.) More analysis is available at Ars Technica. And in a unanimous (8-0) opinion by Justice Thomas, the Court held in Esquivel-Quintana v. Sessions that an immigrant’s conviction for sexual abuse of a minor arising out of a consensual relationship between the immigrant when he was 21 and his 17-year-old girlfriend did not qualify as an aggravated felony leading to automatic deportation.

And the Court agreed to hear Husted v. A. Philip Randolph Institute, in order to review a Sixth Circuit decision holding that Ohio’s method of removing voters from the rolls violated two federal laws. The Atlantic provides some background about the case and related issues. At the same time, the Court failed to act in a number of closely watched cert petitions. It did not act in Pavan v. Smith, for example, which addresses whether it is a violation of the Fourteenth Amendment to deny married same-sex couples to have both their names on their child’s birth certificate. And yet again, it did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons. SCOTUSblog, which keeps a running list of “Petitions We’re Watching,” summarized Tuesday’s orders here.

In other news, President Trump’s administration may find itself before the Supreme Court for a last chance to argue that its travel ban is constitutional. As Reuters reports, multiple federal courts have again declined to lift injunctions placed on the ban. It is unclear if the administration would file for appeal soon, or if they will wait for the 9th Circuit to rule on the issue. If they take on the case, the Court will be “called upon to decide whether courts should always defer to the president over allowing certain people to enter the country, especially when national security is the stated reason for an action as in this case.” They will also decide if the ban does indeed “favor one religion over another,” an action prohibited by the Constitution. Experts believe this case will most likely make its way to the Court for a final decision. However, as Lyle Denniston of Constitution Daily reports, the administration must act quickly if they want the issue settled before fall. As this is a very important and hotly debated case, the Court might even hold a special sitting in the summer if they believe it is urgent enough.

Finally, Gill v. Whitford has been in the recent news. In this case, a three-judge district court struck down Wisconsin’s State Assembly map “because it was drawn to neutralize the votes of Democrats, depriving them of representation.” USA Today reports that this case and other similar cases “will present the court with a fundamental question about political power: How far can lawmakers go in choosing their voters, rather than the other way around?” The Court declined for decades to set a standard regarding partisan gerrymandering, and this case may lead it to do so for the first time. Alternatively, the Court could hold, as four justices urged the last time the Court considered the issue in Vieth v. Jubelirer, that legislative districting is a nonjusticiable political question. (Because of the type of case, which was heard by a three-judge district court, the parties have an appeal as of right to the Supreme Court. The Court can summarily affirm, but it is likely to order full briefing and argument because of the significance of the case.The state of Wisconsin has requested a stay so that it does not have to redraw the districts in the meantime. Justice Kagan has ordered a response by June 7.) Ariane de Vogue of CNN explains the background of this very important legal issue.

On Monday, the Supreme Court issued three opinions and its Order List from last week’s Conference. The most newsworthy of the decided cases, Cooper v. Harris, involved a challenge to two congressional districts in North Carolina. The plaintiffs  alleged that the districts were an unconstitutional racial gerrymander. The three-judge district court agreed, and the case was appealed automatically to the Supreme Court, which affirmed, striking down the districts. (If this sounds familiar, it may be because earlier this Term, the Court unanimously vacated a decision by a district court to uphold parts of a Virginia state legislative map that was challenged as an unconstitutional racial gerrymander, in a case called Bethune-Hill v. Virginia Board of Elections. The two cases were argued on the same day, by the same lawyers.)

In Cooper, in an opinion by Justice Kagan, the Court unanimously (8-0) rejected the state’s claim that, to comply with the Voting Rights Act, it needed to increase the black voting age population in one of the two districts. And by a 5-3 vote, the Court upheld the district court’s factual findings, with respect to the second district, that race predominated over other, constitutionally neutral, districting criteria. Many people were surprised by the line-up in Cooper. In Cooper, the 5-3 part of Justice Kagan’s opinion was joined by the other three liberal justices (Breyer, Ginsburg, and Sotomayor), but the fifth vote was supplied by Justice Thomas. But as I tweeted on the morning that Cooper came down and Mark Joseph Stern explained in more detail in Slate, Justice Thomas’s vote should not be a surprise. As he explained in detail in his partial concurrence and partial dissent in Bethune-Hill and reiterated in his concurrence in Cooper, he believes that the conscious use of race in government decisionmaking should be subject to the strictest of scrutiny – and it is this hostility to the use of race in decisionmaking that has made him hostile to the way the Voting Rights Act is interpreted and applied (see his dissent in Alabama Legislative Black Caucus v. Alabama for some discussion of this point). In other words, Justice Thomas’s views about the law across these cases are fairly consistent, even if they do not map onto a traditional liberal-conservative understanding.

As prolific election law blogger and scholar Rick Hasen suggests, however, the bigger surprise may be that Justice Kennedy, who authored the opinion for the Court in Bethune-Hill, joined Justice Alito’s partial dissent here. Hasen speculates persuasively that Kennedy was uncomfortable with the majority’s handling of an earlier precedent requiring racial gerrymandering plaintiffs to produce an alternative map that meets the state’s legitimate criteria; the Cooper majority reads that requirement as simply setting out one way, but not the only way, for plaintiffs to prove that race predominated. Justice Alito’s partial dissent vehemently disagrees with that reading.

Cooper is very important, although just how important is in dispute. Some, like Hasen, think that these cases may make it harder for racial gerrymanders to be defended as partisan gerrymandering, at least in the South where race and party affiliation are very highly correlated, thus giving voting rights advocates more ammunition. Others, like equally prominent scholar Richard Pildes, argue that Cooper involves only a fact-specific disagreement about application of well-established legal propositions. There is no question, however, that Cooper, along with Bethune-Hill, will be pored over by legislators, and courts alike. Indeed, SCOTUSblog is sponsoring a symposium to discuss these cases.

The Court made other election-related news yesterday when it declined to hear full argument in Republican Party of Louisiana v. Federal Election Commision, instead simply summarily affirming. (There are a small number of cases, like this one and the voting cases just discussed, in which there is a three-judge district court and an appeal as of right. The Court can summarily affirm or, at least theoretically, summarily reverse, or it can set the case for argument and consider it on the merits. The precedential value of a summary affirmance is weaker than merits consideration because it does not contain any reasoning or approval of the lower court’s reasoning; it only affirms the bottom line.) Republican Party of Louisiana involves an unsuccessful challenge to the McCain-Feingold campaign finance law’s regulation of certain donations, known as “soft money,” to state and local parties. This summary affirmance was particularly notable, however, because Justices Thomas and Gorsuch indicated that they would have set the case for oral argument and a full merits decision. Kate Ackley of Roll Call rounds up reaction to the Court’s action and to Thomas and Gorsuch’s disagreement with it.

The Court also issued opinions in two other cases on Monday. First in an 8-0 opinion by Justice Alito, it held in Water Splash, Inc. v. Menon that under an international treaty known as the Hague Service Convention, international service of process by mail is permissible. And in an 8-0 opinion by Justice Thomas in TC Heartland LLC v. Kraft Food Group Brands LLC, the Court limited the places where patent suits can be brought by interpreting the statute to mean that a defendant’s “residence” is its place of incorporation only. This ruling limits a patent infringement plaintiff’s ability to forum shop, and will particularly affect the district in Texas where 40% of patent suits are filed due to a perception about friendly judges and juries, Reuters explains. In the same article, IIT Chicago-Kent law professor Greg Reilly points out that as a result, fewer cases are likely to be filed at all, which would be “a positive step for those who think there is a problem of a lot of poor-quality patents being enforced.” Adam Liptak for the New York Times explains that the decision is a blow to “patent trolls,” companies or individuals who buy patents for the sole purpose of “demand[ing] royalties or sue[ing] for damages.”

Finally, this paragraph from last week’s post remains true today:

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The Court will hold Conference on Thursday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when it does.

On Monday, the Supreme Court issued its Order List from last week’s Conference and also issued opinions in three cases. Perhaps the biggest news of the day was the Court’s denial of certiorari in North Carolina v. North Carolina State Conference of the NAACP. The North Carolina case involved a challenge to the state’s particularly strict voter ID law, a law that also cut back on early voting and made other changes in voting that had a particularly negative effect on African-Americans voters. The law was passed in the immediate wake of Shelby County v. Holder, in which the Court struck down the preclearance requirement of the Voting Rights Act. As a result, for the first time in decades, North Carolina was able to make wholesale changes to its voting and election laws without demonstrating, either to the Justice Department or to the D.C. District Court, that the changes would not harm minority voters. The law was challenged as violating the Voting Rights Act and the Fourteenth and Fifteenth Amendments. The district court held that the plaintiffs had not established either discriminatory effect or discriminatory intent. The Fourth Circuit reversed, holding that the legislature had targeted African-American voters “with almost surgical precision,” and it enjoined the law.

The State of North Carolina, its then-Governor, a Republican, and other officials, represented by the then-Attorney General, also a Republican, filed a cert petition. In January 2017, however, a new Governor and Attorney General, both Democrats, were sworn in, and the new Attorney General sought to withdraw the cert petition. The state legislature, which is and was under Republican control, objected, arguing that state law did not authorize the Attorney General to withdraw and that state law authorized them to retain their own counsel. As Chief Justice Roberts put it in a statement respecting the denial of certiorari, “a blizzard of filings” ensued. In light of the complex state-law dispute that the Court was faced with, Roberts admonished that the denial of certiorari is not a decision on the merits.

The Supreme Court’s denial of certiorari, however, does leave the Fourth Circuit decision intact. This is a victory for voting rights advocates, but it may not be a permanent one, as Ian Millhiser for Think Progress explains. Noted election law scholar and commentator Rick Hasen argues that the Chief Justice, who also wrote a statement respecting the denial of certiorari in a Texas voter ID case, is both encouraging states to continue to litigate these cases and is likely to be particularly unfriendly to plaintiffs’ claims under the Voting Rights Act when such a case finally reaches the Court. And the New York Times reports that the leadership of the Republican-controlled legislature in North Carolina is vowing to enact new voting restrictions.

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The three opinions issued yesterday are in contrast to the three high-profile issues at issue in the cert petitions just discussed, although the issues presented are important. In Kindred Nursing Centers Limited Partnership v. Clark, the Court held 7-1 that a state cannot impose a requirement for a power of attorney to enter into an arbitration agreement that it does not impose on other contract provisions. The lone dissenter, Justice Thomas, adhered to his view that the Federal Arbitration Act does not apply in state courts, but the rest of the justices (other than Justice Gorsuch), in an opinion written by Justice Kagan, emphasized that arbitration clauses cannot be treated differently from other contractual terms. Indeed, as several commentators noted, the opinion could have implications for a variety of state attempts to protect consumers from arbitration agreements. This almost unanimous holding is surprising in some ways, as the Court has often split 5-4 on its reading of the FAA. But it is unsurprising in light of Justice Breyer’s expressed concern at oral argument “that Kentucky just doesn’t like the federal law … [s]o they’re not going to follow it.”

In Midland Funding LLC v. Johnson, the Court held 5-3 (with Justice Breyer joining the conservatives) that a creditor does not violate the Federal Debt Collection Practices Act by filing a proof of claim in bankruptcy court for a debt it could not otherwise collect due to the statute of limitations. In the Wall Street Journal, Jess Bravin provides some real world context for the “big business” of collecting time-barred debts. Bloomberg has more here. And in Howell v. Howell, the Court held that a veteran who waives military retirement pay in favor of disability payments does not have to indemnify his spouse for the lost retirement. Amy Howe of SCOTUSblog provides more information and explanation.

The Court will have Conference on Friday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when they do.