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Monday, May 29, 2017

Symposium Introduction: SCOTUS OT 2016

Welcome to the first (hopefully annual) PrawfsBlawg Symposium on the end of the SCOTUS Term. Our guests and regular Prawfs will be exchanging posts and talking to our readers and to one another about the final cases of the Term, as well as other issues relating to the Court.

I will get the conversation started with a few questions for consideration and discussion before the final month begins and we get into the flood of cases:

• By my count, there are 34 cases left to be decided. Which one(s) are you anticipating and why?

• Fourteen of those cases are from the April sitting, the only one in which Justice Gorsuch participated. Besides the obvious--no 4-4 splits--how do you anticipate Justice Gorsuch affecting the outcomes in these cases, compared with how they might have come out were the Court still short-handed? How does Gorsuch appear to have affected the Court's dynamics?

• What pending cert petitions are you watching and why? Which do you expect the Court to grant?

• Is Justice Kennedy going to retire at the end of this Term?

Feel free to start the month by discussing these and other issues not presented here.

Posted by Howard Wasserman on May 29, 2017 at 07:17 PM in 2018 End of Term, Howard Wasserman | Permalink


Re: Trinity Lutheran. Some reverse engineering and rank speculation. Not amounting to a prediction. (1) The Chief is in the majority and so he assigns the opinion. (2) His dilemma is whether to keep it for himself (like he did in Hosanna-Tabor) or to assign it to another in the majority. (3) I am guessing he has more than five votes so he has the luxury of losing one justice, still he is big on massing the Court. (4) So I am expecting him to assign it to Kagan over Kennedy (she who wrote a withering dissent in Town of Greece that Kennedy's majority did not stand up to very well). (5) Who dissents? At most two justices, but this is unclear to me: Ginsburg and/or Breyer who both support a weak idea of free exercise. (6) Locke barely survives but may be distinguished almost to death. (7) The majority has no stomach to rule against the so-called little Blaine amendment, and there is some doubt it is one and some history in an amicus brief that the Thomas/Scalia rant about those state constitutional provisions being anti-Catholic is vastly overstated (for the record I am Catholic so I still vote with them, which is why I would not be a good judge).

Posted by: Thomas E. Baker | May 30, 2017 10:15:22 AM

Like Rick H., I'm looking forward to Trinity Lutheran, and not only because it presents a variation of a question Michael Paulsen and I tried to get the Court to take up in a couple of 1999 cases. I like to think I'm also a "federalism guy" (and also a "subsidiarity guy") but, I suppose, our bleacher-separation on this one illustrates the always-true point the federalism debate is not so much about whether there should be *some* inter-state differentiation when it comes to law, policy, and culture -- I think there should be -- but how much.

While I would enjoy a ringing reminder by a unanimous or near-unanimous Court to the country of the pervasive and deep anti-Catholicism that shaped education policy, state laws, and constitutional doctrines for a century or so, I don't expect (and, given my increasing skepticism about motive-based judicial inquiries, probably wouldn't want) a sweeping "Blaine delenda est" ruling. It seems to me that a pretty modest -- even Locke-preserving -- ruling is possible here.

Posted by: Rick Garnett | May 30, 2017 7:57:47 AM

Trinity Lutheran Church v Comey is the case I am most excited about. The outcome is hardly in doubt: I assume that SCOTUS reverses the Eighth Circuit and strikes down the application of Missouri Constitution's "No-Aid" provision to Missouri's Scrap Tire Playground Resurfacing program. There is, however, an interesting question of whether SCOTUS will overrule Locke v. Davey or just narrowly construe it. I am a federalism guy, so I am rooting for Locke to survive. (Paul and Rick, I am assuing that you are cheering on the other side of the bleachers on this question).

Posted by: Rick Hills | May 30, 2017 5:41:51 AM

Kennedy doesn't retire. He's worried about his legacy, and doesn't want the last part of his legacy to be that he gave Trump another seat to fill.

Posted by: YesterdayIKilledAMammoth | May 29, 2017 10:02:15 PM

More than anything else, I am looking forward to an opinion in Esquivel-Quintana. The Court has avoided, for something like a decade, deferring to the Board of Immigration Appeals' adjudications on what offenses count as aggravated felonies, a defined term in immigration law the commission of which carries both immigration and collateral criminal consequences, and which some judges, notably Sutton, think falls outside the Board's Chevron powers given those collateral criminal consequences. It seems unlikely, given the extreme ambiguity of the subsection of the aggravated-felony definition at issue here (what counts as "sexual abuse of a minor," a term which itself is undefined in the statute and has, with apologies to petitioners, no generic meaning in the law whatsoever), that the Court can avoid deciding whether Chevron's applicable in this case. My hope is that the Court sees a way to holding that the use of this term in the criminal context doesn't have to mean the same thing as it does in the civil, that the Board does have delegated authority to resolve ambiguities in the use of the term in immigration statutes but not in criminal statutes, and that given the greater strength of criminal lenity than the somewhat mythical canon of immigration lenity, it makes all the sense in the world to give the term different interpretations in the two contexts. Cf. Duke Energy, Utility Air. But I'm not optimistic and fear the first of many intrusions into Chevron's domain in the years to come (though Gorsuch is out on this one and there did seem to be support at oral argument for deference from some surprising sources, namely Alito and Sotomayor).

The petitions that I am the most interested in at the moment, though they're hardly the most important petitions on the block, are:

(1) Bayou Shores SNF, LLC v. Fla. Agency for Health Care Admin., which is the only case I'm aware of in years where the SG's office has (at least openly) argued that a statute contains a drafting error, and a rather colossal one at that, namely that a jurisdictional bar in the Social Security Act of 1331/1346 jurisdiction was really intended to be a bar of *all* district-court jurisdiction save that granted over Social Security and Medicare by the Social Security Act itself. In theory this could be a sort of landmark on scrivener's error, on which there's been some renewed scholarly interest of late, though I think the case for error turns out to be exceptionally weak (much more so than lower courts have recognized). If you check Credit Slips I may have a post on this a little later this week.

(2) Negron v. United States presents, essentially, how to do Marks, whether in the hyper-technical logical-subset fashion favored by the D.C. Circuit, the petitioner, and I think the plurality of commentators on Marks, or a kind of predictive approach or swing-vote approach, which a greater number of circuits seem to prefer and which tend to weigh dissents in assaying which, if any, opinion is controlling. (See also what you might call Ryan Williams' additive approach in his recent "Questioning Marks," which I think is probably correct.) Marks is a fairly esoteric question that arises in interpreting a handful of cases, but where one comes down on Marks raises deep questions about your theory of precedent.

Posted by: Asher Steinberg | May 29, 2017 8:22:35 PM

This is a great idea, Howard! Given how large a share of the Court's work these days focuses on patent law, and – to a lesser extent – copyright and trademark law, I hope you have someone working up the IP cases.

Posted by: Joe Miller | May 29, 2017 8:18:39 PM

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