Today at the Court: June 25 Session

Today marked the first day of what is likely to be the last week the Court releases opinions from argued cases. First, beginning at 9:30am EDT, the Court announced the seven petitions that were granted certiorari for next term. These are as follows: Sudan v. HarrisonWashington Dept. of Licensing v. Cougar Den, Dawson v. Steager, Nutraceutical Corp. v. Lambert, Biestek v. Berryhill, Helsinn Healthcare v. Teva Pharmaceuticals, and Henry Schein, Inc. v. Archer & White Sales, Inc.

It is worth noting that two highly-anticipated petitions, Rucho v. Common Cause (No. 17-1295) and Arlene’s Flowers, Inc. v. Washington (No. 17-108) were denied certiorariRucho involved another partisan gerrymandering case, this time for the congressional districts in North Carolina. The Court vacated the lower court’s judgment and sent it back to the Middle District of North Carolina for further review in light of Gill v. Whitford, decided just one week ago. Arlene’s Flowers is a seemingly mirror-image case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, this time involving a florist who refused to make a custom flower arrangement for a same-sex wedding, citing her religious beliefs. In comparable fashion to Rucho, the Court vacated judgment and remanded the case back to the Supreme Court of Washington for further review in light of Masterpiece Cakeshop.

The list of Merits Cases on the Docket will be updated with the seven cases granted certiorari shortly. Since there will be no more Orders released this week, I will review these seven cases and determine whether any will be moved into the next round of my selection throughout the week.

Next, beginning at 10:00am EDT, the Court released opinions in two cases: Abbott v. Perez, the Texas racial gerrymandering case, and Ohio v. American Express Co., a credit card company antitrust case.

In Abbott v. Perez, the Court held that all but one of the challenged districts are lawful (the exception being House District 90, which the Court found to be a racially-gerrymandered district, in accordance with the District Court’s ruling). The vote was 5:4. Justice Alito wrote the majority opinion and was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch. Justice Thomas wrote a concurring opinion, which was joined by Justice Gorsuch. On the flip side, Justice Sotomayor wrote the dissenting opinion, which was joined by the three remaining Justices, Ginsburg, Breyer, and Kagan.

In Ohio v. American Express Co., the Court affirmed the lower court’s ruling, holding that a provision in the contract between American Express and its merchants accepting the use of their credit cards that bars the merchants from attempting to “steer” its customers into using a particular card does not violate federal antitrust law. Again, the vote was 5:4. Justice Thomas delivered the majority opinion and was joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. Justice Breyer dissented and was joined by Justices Ginsburg, Sotomayor, and Kagan.

Four cases remain on the Docket for this year’s term. Florida v. Georgia, No. 220142Janus v. American Federation of State, County, & Municipal Employees, Council 31, No. 16-1466Nat’l Institute of Family & Life Advocates v. Becerra, No. 16-1140; and Trump v. Hawai’i, No. 17-965Florida v. Georgia is a relatively quiet original jurisdiction case involving both states’ respective claims to the water in the Apalachicola-Chattahoochee-Flint River Basin.

The latter three cases, however, are all blockbuster cases that involve major implications for the Court’s jurisprudence. Janus involves a First Amendment free speech challenge to the Court’s holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which asserted that the government’s forcing of its employees to pay agency fees to an exclusive speaking and contracting representative with the government, who deals with policies that affect the employees’ professions, is constitutional. The questions presented, then, are whether Abood should be overruled and whether public sector agency fee arrangements be declared unconstitutional under the First Amendment.

Second, NIFLA v. Becerra is a “compelled speech case” and involves another First Amendment challenge (in this case, either free speech or free exercise) to California’s Reproductive FACT Act. The statute requires pro-life religious centers to post notices encouraging women to seek information from the state on free or low-cost abortions. It also orders unlicensed centers to add extensive disclaimers to their ads. The State has admitted that its purpose is to target “crisis pregnancy centers” based on the centers’ goal to “discourage abortions.” The question presented in the case is whether the provisions of California’s Reproductive FACT Act violate the pro-life religious centers’ rights to free speech contained in the Free Speech Clause of the First Amendment, applicable to the states through the Fourteenth Amendment.

Perhaps the most anticipated case of this year’s term, Trump v. Hawai’i, involves challenges to President Trump’s Proclamation No. 9645 of September 27, 2017, 82 Fed. Reg. 45,161. The proclamation suspends entry (with exceptions and case-by-case waivers) of certain categories of citizens in eight countries (Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela, and Chad) that decline to share “adequate information” with the U.S. or that present risks to national security. The questions presented are: (1), whether the challenge to the President’s suspension of entry of aliens abroad is justiciable; (2), whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad; (3), whether the global injunction is impermissibly overbroad; and, (4), whether the Proclamation violates the Establishment Clause of the First Amendment.

The Court will issue opinions in these four remaining cases sometime during the remainder of this week.

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