Supreme Court February sitting commences (2/24/20)

The February sitting has a number of interesting arguments. Everybody is going to be laser focused on the abortion circus on the last day of this sitting, but the two cases the day before are equally as important. There is the outside chance the entire Dodd-Frank Act could be struck down, though I believe the Supreme Court will more narrowly restructure the CFPB. Liu vs SEC could impact the ability of the SEC to get adequate relief in cases of major security law violations.

And of course, we start off with the high profile cases regarding attempts to run gas pipelines under the Appalachian Trail.

Should be a quite interesting sitting.

Monday 2/24

First two cases are consolidated:

Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, No. 18-1587 [Arg: 2.24.2020]

Issue(s): Whether the United States Forest Service has the authority under the Mineral Leasing Act and National Trails System Act to grant rights-of-way through national-forest lands that the Appalachian Trail traverses.

U.S. Forest Service v. Cowpasture River Preservation Association, No. 18-1584 [Arg: 2.24.2020]

Issue(s): Whether the United States Forest Service has the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.

Opati v. Republic of Sudan, No. 17-1268 [Arg: 2.24.2020]

Issue(s): Whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann , the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A© against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.

Tuesday 2/25

U.S. v. Sineneng-Smith, No. 19-67 [Arg: 2.25.2020]

Issue(s): Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

Wednesday 2/26

Lomax v. Ortiz-Marquez, No. 18-8369 [Arg: 2.26.2020]

Issue(s): Whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. 1915(g).

Monday 3/2

Department of Homeland Security v. Thuraissigiam, No. 19-161 [Arg: 3.2.2020]

Issue(s): Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.

Nasrallah v. Barr, No. 18-1432 [Arg: 3.2.2020]

Issue(s): Whether, notwithstanding 8 U.S.C. § 1252(a)(2)©, the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.

Tuesday 3/3

Seila Law LLC v. Consumer Financial Protection Bureau, No. 19-7 [Arg: 3.3.2020]

Issue(s): (1) Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers; and (2) whether, if the Consumer Financial Protection Bureau is found unconstitutional on the basis of the separation of powers, 12 U.S.C. §5491©(3) can be severed from the Dodd-Frank Act.

Liu v. Securities and Exchange Commission, No. 18-1501 [Arg: 3.3.2020]

Issue(s): Whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty.

Wednesday 3/4

Both cases consolidated:

June Medical Services LLC v. Russo, No. 18-1323 [Arg: 3.4.2020]

Issue(s): Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt .

Russo v. June Medical Services LLC, No. 18-1460 [Arg: 3.4.2020]

Issue(s): (1) Whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf; and (2) whether objections to prudential standing are waivable – per the U.S. Courts of Appeals for the 4th, 5th, 7th, 9th, 10th and Federal Circuits – or non-waivable per the U.S. Courts of Appeals for the D.C., 2nd, and 6th Circuits.

The June v. Russo/Russo v. June cases will be the most followed and cared about, on both sides.


But hopefully not to the exclusion of everything else.

Starting with the two Cow Pasture cases that will be argued later today (Monday).

These cases involve the running of gas pipelines under the Appalachian Trail a few miles south of Roanoke, Virginia.

The Fourth Circuit held in favor of Cowpasture River Preservation Association and blocked the pipeline. Both the Federal Government and the Pipeline Company appealed to the Supreme Court.

The Petitioners (Federal Government and the Pipeline Company) both assert that the statute creating the national trails system does NOT transfer jurisdiction of the trail from the National Forest to the National Park Service. Instead, they argue that while the Secretary of the Interior has the duty to manage the trail (and has delegated that duty to the National Park Service) overall jurisdiction of the land under the trail remains with the National Forest Service, given that the trail runs over a National Forest and nothing in the statute grants jurisdiction of the underlying land to the National Park Service.

Respondent Cowpasture River Preservation Association holds to the opposite view, saying that the statute should be read so as to give the National Park Service jurisdiction over the land, which would make it effectively impossible to grant a right of way for the pipeline.

I must side wholeheartedly with the Petitioners. I read the relevant sections of Chapter 27 of Title 16 of the United States Code. A fair reading clearly indicates the statute does NOT transfer jurisdiction over the land to the National Park Service. The Secretary of the Interior is authorized to administer the trail, but jurisdiction of the land remains with the Forest Service.

I would REVERSE the judgement of the Fourth Circuit and find in favor of the Petitioners.

The other case for today (Monday), Opati v Republic of Sudan, is a bit simpler. The relevant portion of the Foreign Sovereign Immunities Act is retroactive. I believe the Supreme Court will REVERSE the DC Circuit and restore the Petitioners original judgement against the Republic of Sudan.

I dont think we should have a pipeline running through those mountains

That opinion has nothing to do with the case.

Looks like a bz docket, I hope Justice Sotomayor has her “feelings”…compartmentalized?

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That seems like an easy one. The environmentalists are against, therefore it must be good. Run that pipeline baby!

This morning’s rather lengthy Supreme Court order list.

There was one new grant:

Issue : Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.

Additionally, the Court called for the views of the Solicitor General in two significant cases out of California:

Issue : Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.

Issues : (1) Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; and (2) whether California’s disclosure requirement violates charities’ and their donors’ freedom of association and speech facially or as applied to the Thomas More Law Center.

Starting on page 27 of today’s orders the Supreme Court issued a per curiam decision relating to a defaulted pension plan involving the Roman Catholic Church in Puerto Rico. Basically they cleared a jurisdictional train wreck from the tracks and once the Puerto Rican courts fix that on remand, then maybe a Free Exercise case can be considered. :smile: Justice Alito, joined by Justice Thomas, wrote a separate concurrence in the case.

Justice Sotomayor wrote a lengthy dissent from denial of certiorari in a capital case.

Justice Alito, joined by Justices Thomas and Gorsuch, wrote a concurrence in denial of certiorari in a Title VII case.

Justice Thomas, joined by Justice Alito, wrote a dissent from denial of leave to file a Bill of Complaint in Arizona v California, an original jurisdiction case. Justice Thomas is of the opinion that the Supreme Court lacks the power to refuse State v State original jurisdiction cases, a view that probably is correct.

Justice Thomas dissented from denial of certiorari in a “Chevron” case.

Due to the above, this order list goes 59 pages.

Based on today’s oral arguments, it looks like at least a a 6 to 3 majority in favor of the Petitioner’s in the Cowpasture cases. The 5 Conservative Justices plus Justice Breyer.