Supreme Court Update: Orders

January 22, 2018 Supreme Court Update

Greetings, Court Fans!

It may have taken a government shutdown, but the Supreme Court has at last handed down its second (and third and fourth) argued decisions of the term. Thanks to the Judiciary's three-week reserve of court fees, The Nine reported to work as usual this morning (figuratively; actually Justice Sotomayor stayed home) and issued decisions in three cases.

In National Association of Manufacturers v. Department of Defense (No. 16-299), the Court unanimously held that challenges to the EPA's Waters of the United States Rule must be filed in federal district courts and cannot be raised directly in the courts of appeals, as is permissible for challenges to certain other EPA actions. In Artis v. District of Columbia (No. 16-460), the Court held 5-4 that the provision of the supplemental-jurisdiction statute that tolls state-law limitations periods while ancillary state claims are considered by a federal court "stops the clock," such that whatever remains of the state limitations period, plus the extra thirty days provided by statute, will resume upon the federal court's dismissal of the state-law claims. And in District of Columbia v. Wesby (No. 15-1485), the "reasonable partygoer case," the Court held unanimously (with two separate concurrences) that police officers had probable cause to arrest partygoers found in a vacant house for unlawful entry, notwithstanding their claims that "Peaches" had given them permission to be there.

We'll have more on these decisions as soon as we've digested them. In the meantime, we've got more to report on the Orders front. As expected, on Friday afternoon the Court granted certiorari in Trump v. Hawaii (No. 17-965), the challenge to the third iteration of the President's so-called "Travel Ban" (aka "Entry Ban," "Muslim Ban," or "Executive Order to MAGA," depending on your views). This is the second time the Court has agreed to review the Travel Ban. Back in June, the Court granted the Government's request to review lower court decisions enjoining the second iteration of the ban (the first having been voluntarily rescinded), but removed the case from its calendar after it was rendered moot by the President's issuance Proclamation 9645, which tweaked the ban yet again. The current version eliminates many of the most obvious problems with the first iteration. Most notably, the selection of affected countries was based on an ostensibly objective review process and includes three countries (Chad, Venezuela, and North Korea) that are not majority Muslim. Nevertheless, district courts in Hawaii and Maryland enjoined the ban and (while the Fourth Circuit has strangely dragged its feet) the Ninth Circuit affirmed the Hawaii injunction in December. As we noted last week, the Government sought expedited review of that decision and the respondents facilitated the effort by filing their brief in opposition to certiorari just one week after the Government filed its petition. In its order granting cert, the Court agreed to consider all three questions raised by the Government—whether Hawaii's challenge to the Travel Ban is justiciable, whether the ban is a lawful exercise of the President's power to suspend entry of aliens abroad, and whether the District Court's injunction is overbroad—and also directed the parties to brief a fourth question raised by the challengers: Whether the Travel Ban violates the Establishment Clause of the First Amendment. Barring yet another version of the ban, it appears we'll have an answer to those questions in June, late June.

It remains to be seen whether we'll also have a SCOTUS decision on DACA. As expected, the Government filed a petition for certiorari before judgment on Friday seeking to bypass the Ninth Circuit's review of a district court order enjoining the DOJ from rescinding the Obama-era policy. The Supreme Court rarely grants petitions for cert before judgment and, given that the Senate has just (literally in the time since we began compiling this Update) voted to reopen the government based upon a promise to vote on a "clean" DACA fix, it seems fairly likely that the Court will opt to sit this one out unless and until it is compelled to act. That's fine by us, as we've got plenty of other big-ticket cases to keep us busy this term.

Which brings us to the final notable Order from last week, concerning one of the big-ticket issues before the Court this term. In Rucho v. Common Cause (No. 17A745), the Court stayed an order of a three-judge district court in North Carolina striking down the State's congressional map as an unconstitutional partisan gerrymander and requiring the legislature to draw a new map by January 24 (i.e. Wednesday). Justices Ginsburg and Sotomayor would have denied the application for a stay but issued no opinion. The appeal will continue, but the stay effectively ensures that, regardless of the ultimate outcome, the North Carolina's congressional map will not be redrawn before the midterm elections in November.

That's all for this shutdown-and-reopened edition of the Update. We'll have summaries of NAM, Artis, and Wesby for you in short order.