The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


We Have Opinions (from SCOTUS)

The Supreme Court issues three opinions, for a grand total of four so far this term.


The relative dearth of Supreme Court opinions this term was beginning to worry some court watchers. As I noted here, Adam Feldman's research indicates the Court was issuing opinions at its slowest pace in over 100 years. Whether spurred by the critical commentary or (more likely) because opinions were simply ready to issue, the Court handed down decisions in three cases yesterday, lessening the drought.

The Court was unanimous in National Association of Manufacturers v. Department of Defense. This is the so-called "WOTUS" case, concerning legal challenges to the Obama Administration's regulation re-defining "Waters of the United States" under the Clean Water Act. The WOTUS rule was controversial because the Obama Administration adopted an expansive interpretation extending federal regulatory jurisdiction quite broadly. This decision was not about the lawfulness of the WOTUS rule, however, but about whether challenges to it should be filed in circuit or district court.

In a unanimous opinion by Justice Sotomayor, the Court agreed with NAM and the other petitioners that WOTUS challenges should be filed in district court. This is no surprise. This is an outcome amply supported by the relevant statutory text and that was clearly indicated at oral argument. What this means is that pending challenges to the Obama Adminstration's rule—and expected challenges to the Trump Administration's attempt to revoke it—will proceed in district court.

In a second opinion, also unanimous in the judgment, the Court held that police officers had probable cause to arrest partygoers because the "totality of the circumstances" sugggested the partygoers lacked permission to be in the house. Justice Thomas wrote the opinion in District of Columbia v. Wesby. Justice Sotomayor wrote an opinion concurring in part and concurring in the judgment, and Justice Ginsburg concurred in the judgment in part.

The unanimity did not continue, however. In Artis v. District of Columbia the Court split 5-4 over the question of what it means to "toll" state law claims under 28 U. S. C. §1367(d). Justice Ginsburg wrote the majority and Justice Gorsuch wrote the dissent. This was not the usual 5-4 opinion, however, as the role of swing justice was played not by Justice Anthony Kennedy but by the Chief Justice, who joined the more liberal justices.

Interestingly enough, the division in Artis was foreshadowed in a recent Chris Geidner article suggesting the Chief Justice has "moderated" his jurisprudence in important respects. If Geidner is correct, this line-up could be a sign of things to come.

The Court also issued order yesterday, and granted certiorari in the Endangered Species Act case I previewed here. Of note, the attorney for the petitioners in that case (Tim Bishop) also argued the WOTUS case.