Supreme Court

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.

NEXT: Linguification

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  1. “moderated” his jurisprudence”

    That Roberts pick looks better and better. Spits.

    GOP presidents are 3-2 and under .500 since Nixon’s 1-3 record. Dem presidents are 4-0 and have not struck out since JFK.

    1. Their success rate depends on what you assume they’re attempting to do, of course. I tend to think Republican Presidents would have had a much better success rate if they’d been trying to succeed…

      1. I wonder if you would have the same reaction if an appeals court had ruled against Artis and the decision had been reported in one of the Short Circuit posts. I doubt it.

        I think your reaction is based on the positions of the Justices, not the substance of the case. If not, explain why you think the majority is wrong.

    2. I like how you don’t even pretend to evaluate the merits of decisions, but just assume that the job of a judge appointed by a Republican is to vote for Republican policy preferences.

      1. Federal courts are political institutions now. You can see it with all the ButTrump “Resistance Judges”.

        Democrat appointed justices vote 99% for Democratic policy preferences. I would like to get over 50% for mine.

      2. I like how they’re super pissed about what it means to toll state law claims. It kinda has the shape of a partisan issue in the opinion breakdown, so it becomes the latest litmus test for a proper conservative judge.

        1. Nobody is “super pissed about what it means to toll state law claims”. One has to care to be pissed.

          The decision means nothing, not even worth a read, its the trend of Roberts decisions.

          But we knew all about Roberts already.

          1. The decision is only a part of a trend if you don’t look at the substance, just look at the justice breakdown, and then use confirmation bias to sample only the opinions where Roberts votes with the liberals.

            It’s not even anecdote as data, it’s bad data as anecdote as data.

            That’s not stating facts, it’s fixing a narrative. Badly.

          2. Scalia would have joined the majority opinion, since it is textually stronger, and because he hated the ALI. The dissent ignores the text in favor of the statute’s “modest role” divined from “a rich common law and state statutory tradition” and the “original reasons for [the statute]”. Whatever this is, it isn’t strict textualism. The reliance on a state statute existing at the time of 1367(d)’s enactment to interpret “tolling” and “tolled”, even though the state statute contained neither word, is textually nonsensical. Scalia and Garner have a book on how to interpret statutes, and it calls for a different result than the dissent calls for. We could (and should) just as easily derive a different intent from the federal statute, since it used different language from the state statute(s) on which it was allegedly based.

          3. “The decision means nothing, not even worth a read, its the trend of Roberts decisions.”

            It’s not a Roberts decision. Ginsburg wrote it.

    3. You have to remember who is the author of the pathetic “story” regarding Roberts “moderation.” It’s buzzfeed droppings from a degenerate who is desperate to see a silver lining the in the Supreme Court when the Democrats really thought and believed with all of their heart that their lesbian queen was going to pack the court with Ginsburg clones.

      1. Hey, Mini-Me made it over from the Washington Post! I figured he was mired in a bog of right-wing bigotry someplace.

        I should have recognized that the mini-me legs, tiny as Trumpian fingers or a conservative’s heart, would make it a long journey.

        1. You are trying too hard Comrade. I’ve already posted here, you even posted your typical broken record comments back (I do live rent free in your head after all). Apparently you are too stupid to remember.

          1. I guess I’m not paying as much attention to you as you are to me.

            As it should be.

            (More from the master. Skip the first 90 seconds.)

            1. No, I just don’t have the IQ of a rodent, unlike you. I understand, that with your limited intellect, it requires immense concentration to repost the same, tired, and debunked talking points to every thread. How do you like that new peer reviewed Harvard research that shows that Christianity is thriving and getting stronger in America?

              Carry on, bitter Comrade.

              1. Your preferences are stale, and lousy, and fading in America. Superstition, in particular, is waning. You can’t even come up with your own pseudonym.


                1. “[T]he percentage of church-attending Americans relative to overall population is more than four times greater today than it was in 1776.” “The number of [church] attendees has continued to rise each and every decade over our nation’s history right up until the present day.”

                  Carry on bitter Comrade.

                  1. Clumsy cherry-picking is weak. Church attendance is declining in America during the modern period (whichever modern period one chooses).

                    The number of right-handed Americans has increased each and every decade, too. Do you infer that right-handedness is becoming more popular or common?

                    Reason is beating superstition in the battle of ideas in America. Education, tolerance, science, inclusivity, and progress are winning, too.

                    That’s what makes America great.

      2. Reply to this comment if you miss the old VC where you could have both of these nerf herders on ignore.

  2. “You can see I must act in bad faith because everyone who disagree with me is already doing so!” Oy.

    Making up numbers only underscores how you are substituting certainty that things are unfair for you for evidence that it is. I can point to no shortage of liberals deeply disappointed with Democratically appointed judges.
    Your ‘Democrat judges’ is also telling – the party of the President hasn’t mattered for non-appellate judges until now. Executive scrutiny and politicization of district courts seems to be a new practice this administration has put into practice.

    Are you backsliding? It looks like you’ve returned to using ‘Democrat’ as an adjective?

  3. Its not “Democrat judges” , its “Democrat appointed judges”

    A single member of the party is a Democrat. Democrat is proper because a single Democrat (Obama or Clinton) made the appointment even with your silly fixation about the party name.

    1. Actually, I think it is conservatives – champions of tradition and propriety – who have an odd fixation about using “Democrat,” ungrammatically, as an adjective.

      1. The oldsters among us know when and how that usage came into prominence.

      2. It’s a silly practice, somewhat meant to be annoying, but you’ve got it backwards. They’re using “Democrat” as a name, precisely because “democratic” IS adjective.

        It’s a way of implying that the adjective isn’t accurate.

        1. OK. It’s a stupid, inaccurate, playground level insult. I’ll buy that. About what I expect from Republicans.

          Of course, if a political party actually devoted a lot of effort to keeping voters away from the polls it would be fair to say it wasn’t devoted to democracy.

  4. The tolling case is one of those cases — and there are many of them — in which it is more important to have some clearly understood rule rather than any particular rule. And it is a case where Congress can easily fix things if anyone cares. That Gorsuch would break out such heavy artillery — really, is this the case where you want to trot out that Chestertonian chestnut straight from the manual? — on such an issue tends to confirm the developing perception that he is an ass.

    1. Do you think that if you say that there’s a “developing perception” of something you just made up that it will become a self-fulfilling prophecy?

      Because, you know, I agreed with everything you wrote until that point, at which point it kind of confirmed the developing perception that you are an ass.

      1. I’m not that original. There are already stories, which you can look up and believe or not as you choose, that Gorsuch’s manner has already soured some of his colleagues on him, and he has shown in public utterances on and off the bench what those colleagues dislike.

        1. That there was one ridiculous story somewhere which said something does not turn it into a “developing perception.” It was a one partisan hack somewhere making the claim. (The same partisan hack used the same argument years earlier to spin Sotomayor as becoming an effective justice.) That it was retweeted and commented on doesn’t mean anyone really thinks that.

    2. Frankly, the Gorsuch dissent in Artis v. District of Columbia makes far more sense than does the majority opinion. And his analysis on just which approach – the “stop the clock” approach or the grace period approach – is justifiable as an exercise of Federal power when used to interfere with a State’s right to set its own rules of law on limitations of state law actions is spot on. There is simply no logical basis for asserting that the “stop the clock” approach which the majority adopts is either necessary or proper to protect federal jurisdiction or the efficient operation of the federal judiciary. The plaintiff in Artis had the opportunity to refile in the proper court once her state law claims were dismissed – 30 days. That is more than enough time. Her attorney blew it. There is no need to rewrite the statute merely to protect an incompetent attorney from a meritorious malpractice claim.

      1. If Congress has the power to impose a grace period rule on the states, it has equal power to impose a “stop-the-clock” rule on them. That the latter might strike you, or me, or some of the Justices, as a bad idea or as “more” of an imposition than the former doesn’t affect the question of power. The question of power aside, this is a technical, procedural issue for which getting a clear answer is more important than getting the “right” one. And I say that as someone who, without having studied the issue, leaned toward the “grace period” view. Congress can easily fix this. So why the high dudgeon on Justice Gorsuch’s part? What can we expect on a real issue?

        1. Your conclusion – that if Congress has power to do A, then it also has power to do B – is utterly illogical. It is precisely that kind of thinking that resulted in the Wickard v. Filburn decision – if Congress has the power to regulate how much wheat you can sell in interstate commerce, it must also have the power to regulate how much wheat you can grow for your own use. One does not follow from the other. The fact that Gorsuch sees the distinction and you don’t makes me ecstatic that Gorsuch, and not you, got the seat on the Court.

          1. That’s a… terrible analogy. We’re not talking about A (interstate commerce) vs. B (intrastate commerce). We’re talking A (extend the state statute of limitations) vs. A (extend the state statute of limitations).

            If you want to argue that the federal government can’t extend the state statute at all under N&P, that’s one thing — but it’s not what Gorsuch claimed. We’re talking about whether to extend it 30 days or a different period of time. Nothing in the constitution speaks to 30 days being okay but 60 or 90 days not being okay, other than a judgment call that 30 days is sufficient. But so is 15 days, so why is 30 days N&P?

        2. BTW, if you had truly studied this issue, you know that 28 U.S.C. 1367, enacted in 1990, was a Congressional reaction to Finley v. United States, a 1989 decision which did away with the whole concept of “ancillary jurisdiction” and “pendant jurisdiction”, judicial fictions which arose in the latter half of the 20th century by which Federal District Courts accepted jurisdiction over both claims and parties for which there was simply no basis to assert federal jurisdiction. I don’t doubt the power of Congress to expand federal jurisdiction, but when it intrudes upon a State’s sovereign authority to establish its own laws and its own rules of court, I think that Gorsuch is absolutely right that the Necessary and Proper Clause limits such intrusion to that which is essential to protect federal interests. The “grace period” approach meets that test. The “stop the clock” approach does not.

          1. I think the rest of your comment was swallowed up somehow. You know, the part that begins “because…” and gives a reason.

          2. “I think that Gorsuch is absolutely right that the Necessary and Proper Clause limits such intrusion to that which is essential to protect federal interests. The “grace period” approach meets that test. The “stop the clock” approach does not.”

            The grace period approach is no more essential to protect federal interests than the stop the clock approach. And since the text says what it says, and since the dissent just lectured the majority on telling the states what their interests are, why is Gorsuch lecturing Congress on what are essential to protect federal interests?

      2. Frankly, the Gorsuch dissent in Artis v. District of Columbia makes far more sense than does the majority opinion.

        There are two issues: (1) what is the best reading of the statute, & (2) is the tolling/stop-the-clock approach unconstitutional, such that the doctrine of constitutional avoidance suggests interpreting it the other way. The majority has the much more sensible answer to #1. The dissent’s approach requires using the word “tolling” in a very idiosyncratic way and renders language as surplusage.

        As to #2, the majority correctly notes that N&P has never been read to require that precise a fit between a legitimate federal objective & the means chosen. Of course stop-the-clock isn’t absolutely necessary ? but, then, neither is the grace period. One could file in both federal and state court, thus preserving its state claims if the federal case is dismissed. Silly to make them do it, but not impossible.

        Finally, the dissent’s paean to statutes of limitations is a bit overwrought. They’re tolled all the time for all sorts of reasons. Most states toll the statute for infants until the age of majority, which could be a lot longer than the unlikely pretend-horror scenario posited by the dissent in which a person files a claim with a six-year statute on day one, thus giving him six full years to re-file years later when his federal case is dismissed. /1

        1. The plaintiff in Artis had the opportunity to refile in the proper court once her state law claims were dismissed – 30 days. That is more than enough time. Her attorney blew it. There is no need to rewrite the statute merely to protect an incompetent attorney from a meritorious malpractice claim.

          You’re begins the question. Her attorney only “blew it” if the weird reading of “tolling” that isn’t used anywhere else in law is determined to be correct. /2

          1. EDIT: That should of course say “begging” the question, not “begins.”

        2. Frankly, if I were to guess the intent of Congress, I think Gorsuch’s reading makes more sense. It seems to me that the statute makes more sense to say you can file within the original statute of limitations or, if that’s gone, a thirty day window. I’m not sure the reason for the thirty day window as it currently stands, unless I’m missing something.

          That being said, if Congress had wanted to do that, “toll” is a very odd word to use and it would require a strained or unusual reading of that word to come up with the intended result.

  5. This was a technical and obscure case that revolved around the interpretation of a legal term, “toll”, in a statute. The notion that this case is indicative of any moderation by CJ Roberts seems like quite a stretch.

    1. When the societal tide is hard against you and persecution anxiety is high, even the tiniest grain of sand . . .

      1. When the only instrument you have is a drum, you just keep beating it.

        1. I was agreeing with you, Bored Lawyer.

          Are you attempting to pretend you don’t like one-drum kits? What is the Volokh Conspiracy, if not a right-wing drum used to bash liberals, libertarians, moderates, and RINOs to benefit movement conservatism?

    2. That is because you have an ideology beyond endless victimization.

    3. Maybe it revolved around the definition of “toll,” maybe not.

      It is interesting me, as a lay observer, that no one has mentioned the substance of Artis’ claim. It was an employment discrimination/whistleblower retaliation suit.

      Might that have influenced the thinking of some of the Justices? I mean in real life, not in legal theory-land.

      1. Bernard, I have used that statute, and it never even occurred to me that “tolled” means anything other than what the majority says it means. That is what tolled always means in the law.

        (For example, in NY, a claim by a minor is tolled until he or she reaches majority. Meaning, the Statute of Limitations does not even start to run until the person reaches his or her 18th birthday.)

        As a policy matter, I don’t see what the alarm is. SOLs are meant to protect against a situation where something happened a long time ago, and evidence is lost because people assume that nothing is going to happen. In the situation here, someone is sued in federal court. There is a case pending, with federal and state claims. So the person knows darn well they are being sued and have to defend. They have every reason to preserve the evidence.

        Then one day, the judge dismisses the federal claims for some reason, and then dismisses the state-law claims without prejudice — meaning the plaintiff can refile in state court. Why should the time the case was in federal court count against the SOL? They were already litigating in one court.

        The “grace period” interpretation makes little sense to me.

        1. BL,

          Again as a non-lawyer I always thought “tolled” meant what you and the majority say.

          I don’t think that means the answer to my question is “no.”

          Indeed, if you see no case for the “grace period” argument then it seems you must at least suspect, as I do, that the answer is “yes.”

          1. Anything is possible, but in this case I doubt it. The statute has very broad application — any time you have a case with both federal and state claims, it comes into play. There are many cases involving all kinds of parties where this happens.

            Among other things, I practice trademark law, usually involving business interests. Trademark is a federal cause of action under the Lanham Act. But there are also state-law causes of action allowed, and inevitably they are made part of the case. (In my experience, the generally add little to a trademark case, but lawyers feel compelled to add them in.)

            There are many other examples where large and small business interests are involved.

            Gorsuch is smart enough to understand this. So I am dubious that he thought, here is an employment case brought by an ex-employee, let’s screw her over.

            1. You may well be right. Maybe I am being overly cynical, but my feeling is that if the underlying case had been a corporation suing to invalidate some regulation it didn’t like we might have seen a different vote.

              It’s not so much that Gorsuch was trying to screw Artis over as that he, and the other dissenters, were inclined by the nature of the case to look hard for a line of reasoning that let them rule against her.

  6. First, Loki’s Law – if Kagan and Roberts are on the same side, it is like the correct one.

    The Gorsuch opinion is a mess. More importantly, any proponent of textualism would be embarrassed by it. Let’s ignore what the statute says, and what other federal statutes say, and just … I dunno, talk about some common law, amirite?

    So far I haven’t been impressed with Gorsuch. I was expecting a clear writer and powerful thinker; I have yet to see it. This is more like a conservative Breyer; constantly clearing his throat while rambling to unsupported destinations. Oh, and throw in a little unearned Scalia as well. You only get to be obnoxious when you earn it.

    1. Unearned Scalia is the name of my acapella-punk band that updates songs with legal lyrics.

      Footloose -> Footnotes
      Walking in Memphis -> Westlaw and Lexis

      That sort of thing.

      1. Huh, I would have guessed you were more of a soft rock person with titles like:

        Love Will Keep Us Together – Loving Will Keep Us Together
        Open Arms ? Open Carry of Arms
        You’re the Only Woman ? You’re a Transgender Woman

        1. Oh yes – punk covers of soft rock are the best punk covers!

          1. I prefer originals.

            Mostly. Not always.

    2. I’m no Breyer fan either, but at least his throat-clearing and rambling sound like that of an actual human being, and the general unpredictability of where he is going to come out and why reflects actual thinking, whatever we may think of its quality. I’m beginning to see a Stepford Justice in Gorsuch, constantly flipping the pages of a massive manual full of set pieces for all occasions — even occasions that don’t call for them, like this one.

      1. Gorsuch, to date, has been surprisingly bad. That said, the opinion attracted four votes, which shocked me.

        Don’t get me wrong; you never know where Kennedy’s muse will take him.
        And I fully expect Alito to be, um, Alito.

        But I was somewhat surprised that Thomas joined the opinion. *shrug*

        1. I suspect Thomas voted with Gorsuch for a reason similar to that which inclined plenty of Republicans voted for Trump.

          Gorsuch isn’t Ginsburg. Or Sotomayor. Or Kagan. In other words, a female Democrat.

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