The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The biggest news out of the Supreme Court this morning was the 6-3 decision holding that Title VII's prohibition on discrimination in employment "because of . . . sex" encompasses discrimination based on sexual orientation and transgender status. Yet that was not all that happened today.
Before releasing opinions in argued cases, the Court released its order list. Among other things, the Court denied certiorari in several cases asking the Court to reconsider the doctrine of Qualified Immunity. Justice Thomas dissented from the denials, as Eugene noted below.
The Court also denied certiorari in several cases challenging state and local gun regulations on Second Amendment grounds. Although circuit courts are all over the place in their interpretation and application of Heller and McDonald, the Court does not appear eager to clarify the scope of the Second Amendment right now. Justice Thomas dissented here too, joined in part by Justice Kavanaugh.
A third notable cert denial came in United States v. California, in which the Solicitor General sought Supreme Court review of a Ninth Circuit opinion largely upholding California's "sanctuary city" law. No justice wrote a dissent from the denial of certiorari, but the orders list notes that Justices Alito and Thomas would have granted the petition.
The Court also issued a 6-3 per curiam decision in Andrus v. Texas, a habeas case, finding that the petitioner had demonstrated ineffective assistance of counsel, but remanding the case to the U.S. Court of Appeals for the Fifth Circuit to determine whether the petitioner suffered prejudice as a result. Justice Alito dissented, joined by Justices Thomas and Gorsuch.
Finally, in a second decision in an argued case, U.S. Forest Service v. Cowpasture River Preservation Association, the Court held that the U.S. Forest Service has the legal authority to grant rights-of-way across (or, more precisely, underneath) the Appalachian Trail. Justice Thomas wrote the majority opinion. Justice Sotomayor, joined by Justice Kagan dissented.
Justice Thomas' opinion in Cowpasture River is an interesting blend of statutory interpretation and property law, and it reached what I believe is the correct result. As Justice Thomas noted, the grant of a right-of-way easement across portions of a national forest does not transform that forest land into lands within the National PArks, even if the trail is overseen by the National Park Service. I think this paragraph nicely summarizes the key issue:
read in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service. To restate this conclusion in the parlance of the Leasing Act, the lands that the Trail crosses are still "Federal lands," 30 U. S. C. §185(a), and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail. Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.
The Supreme Court is scheduled to release additional opinions on Thursday.