Herrera v. Wyoming is a case of dueling Supreme Court precedent. Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming. He was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land. In Herrera v. Wyoming the Supreme Court will decide whether Wyoming's admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in Big Horn National Forest. To decide this case the lower court applied a 1995 Tenth Circuit decision Crow Tribe of Indians v. Repsis, which raised the same question. In Repsis, the Tenth Circuit held that the “Tribe’s right to hunt . . .  was repealed by the act admitting Wyoming into the Union” and that “the creation of the Big Horn National Forest resulted in the ‘occupation’ of the land.”

Last week, in a 7-2 decision in Minnesota Voters Alliance v. Mansky, the Supreme Court struck down Minnesota’s law barring “political apparel” from a polling place on Election Day because even in a nonpublic forum, “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.” Although Minnesota lost the case, the Court affirmed that States (and local governments) may validly exclude certain forms of advocacy, including passive advocacy like...

In a 5-4 decision which resulted in 4 separate dissents, today, the Supreme Court held in Carpenter v. United States that the government conducts a search for the purposes of the Fourth Amendment when it obtains a cell phone user’s cell-site location information (CSLI) from a third party wireless provider. Although the Court explained the Orwellian implications of allowing the government to have “near perfect” retrospective surveillance of a user, “as if it had attached an ankle monitor to the...

It is estimated that states and local governments lose between $8 and $33 billion dollars each year as a result of the Supreme Court’s “physical presence” requirement. In a huge win for state and local governments, today, the Supreme Court announced in a 5-4 opinion that the “physical presence rule” for the purpose of requiring out of state sellers to collect and remit sales tax is “unsound and incorrect,” has limited States’ and local governments’ “ability to seek long-term prosperity,”...

In South Dakota v. Wayfair the Supreme Court ruled that states and local governments can require vendors with no physical presence in the state to collect sales tax. According to the Court, in a 5-4 decision, “economic and virtual contacts” are enough to create a “substantial nexus” with the state allowing the state to require collection. In 1967 in National Bellas Hess  v. Department of Revenue of Illinois, the Supreme Court held that per its Commerce Clause jurisprudence, states and local governments cannot require businesses to collect sales tax unless the business has a physical presence in the state. Twenty-five years later in Quill v. North Dakota (1992), the Supreme Court reaffirmed the physical presence requirement but admitted that “contemporary Commerce Clause jurisprudence might not dictate the same result” as the Court had reached in Bellas Hess. Customers buying from remote sellers still owe sales tax but they rarely pay it when the remote seller does not collect it. Congress had the authority to overrule Bellas Hess and Quill, but never did so.

Today, in narrow 7-2 ruling, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of the cakemaker, concluding that in adjudicating whether his religion “must yield to an otherwise valid exercise of state power,” (here the anti-discrimination provision of the state’s public accommodation law), the Colorado Civil Rights Commission failed to consider the case “with the religious neutrality that the Constitution requires.” This cases presented, as Justice Kennedy put it, “difficult questions as to the proper...

In South Dakota v. Wayfair South Dakota is asking the Supreme Court to overrule precedent and hold that state and local governments may require retailers with no in-state physical presence to collect sales tax. The National Conference of State Legislatures estimated that states lost $23.3 billion in 2012 from being prohibited from collecting sales tax from online and catalog purchases. In 1967 in National Bellas Hess  v. Department of Revenue of Illinois, the Supreme Court held that per its Commerce Clause...

Monday, April 2nd in a per curiam opinion, the Supreme Court granted, vacated, and remanded Kiesla v. Hughes, a qualified immunity case out of the Ninth Circuit. This is another instance of the Supreme Court reminding lower courts that they cannot analyze the clearly established prong of the qualified immunity inquiry at too high of a level of generality or utilize case law which was decided after the incident in question. In this case, police officers received a report that a...

The challengers to the redistricting of Maryland’s Sixth Congressional District just might win—if the Supreme Court actually decides their case. In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting. Following the redistricting, Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that, Republican Larry Hogan won the Sixth District, beating his rival by 14 percent. A number of Sixth District Republicans sued alleging the state legislature “targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine.” In 2016, a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment. But two of the judges weren’t convinced that the challengers were able to demonstrate that but-for the partisan gerrymander, Republicans would have won and continued winning in the Sixth District.

If there ever was a case where the vote of only one Justice is likely to matter it is Janus v. American Federation of State, County and Municipal Employees. All attention was focused on Justice Gorsuch yesterday morning as the Supreme Court held oral argument in this case. And, he was…silent. The Court will decide the constitutionality of state statutes allowing public sector employers and unions to agree that employees who don’t join the union must still pay their “fair share” of collective bargaining costs. More than 20 states authorize fair share for public sector employees. In Abood v. Detroit Board of Education (1997) the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. So no free-riders are allowed. Why is only Justice Gorsuch’s vote likely at play in this case?