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?

The state-action immunity doctrine may be obscure but that doesn’t stop the Supreme Court for accepting a steady diet of cases involving the issue. State-action immunity provides states and, in some instances, local governments immunity from federal antitrust liability. In Salt River Project Agricultural Improvement and Power District v. SolarCity the Supreme Court will decide whether a lower court’s refusal to rule state-action immunity applies to a particular entity may be appealed immediately or only after the case is fully litigated.

Congress created the Edward Byrne Justice Assistance Grants (Byrne JAG) in 2005 to provide “flexible” funding for state and local police departments. In April 2017 the Department of Justice (DOJ) required Philadelphia (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials. Philadelphia sued Attorney General Jeff Sessions arguing that the City complies with 8 U.S.C. 1373. A federal district court in Philadelphia agreed and issued a preliminary injunction preventing Sessions from denying the City Byrne JAG grant funding.

Lozman v. City of Riviera Beach is a double redux. The Supreme Court ruled on this case in 2013 on a maritime issue. The Court agreed to decide the issue this case presents in 2011, but ultimately failed to rule on it then. What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for a different, legitimate reason? In Lozman v. City of Riviera Beach the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights.

If Attorney General Jeff Sessions has his way the answer will be yes he told the Senate Judiciary Committee shortly after two federal district courts temporarily prevented the third travel ban from going into effect. The president’s March 6 executive order (the second travel ban) prevented people from six predominately Muslim countries from entering the United States for 90 days. In June, the Supreme Court temporarily prevented the ban from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October. The second travel ban was set to expire on September 24. That day the President issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Persons from some of these countries and Venezuela also may not receive particular non-immigrant visas. Following the presidential proclamation, the Supreme Court dismissed the case challenging the second travel ban. Shortly before the third travel ban was supposed to go into effect federal district courts in Hawaii and Maryland issued temporary injunctions blocking it.

South Dakota has filed a petition in South Dakota v. Wayfair asking the U.S. Supreme Court to hear a challenge to its law requiring out-of-state retailers to collect sales tax. In Quill Corp. v. North Dakota (1992), the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In March 2015, Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” Justice Kennedy criticized Quill in Direct Marketing Association v. Brohl for many of the same reasons the State and Local Legal Center stated in its amicus brief. Specifically, internet sales have risen astronomically since 1992 and states and local governments are unable to collect most taxes due on sales from out-of-state vendors. Following the Kennedy opinion a number of state legislatures passed legislation requiring remote vendors to collect sales tax. South Dakota’s law is the first to be ready for review by the U.S. Supreme Court. In September the South Dakota Supreme Court ruled that the South Dakota law is unconstitutional because it clearly violates Quill and it is up to the U.S. Supreme Court to overrule it. 

At the Supreme Court’s “long conference,” where it decides which petitions—that have been piling up all summer—to accept, the Court agreed to hear two unrelated cases involving car searches. Per the Fourth Amendment police officers generally need a warrant to search a car. However,  the automobile exception allows officers to search a car that is “readily mobile” without a warrant if officers have probable cause to believe they will find contraband or a crime has been committed.  Collins v. Virginia raises the question of whether the automobile exception applies to a car that is parked on private property.

In 2016, the Supreme Court was expected to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. Justice Scalia died shortly after the Court heard oral argument in Friedrichs v. California Teachers Association. The Court ultimately issued a 4-4 decision which, practically speaking, kept Abood v. Detroit Board of Education (1977) on the books. With a ninth Justice now on the bench the Supreme Court has agreed to try again to decide whether to overturn Abood in Janus v. American Federation of State, County and Municipal Employees. More than 20 states authorize fair share for public sector employees. In Abood 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.