Tuesday round-up

Yesterday the justices issued five opinions, deciding two high-profile partisan-gerrymandering cases, in both of which they avoided a ruling on the merits. In Gill v. Whitford, the justices held unanimously that the challengers to Wisconsin’s legislative map did not show that they had standing to challenge the map on a statewide basis; by a vote of 7-2, the court sent the case back to the lower courts so that the challengers could attempt to make that showing. And in Benisek v. Lamone, the court in a per curiam opinion with no noted dissent declined to disturb a lower-court ruling that left in place the boundaries of a congressional district in Maryland. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript provides graphic explainers for Whitford and Benisek, here and here. At Good Judgment, Ryan Adler remarks that Whitford “offers a very important reminder for forecasters.” For The Washington Post, Robert Barnes reports that the “rulings in the separate cases once again put off a decision on when courts can find that partisan efforts to keep parties in power go[] so far as to be unconstitutional,” but that “the court again left open a path for such challenges.” Additional coverage comes from Mark Sherman at the Associated Press, Nina Totenberg at NPR, Brent Kendall and Jess Bravin at The Wall Street Journal, Lyle Denniston at Constitution Daily, David Savage for the Los Angeles Times, Bill Mears at Fox News, Kevin Daley at The Daily Caller, Ariane de Vogue and Eli Watkins at CNN, Andrew Chung and Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, and Richard Wolf for USA Today, who reports that the rulings “could open the door for a third case from North Carolina to reach the court next term.”

At the Election Law Blog, Nicholas Stephanopolous “emphasize[s] the significant signs of promise in the Court’s decision” in Whitford, noting that “the Court’s new standing requirements for vote dilution plaintiffs should be easy to satisfy in many cases (including Whitford itself).” At Talking Points Memo, Tierney Sneed observes that the opinions “gave voting rights advocates a better idea of what arguments could be successful at the high court in the future.” At Slate, Richard Hasen maintains that “what’s really going on is that two of the court’s savviest justices on the right and left, Chief Justice John Roberts and Justice Elena Kagan, are continuing a battle for the soul of Justice Kennedy on the question of politics in redistricting, and Kennedy, who apparently is not leaving the court anytime soon, watches, broods, and stays silent.” Additional commentary comes from Howard Wasserman at PrawfsBlawg, Michael Parsons at Modern Democracy, Joey Fishkin at the Election Law Blog, Ruthann Robson at the Constitutional Law Prof Blog, and Garrett Epps at The Atlantic, who remarks that “[l]ike a Magic 8-Ball, the Court keeps coming up: ‘Ask again later.’”

In Lozman v. City of Riviera Beach, the justices ruled 8-1 that the existence of probable cause for arrest does not bar a First Amendment retaliatory-arrest claim in this case. At the Associated Press, Jessica Gresko reports that “Lozman, who also won a case against the city at the Supreme Court in 2013, was arrested while talking about corruption in the county during a public comment portion of [a city council] meeting.” At Education Week’s School Law Blog, Mark Walsh reports that “[t]he court revived Lozman’s suit, but said that to prevail, he must prove the existence and enforcement of an official policy motivated by retaliation.” Additional coverage comes from Adam Liptak for The New York Times, Richard Wolf at USA Today and Robert Barnes for The Washington Post. The First Amendment Blog discusses the decision. At Crime and Consequences, Kent Scheidegger observes that the court “claimed to be establishing a ‘narrow’ rule on a civil suit for retaliatory arrest even when the arrest is supported [by] probable cause,” but warns that “[w]e have seen ‘narrow’ rules grow like cancer before.” At PrawfsBlawg, Howard Wasserman suggests that “the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.”

The court also held 5-3 in Chavez-Meza v. United States that a decision not to grant a proportional sentence reduction does not require a detailed written explanation. For The Wall Street Journal, Jess Bravin reports that “[t]he majority opinion, by Justice Breyer, said that some cases may be sufficiently complex to require elaboration, but not this one.” For The Washington Post, Ann Marimow reports that “The low-profile case attracted outsized attention because of [Deputy Attorney General Rod] Rosenstein’s appearance at the court.”

In Rosales-Mireles v. United States, the justices decided 7-2 that a sentencing-guideline miscalculation found to be plain error ordinarily calls for the court of appeals to vacate a defendant’s sentence. At Crime and Consequences, Kent Scheidegger comments on Rosales-Mireles and Chavez-Meza. Additional commentary on the two cases comes from Leah Litman at PrawfsBlawg (cross-posted at Take Care). Mark Walsh has a first-hand account of yesterday’s opinion announcements for this blog.

The justices also added five new cases for their docket for next term, and they took no action on a cert petition from a florist in Washington state who declined on religious grounds to provide custom floral arrangements for a same-sex wedding. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. At Bloomberg, Greg Stohr reports that the justices “agreed to consider narrowing the nation’s securities-fraud laws, accepting an appeal from an investment banker found by the Securities and Exchange Commission to have duped investors about a startup company’s financial condition.” For The Wall Street Journal, Brent Kendall reports that one of the grants is an antitrust case that “centers on allegations that consumers pay artificially high prices for iPhone apps because Apple maintains an exclusive marketplace for their sale and charges a 30% commission to app developers.” Additional coverage of the grant in Apple v. Pepper comes from Greg Stohr at Bloomberg.

At Reuters, Andrew Chung reports that “[t]he Trump administration, escalating its fight with so-called sanctuary cities, asked the U.S. Supreme Court on Monday to narrow a lower court’s nationwide order preventing the federal government from denying public safety grants to municipalities that limit cooperation on immigration enforcement.” At Law.com, Marcia Coyle reports that “[t]he Justice Department is asking the Supreme Court to stay the injunction to the extent it applies beyond the city of Chicago.” Additional coverage comes from Ariane de Vogue at CNN.

Briefly:

• For The New York Times, Adam Liptak and Alicia Parlapiano highlight “a far-reaching list of cases [this term] that renew [the Supreme Court’s central role in American life.”
• At The Daily Signal, Jim Campbell recounts a day spent with Jack Phillips, the baker who refused on religious grounds to make a custom cake for a same-sex wedding and who prevailed last month in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
• NFIB looks at Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a challenge to the federal government’s critical-habitat designation for the dusky gopher frog that will be heard next term.
• Michigan Radio interviews law professor Matthew Fletcher about the implications of the court’s 4-4 decision last week in tribal-fishing-rights case Washington v. United States.

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