Wednesday round-up

Subscript Law has a graphic explainer for Monday’s opinion in Gamble v. United States, in which the court reaffirmed precedent holding that prosecution of the same conduct by separate sovereigns, such as a state and the federal government, does not violate the Constitution’s double jeopardy clause. At Liberty Nation, Scott Cosenza calls the case “a big loss to limited government and the rule of law.” At his eponymous blog, Michael Dorf agrees with the outcome but raises concerns about two points made in the majority opinion. At Stanford Law School’s Legal Aggregate blog, Bernadette Meyler looks at the “outsized role” of the common law in the opinions.

For The Wall Street Journal, Brent Kendall and Jess Bravin report that “[t]he Supreme Court on Monday upheld a Virginia law that prohibits uranium mining within the commonwealth’s borders, in a splintered ruling that affirmed the powers of the states to regulate mining on private lands within their territories,” in Virginia Uranium, Inc. v. Warren. At Public Citizen’s Consumer Law & Policy Blog, Brian Wolfman wonders whether the reasoning in Justice Neil Gorsuch’s opinion announcing the judgment “would free states to ban or restrict marketing of other federally regulated products and services, even though when those products or services are on the market, federal rules play a significant (and possibly preemptive) role.” The editorial board of The Wall Street Journal asserts that the decisions in Gamble and Virginia Uranium “reinforce state sovereignty and deflate the liberal conceit that the Court’s conservatives are puppets of President Trump and business.”

At The Economist’s Democracy in America blog, Steven Mazie writes that Monday’s decision in Virginia House of Delegates v. Bethune-Hill, which “sets the stage for a possible Democratic takeover of Virginia’s Senate and House of Delegates,” “shows that justices are capable of voting against the interest of the party of the president who nominated them—at least occasionally.” Subscript Law has a graphic explainer for the decision.

Bill Donahue reports at Law360 (subscription required) that in Manhattan Community Access Corp. v. Halleck, the court “ruled Monday that a New York City public access channel is not a so-called state actor that’s subject to the First Amendment’s protections of free speech.” At the National League of Cities’ CitiesSpeak blog, Lisa Soronen notes that “[w]hile the majority acknowledged that private entities may qualify as state actors in limited circumstances, including when the private entity performs a traditional, exclusive public function, the Court concluded that exception doesn’t apply in this case.” At his eponymous blog, Michael Dorf questions Justice Brett Kavanaugh’s statement for the court that “’the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty,’” expressing doubt that “society [is] more free in virtue of the fact that private actors like Facebook and Twitter don’t have to respect free speech.”

At Keen News Service, Lisa Keen notes that the court’s order on Monday in Klein v. Oregon Bureau of Labor and Industries directing the lower court to reconsider its ruling against a bakery owner who refused to make a case for a same-sex wedding “seem[s] to invite the state court to scour the record below in search of some expression of hostility to the baker’s religious beliefs that might justify letting her off the hook in this current violation of the state’s human rights law.” In an op-ed at Fox News, Kelly Shackleford argues that the process of enforcing anti-discrimination laws must “respect the important role religion has played – and continues to play – in the lives of millions of Americans, both in private and within the public square.”

At The Daily Caller, Kevin Daley reports that “[s]enior Trump administration officials involved with preparations for the 2020 Census denied the existence of a partisan conspiracy to add a citizenship question to the census form during closed-door testimony before the House Committee on Oversight and Reform”; a dispute over the legality of adding the question, Department of Commerce v. New York, is pending before the Supreme Court. In an op-ed for The Washington Post, Leah Litman and others push back against assertions by conservative commentators that “only a weak-willed, weak-kneed judge would ever deviate from right-wing orthodoxy to preserve the [Supreme C]ourt’s legitimacy,” arguing that “some issues really do strike at the court’s legitimacy,” and “[t]he challenge to the addition of a citizenship question on the 2020 Census is one of them.”

At NPR, Nina Totenberg recaps all Monday’s rulings and highlights the most notable cases left to be decided. At Howe on the Court, Amy Howe makes some educated guesses about which justices may be writing the remaining opinions.

Briefly:

• Caitlin O’Kane reports for CBS News that Justice Ruth Bader Ginsburg, the subject of a documentary film last year, “just took home an MTV Movie & TV Award for being a ‘real-life hero.’”
• At Wine Searcher, W. Blake Gray writes that “[w]ine lovers anxiously awaiting a US Supreme Court decision that could change liquor laws nationwide will have to wait another few days” for the ruling in Tennessee Wine & Spirits Retailers Association v. Thomas, a challenge to Tennessee’s durational residency requirements for liquor licensing.
• The first episode of Bleeped (podcast) tells the story of Fane Lozman, whose battles with the city of Riviera Beach, Florida, led him to two recent victories at the Supreme Court.
• For Capitol Media Services (via Pinal Central), Howard Fischer reports that on Monday, the Supreme Court “rebuffed the efforts of a man who married and then killed a Pinal County[, Arizona,] woman for her life insurance to escape the death penalty,” denying cert in the case of Michael Apelt, who had argued “that his counsel at his trial had been deficient and that required a new sentencing.”

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