Wednesday round-up

This morning the justices wrap up the February session with an oral argument in one of the marquee cases of the term, June Medical Services v. Russo, which involves a challenge to a Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital. Amy Howe previewed the case for this blog, in a post that first appeared at Howe on the Court. Eric Cummings and Andrew Kingsbury have a preview at Cornell Law School’s Legal Information Institute. At Subscript Law, Mariam Morshedi offers a graphic explainer for the case.

At NPR, Nina Totenberg reports that “[i]t’s the first major abortion case to come before the court since the 2018 retirement of Justice Anthony Kennedy, making it the first time the majority of justices hearing an abortion case have anti-abortion-rights judicial records.” Robert Barnes reports for The Washington Post (subscription required) that “[i]t’s hard to overstate what a decision about this law … will reveal about this Supreme Court and its jurisprudence on what remains one of the nation’s most politically divisive topics.” At CNN, Caroline Kelly reports that although “[t]he case … does not directly challenge Roe vs. Wade — the landmark Supreme Court decision legalizing abortion,” “all sides recognize the stakes.” Additional coverage comes from Steven Mazie at The Economist’s Espresso blog.

In an op-ed for The New York Times, Mary Ziegler writes that “[a]nti-abortion activists … [have] once again asked the Supreme Court to decide that abortion hurts women,” “believe[ing] that arguing harm to women — not fetal rights — is the key to convincing both the court and the nation to let go of Roe v. Wade.” At Dorf on Law, Michael Dorf explains “why the stakes of June Medical include not only abortion rights but the integrity of the Supreme Court’s own role in the federal judiciary.” At Slate, Julie Kay and Kathryn Kolbert argue that “this case asks the justices to make far too many procedural contortions now in the hasty pursuit of [President Donald] Trump’s anti-abortion promises.” The editorial board of The New York Times worries that if the court rules that abortion providers don’t have the right to sue on behalf of their patients, “[i]t’d be a sly way of rolling back women’s rights by limiting their access to the legal system.” The editorial board of The Wall Street Journal (subscription required), on the other hand, maintains that “[d]ismissing the challenge to the Louisiana law would send a clear message to lower courts and liberals who are trying to extend third-party standing to other controversies.”

The court issued one opinion yesterday, ruling 5-4 in Kansas v. Garcia that federal immigration law does not preempt a state prosecution for identity theft for using someone else’s Social Security number to obtain employment. For The Wall Street Journal (subscription required), Brent Kendall reports that “[t]he central question in the case … was whether such state prosecutions were barred by a provision of federal immigration law that says any information submitted with federal work-authorization forms can’t be used for state law-enforcement purposes”; “[i]n dissent, Justice Stephen Breyer, writing for the court’s liberal wing, said U.S. immigration law gave federal authorities the sole responsibility to police fraud committed to obtain eligibility to work.”

Amy Howe analyzes yesterday’s argument in Seila Law v. Consumer Financial Protection Bureau, a high-profile constitutional challenge to the structure of the CFPB, which is led by a single director who can only be removed by the president for cause, for this blog; her post first appeared at Howe on the Court. Mark Walsh has a first-hand view of the argument for this blog. At NPR, Nina Totenberg reports that both the law firm bringing the case and the Trump administration “are asking the Supreme Court, if necessary, to strike down a long line of decisions going back almost a century, that uphold the structure of all independent regulatory agencies.” Ariane de Vogue reports at CNN that “[a]fter arguments, it was unclear how the court would ultimately rule in the case that could also impact the fate of other agencies.” For The Wall Street Journal (subscription required), Jess Bravin and Yuka Hayashi report that the court “indicated … that it may curtail the independence of an eight-year-old agency created to protect consumers from abusive financial practices, but showed little inclination to eliminate the Consumer Financial Protection Bureau outright, as a California law firm had asked.” At Greenwire (subscription or registration required), Pamela King reports that “[t]he outcome … could shake up independent agencies like the Federal Energy Regulatory Commission.” Additional coverage comes from Bill Mears at Fox News.

In an op-ed for The New York Times, Jane Manners and Lev Menand urge the court to “remember our country’s long tradition of independent administration and reject arguments that would water it down.” At PrawfsBlawg, Christine Chabot points out that The Fed[eral Reserve’s] current and historical structures do not support the distinction drawn by Justice Kavanaugh,” “who suggested [during oral argument] that the single-director structure affords a newly elected President less influence over the Bureau than the President possesses over other multi-member agencies” like the Fed. Additional commentary comes from Ashley Baker at the Committee for Justice blog.

At Liberty Nation, Scott Cosenza points out that in a statement accompanying the court’s decision not to review a case challenging the government’s ban on bump stocks, Justice Neil Gorsuch issued “another broadside against courts giving deference to executive agencies, all the while laying the foundation for a future reversal of the bump-stock ban.” At Of Interest, Kristin Hickman remarks on Gorsuch’s assertion that “the government had waived Chevron deference,” explaining that “whether the government actually can waive Chevron deference remains an open question.” At the Cato Institute’s Cato at Liberty blog, William Yeatman observes that “it doesn’t appear as if the Court wants to take on Chevron directly; rather, the Court seems to be open to narrowing the doctrine,” and that “[t]o this end, Justice Gorsuch indicates some potential limits.”

Ephrat Livni writes at Quartz that on Gorsuch’s “best days” on the bench at oral argument, “he seems to be aiming for title of funniest tough guy on the high court.” At The National Law Journal, Marcia Coyle reports that “Gorsuch appears to believe lawyers are not answering his questions directly or quickly enough[; o]ne tell-tale sign for advocates is the justice’s regular comment at oral argument: ‘I’d be grateful’ for an answer.”

Briefly:

• At The American Prospect, H. Michael Semler weighs in on Liu v. Securities and Exchange Commission, which was argued yesterday, predicting that, “[g]iven the Court’s decade-long campaign to blunt the SEC’s enforcement tools, it seems unlikely that disgorgement will survive in its present form after Supreme Court scrutiny.”
• At The Daily Signal, Elizabeth Slattery and Naila Meese highlight “two cases to watch this week” – Seila Law and June Medical.
• At Empirical SCOTUS, Adam Feldman analyzes the first 13 decisions of the term, noting that because “Justice Ruth Bader Ginsburg is traditionally one of the most active justices at the beginning of each term,” “[i]t should come as no surprise … that she authored three” of them.

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