Tuesday round-up

EDITH ROBERTS JUN 23, 2020 6:56 AM

Yesterday the court issued one decision, in Liu v. Securities and Exchange Commission, holding 8-1 that the SEC can seek disgorgement of profits as a remedy in court for violating the securities fraud laws if the amount does not exceed the wrongdoer’s net profit and is awarded for the victims. Ronald Mann analyzes the opinion for this blog. Adam Liptak reports for The New York Times that the ruling “preserv[es] a tool that has allowed [the SEC] to recover billions of dollars[, b]ut the justices said courts should place significant limits on what kinds of disgorgements are permissible.” For The Wall Street Journal (subscription required), Dave Michaels and Brent Kendall report that “Monday’s ruling also could provide a boost to the Federal Trade Commission, which has faced legal challenges over its authority to seek the return of money unlawfully obtained through the violation of federal consumer-protection laws.”

The justices also issued orders from last week’s conference; they did not add any cases to their merits docket for next term. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Courthouse News Service (via How Appealing), Megan Miniero reports that “Justice Clarence Thomas called out his colleagues Monday for turning down a case where threat convictions were overturned because they lacked an intent to intimidate.”

At Slate, Simon Lazarus suggests that last week’s majority opinion in Bostock v. Clayton County, Georgia, in which the court held that federal employment discrimination law protects gay and transgender employees, “should provoke introspection among progressives in the legal community who have long been skeptical of textualism, offering a chance for them to fix chronic blind spots and strategic gaffes that have damaged the progressive judicial project.” Edward Mannino offers some takeaways from the decision here. At Keen News Service, Lisa Keen notes that “statistically speaking, on LGBT-related cases only, the votes by [Chief Justice John] Roberts and [Justice Neil] Gorsuch put them into a middle ground.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris Funeral Homes v. EEOC, which was decided along with Bostock.]

Briefly:

• At Howe on the Court, Amy Howe provides “a list of the [14] cases that have not yet been decided [this term], along with (when available) predictions about who may be writing the opinions.”
• Alex Swoyer reports for The Washington Times (via How Appealing) that with so many cases still pending, “it is looking more and more likely the term will be extended into July — a rare occurrence for the justices.”
• Adam Feldman offers an interim set of statistics from October Term 2019 for this blog, noting that “[a]Athough [Chief Justice John] Roberts has authored the fewest opinions this term, with three – all majority opinions at that – his opinions and votes have already made quite an impact.”
• At Bloomberg Law, Ellen Gilmer reports that “[t]he U.S. Supreme Court’s latest term, wrapping up this month, went surprisingly well for environmental lawyers who feared cases on the docket could prove disastrous to their cause.”
• In an op-ed at the Chicago Daily Law Bulletin, Daniel Cotter weighs in on last week’s Supreme Court decisions.
• At Jurist, Ryan Suto argues that Justice Sonia Sotomayor’s partial dissent in Department of Homeland Security v. Regents of the University of California, in which the court held that the government’s decision to terminate the DACA program violated the procedural requirements prescribed for administrative agencies, along with her dissents in other cases involving “discrimination at the hands of government actors,” “exposes the Roberts Court as unwilling to understand or accept how minority communities are actually discriminated against today.”
• At the Brennan Center for Justice, Ciara Torres-Spelliscy writes that if the Supreme Court rules for the “faithless elector” in Colorado Department of State v. Baca, which asks whether the Constitution forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral college ballots, “and with the same reasoning as the 10th Circuit, voters should hold on to their hats during the 2020 election.”

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