This Week’s Brief: May 20

Following the three decisions it issued last week, the Court issued another three decisions this week, in addition to granting a case for next term. On Monday, at 9:30am EDT, the Court released Orders from last Thursday’s private conference, including one grant of certiorari and two dissenting opinions relating to denials of certiorari. Then, at 10:00am EDT, the Court released its decision in three argued cases: one involving the U.S. Bankruptcy Code, one concerning the effect of Wyoming’s statehood on the 1868 Treaty between the federal government and the Crow Tribe, and one about drug-preemption cases concerning the interaction between pharmaceutical companies and the Food and Drug Administration. After a quiet Tuesday and Wednesday, the Court met for its weekly private conference on Thursday, before releasing on Friday stays on lower-court decisions in partisan gerrymandering cases. Here is your brief for the week of May 20.


Opinions: 3
Cert. Grants: 1
Opinions Relating to Orders: 2


The Court first on Monday morning released its list of Orders from last Thursday’s private conference. The Court granted certiorari for one case, Ritzen GroupInc. v. Jackson MasonryLLC, in which it will resolve a circuit split and decide whether an order denying a motion for relief from the automatic stay that stems from the filing of a bankruptcy petition is an appealable “final order” under the U.S. Bankruptcy Code, 28 U.S.C. § 158(a)(1).

In addition, two orders in pending cases evoked responses from two of the Justices. In Daniel v. United States, Justice Thomas dissented from the Court’s denial of certiorari. Daniel stemmed from a tort suit filed by the husband of a Navy Lieutenant who died during complications following childbirth. The district court dismissed the suit as barred under Feres v. United States, which held that military personnel who are negligently injured by a federal government employee cannot sue the United States under the Federal Tort Claims Act, and the Ninth Circuit Court of Appeals “regretfully” affirmed. On Monday, the Supreme Court denied certiorari, leaving the Ninth Circuit’s ruling in place. Daniel had asked, inter alia, whether Feres should be overruled. Justice Thomas felt the Court should reconsider Feres, writing that Feres causes improper “denial[s] of relief to military personnel and distortions of other areas of law to compensate,” and therefore dissented from the denial of certiorari. Justice Ginsburg also would have granted the petition, but she did not join Thomas’ dissenting opinion.

In Santos v. United States, Reinaldo Santos—a prisoner convicted of battery under Florida state law—asked the Court to interpret the language of the Florida state battery statutes in relation to the Armed Career Criminal Act (ACCA). The Solicitor General filed an amicus brief, in which he advised the Court that (1) the federal government no longer deems Santos’ battery conviction a violent felony under the ACCA’s elements clause, and (2) the Supreme Court should therefore grant the case, vacate the judgment, and remand the case for further proceedings in light of the S.G.’s brief. The Court did exactly that, in a move analogous to a similar order in a petition I discussed last week. But Justice Alito, joined by Justice Thomas, dissented from the Court’s order in Santos. Alito would instead “count the conviction as a ‘violent felony’ under the [ACCA’s] elements clause and would therefore deny the petition.”

Finally, the Court denied certiorari for Jones v. United States, a similar case to Daniel v. United States discussed above. Justice Thomas dissented from the denial of certiorari for the same reasons set forth in his dissent in Daniel.

1. The first of the Court’s three decisions this week came in Mission Product Holdings, LLC v. Tempnology LLC. This case concerns an interpretation of two sections of the U.S. Bankruptcy Code (11 U.S.C. §§ 365(a) and 365(g)) in the context of a trademark licensing agreement. Justice Kagan, writing for an 8:1 majority, held that a bankrupt licensor’s rejection of an executory contract does not strip the licensee’s rights to use the trademark as governed by the contract.

Tempnology, LLC, manufactured and marketed exercising clothes and accessories, using trademarks to distinguish its products from other athletic wear. In 2012, Tempnology drew up a contract with Mission Product Holdings, Inc. (“Mission”), that was set to expire in 2016. As relevant here, the contract permitted Mission to use Tempnology’s trademarks when it sold the products in the United States and around the world. However, in 2015, Tempnology filed for Chapter 11 bankruptcy. This kind of a contract—one that both parties are still carrying out when one party files for bankruptcy—is called an “executory contract.”

When a party in an executory contract files for bankruptcy, § 365(a) allows that party (the “debtor”) or the trustee of the party’s estate to “assume or reject any executory contract or unexpired lease of the debtor.” So, upon entering bankruptcy and reviewing its executory contract with Mission, Tempnology had a choice: Tempnology could continue to fulfill its contractual obligations while benefiting from Mission’s performance. Or, Tempnology could pull out of (“reject”) the contract, alleviating itself of any further contractual obligations. However, § 365(g) provides that “the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease.” So, if Tempnology would decide to reject the contract with Mission, Tempnology would be “breaching” the contract in the ordinary sense outside of bankruptcy proceedings, and Mission would be entitled to any and all rights not yet fulfilled under the contract and would have a (small) claim against Tempnology’s estate for damages.

Tempnology elected to reject its executory contract with Mission. This of course meant that Tempnology no longer was bound to fulfill its contractual obligations, whereas Mission could pursue a claim for damages arising from Tempnology’s breach of contract. But Tempnology was under the impression that another consequence arose from its rejection of the contract: Mission, when it marketed Tempnology’s athletic clothing, was no longer permitted to use Tempnology’s trademarks, because that right was spelled out in the (now-defunct) contract.

The Bankruptcy Court agreed with Tempnology, revoking Mission’s right to use Temonology’s trademarks. Mission appealed, and the Bankruptcy Appellate Panel reversed. Tempnology appealed, and the First Circuit Court of Appeals again reversed, reinstating the original ruling. Mission finally appealed to the Supreme Court, and on Monday, the Supreme Court (via Justice Kagan) reversed again, taking the Bankruptcy Appellate Panel’s holding and giving Mission the win.

Justice Kagan first dismissed Tempnology’s argument that the case was moot, relying on the simple fact that Mission “has presented a claim for money damages . . . arising from its inability to use [Tempnology’s] trademarks” from the time at which Temonology rejected the contract and the time at which the contract was supposed to expire. “If there is any chance of money changing hands,” Kagan reasoned, “Mission’s suit remains live.”

Kagan then turned to the effects a debtor’s rejection of an executory contract. Is such a rejection analogous to a real-world breach of contract outside bankruptcy, in which the counterparty is entitled to all the rights not yet fulfilled? (If so, then Mission has the ability to continue using Tempnology’s trademarks.) Or is it more like a contract recission, in which the contract is withdrawn and the yet-to-be-realized rights are terminated along with it? (If so, then Mission is not able to continue using Tempnology’s trademarks.)

Kagan, writing for an 8:1 majority, sided with the former, “rejection-as-breach” approach. First, she argued § 365(g) is clear on the issue: When a debtor rejects an executory contract, Kagan wrote, “[t]he debtor can stop performing its remaining obligations under the agreement.” However, the debtor “cannot rescind the license already conveyed. So the licensee can continue to do whatever the license authorizes.” Second, § 365 exemplifies a general rule in bankruptcy proceedings: “The [debtor’s] estate cannot possess anything more than the debtor itself did outside bankruptcy.” If the Court took the latter, “rejection-as-recission” approach, Tempnology could rescind the trademark rights it had already promised to Mission, which would artificially inflate the value of Tempnology’s estate. And third, Tempnology’s claim that § 365 et seq. reads differently for trademarks than it does for all other contractual rights “rests on a negative inference,” which “pays too little heed to [§ 365’s] main provisions governing rejection and too much to subsidiary ones.”

Justice Sotomayor filed a concurring opinion to call attention to “two potentially significant features of today’s holding.” First, Mission Prod. Holdings applies to a trademark licensee’s rights after a breach of an executory contract under bankruptcy law; it does not say anything as to a trademark licensee’s rights under nonbankruptcy law. And second, the Court’s decision affirms that a trademark licensee’s post-rejection rights are more expansive than the rights of licensees in other kinds of intellectual property (see, e.g., 365(n) et seq., referring to patents, copyrights, etc.).

Lastly, Justice Gorsuch was the lone dissenter, questioning whether the Court in fact has jurisdiction to rule. Recall that the original expiration of the license agreement between Tempnology and Mission was scheduled for 2016. After the bankruptcy court ruled (and certainly by now), “the license agreement expired by its own terms.” “So,” Gorsuch argued, “nothing we might say here could restore Mission’s ability to use Tempnology’s trademarks.” Since a court’s jurisdiction “extends only to deciding ‘Cases’ and ‘Controversies’ where the outcome matters to real parties in the real world,” Gorsuch would DIG—dismiss as improvidently granted—the case (quoting Art. III § 2 of the Constitution).

2. The second decision of the week came in Herrera v. WyomingHerrera concerned two things: one, whether Wyoming’s statehood in 1890 abrogated the Crow Indians’ hunting rights embodied in an 1868 treaty between the Crow Nation and the federal government; and two, whether the land encompassed by the Bighorn National Forest was categorically “occupied” when President Grover Cleveland created the park in 1897. Justice Sotomayor, writing for a 5:4 majority, answered “no” and “no.”

The Crow Nation long ago settled in and around the Bighorn Mountains in northern Wyoming and southern Montana. In 1868, the Crow Nation entered into the Treaty Between the United States of America and the Crow Tribe of Indians (the Treaty). As relevant here, the Treaty provided that the Crow Nation cede to the federal government much of its territory in what is now Wyoming and Montana. In exchange, the United States assured the Crow, inter alia, that they “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists . . . on the borders of the hunting districts.” Next, in 1890, Congress admitted Wyoming as a state “into the Union on an equal footing with the original States in all respects.” Finally, seven years later, President Grover Cleveland set aside an expansive area of land in Wyoming (which was formerly part of the Crow territory) as a place “reserved from entry or settlement.” This land eventually became the Bighorn National Forest.

Jump forward to 2014. Clayvin Herrera, a member of the Crow Nation and who also resides on the Crow Reservation in Montana, shot and killed an elk just outside the reservation’s borders and inside the boundary of the Bighorn National Forest. Wyoming charged him with off-season hunting and doing so without a state hunting license. Herrera, in his defense, argued the 1868 Treaty gave him the right to hunt when and where he did. The Wyoming appellate court disagreed. First, it relied on Crow Tribe of Indians v. Repsis—a 1995 decision from the Tenth Circuit Court of Appeals—which held that the Crow’s hunting rights in the Treaty were voided in 1890 when Wyoming became a state. And second, it asserted that the land within the Bighorn National Forest became categorically “occupied” when the park was created. As a result, since the Crow’s hunting rights in the Treaty applied on “unoccupied” lands (emphasis added), the Crow no longer had the right to hunt freely in the Bighorn National Forest even if the Treaty survived Wyoming’s admission into the union. After the Wyoming Supreme Court denied review, Herrera appealed to the U.S. Supreme Court.

Justice Sotomayor first considered whether Wyoming’s statehood enjoined the Treaty’s hunting rights. In Minnesota v. Mille Lacs Band of Chippewa Indians (526 U.S. 172 (1999)), the Supreme Court grappled with the issue of whether (and, if so, when) statehood can terminate treaty rights found in an agreement between the federal government and an Indian nation. While Mille Lacs concluded a Congressional act of statehood may terminate treaty rights, it can only do so when Congress “expressly abrogate[s] an Indian treaty right” in the act of statehood (emphasis added), or when the treaty itself declares that statehood terminates the treaty rights. Applying Mille Lacs to Herrera, Sotomayor notes that Congress’ Wyoming Statehood Act was silent as to the Crow’s hunting rights stemming from the Treaty. In fact, the act made “no mention of Indian treaty rights” whatsoever. “Nor is there any evidence in the [T]reaty itself,” Sotomayor writes, “that Congress intended the hunting right to expire at statehood.” The Treaty identifies four circumstances that would terminate the hunting rights: (1) “unoccupied” land becomes occupied; (2) the federal government cedes the land to someone else; (3) no more game can be found on the land (hence there can be no more hunting); and (4) peace between the Crow Nation and the United States is not sustained. There is no “(5) Wyoming becomes a state,” or anything of the sort.

Consequently, Sotomayor finds that when Congress admitted Wyoming as a state, it did not expressly enjoin the Treaty’s hunting rights; and that the Treaty likewise did not expressly provide that the Crow’s hunting rights were to expire upon Wyoming’s statehood. Thus, Wyoming’s first argument—that Herrera could not hunt when and where he did because his hunting rights expired in 1890—fails under Mille Lacs.

Sotomayor then turns to Wyoming’s second contention: that while the area of land on which Herrera hunted was at one time “unoccupied”, it became “occupied” in 1897 when it was set aside to become the Bighorn National Forest. (Recall that the Treaty granted members of the Crow Nation the right to hunt on the “unoccupied” lands of the United States, and that right ceased if the land became “occupied”.)

First, “unoccupied” (and its inverse, “occupied”) must be defined. While the Treaty does not define “unoccupied” explicitly, Sotomayor argues “several clues” in the Treaty’s text explain its meaning. These include “contrasting . . . unoccupied hunting districts with areas of white settlement”; “us[ing] the word ‘occupation’ to refer to the [Crow] Tribe’s residence inside the reservation boundaries” (emphasis added); and “juxtapos[ing] occupation and settlement by stating that the Tribe was to make ‘no permanent settlement’ other than on the new reservation, but could hunt on the ‘unoccupied lands’ of the United States.” Modern definitions, Sotomayor finds, “further support a link between occupation and settlement,” as does historical evidence surrounding the Treaty’s negotiations.

Consequently, Sotomayor would read “unoccupied” lands as lands free from entry or settlement, and “occupied” lands as areas on which people have entered or settled. Since President Cleveland’s proclamation in 1897—which set aside the region to become the Bighorn National Forest—”reserved” the land “from entry or settlement,” that land (on which Herrera hunted) was not categorically occupied under the meaning of the Treaty, contra Wyoming’s argument.

In sum, the Court sides with Herrera for the time being, concluding that (1) the Crow’s hunting rights provided for in the Treaty did not disappear when Wyoming became a state, and (2) the creation of the Bighorn National Forest in 1897 did not render the lands on which Herrera later hunted “occupied” under the meaning of the Treaty. Thus, Herrera is remanded back the Wyoming state courts, with the knowledge that the state no longer can use those two arguments.

Justices Ginsburg, Breyer, Kagan, and Gorsuch joined Sotomayor in her majority opinion.

Justice Alito authored a dissent, in which Chief Justice Roberts and Justices Thomas and Kavanaugh joined. Principally, Alito argues that the Court need not get to the point of interpreting the 1868 Treaty. Instead, the Court should begin with whether Herrera is barred from bringing this suit by collateral estoppel (or, in modern terms, “issue preclusion”)—a legal principle holding that a party may not re-litigate an issue that has already been decided on firm ground.

Spelled out in Arizona v. California, 460 U.S. 605 (1963), at 619, collateral estoppel mandates that “an issue once determined by a competent court is conclusive.” (Or, as the Court pithily put it in Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104, 107 (1991): “[A] losing litigant deserves no rematch after a defeat fairly suffered.”) The way Alito sees Herrera, the question of whether the Crow may still assert their 1868 Treaty hunting rights has already been decided “competent[ly]” and “conclusive[ly]”—namely, Crow Tribe of Indians v. Repsis, 73 F. 3d 982 (Tenth Cir. 1994), the case on which the Wyoming appellate court relied in ruling against Herrera. Repsis concerned whether members of the Crow Nation still have the right to hunt game on the lands of the Bighorn National Forest. The Tenth Circuit definitively answered “no,” holding that “the [Crow Nation] and its members are subject to the game laws of Wyoming,” not the game laws of the 1868 Treaty, since “[t]he [Crow Nation’s] right to hunt reserved in the Treaty . . . was repealed by the act admitting Wyoming into the Union.”

If this were the end of the story, it is plausible Justice Alito would be correct. But, according to the Court’s majority, it is not. There is an exception to collateral estoppel that arises when there is a “change in the applicable legal context,” per the majority. As relevant here, Repsis was decided in 1994. Five years later, the Supreme Court decided Mille Lacs, which undercut the primary reasoning in Ward v. Race Horse, 163 U.S. 504 (1896), a longstanding case on which the Tenth Circuit relied in Repsis. Mille Lacs, the majority claims, meets that change-in-legal-context standard and accordingly does away with Repsis‘ boast of collateral estoppel. But Alito disagrees. While Mille Lacs “repudiated” some of the reasoning in Race Horse, it “did not effectively overrule the decision.” If a later case questions a prior case’s reasoning but refrains from overturning the prior case entirely, “[i]s that enough to eliminate” the weight of collateral estoppel inherent in the prior case? In Alito’s mind, that answer is “no,” and he therefore would conclude Herrera is “precluded by the judgment in Repsis from relitigating the continuing validity of the hunting right conferred by the 1868 Treaty.”

3. The third and final decision of the week came in a 9:0 opinion from Justice Breyer in Merck Sharp & Dohme Corp. v. AlbrechtAlbrecht clarified the “clear evidence” standard in cases concerning whether federal law (or the directives of a federal agency) preempts a state-law failure-to-warn claim. It also settled the confusion over whether a judge or a jury is tasked with deciding the preemption question.

The Food and Drug Administration (FDA) regulates the safety information appearing on the labels of all prescription drugs sold in the United States. Every label’s safety information must include, inter alia, the possibility of adverse reactions to the medication, based on study data looking at causal relationships between the drug and the adverse reaction. Drug manufacturers are permitted to change a drug’s label during the course of its marketing and sale, but in the vast majority of cases may only do so with FDA approval.  Such alterations often happen when new studies suggest a correlation between the drug and a side effect that was previously unknown. In those few other (rare) situations (i.e., when there is “newly acquired information” about the “evidence of a causal association” between a drug and a new side effect), a pharmaceutical company may add or strengthen a drug label’s warning without prior FDA permission.

Such a label-change took place with Merck (a leading worldwide pharmaceutical company) and its osteoporosis drug, Fosamax. In 1995, Merck began marketing Fosamax, whose FDA-approved label contained no language about atypical femoral fractures in its discussion of adverse reactions. (At the time, no such link had been identified.) By 2008, however, Merck had begun noticing a correlation between long-term Fosamax use and atypical femoral fractures. Accordingly, Merck later that year petitioned the FDA to change the label, but, based on scant evidence in then-published studies and medical journals, the FDA did not feel the change needed to be made. The FDA reversed course in 2011, ordering Merck to include the “atypical femoral fracture” side effect on Fosamax’s label due to its own review of the later-published case studies and medical journal articles.

But what happens when a class, whose members were exposed to the side effect before a drug’s label change, files a state-law tort suit against the drug manufacturer for failing to warn consumers of the drug’s dangers in a timely manner (as happened with Merck here in Albrecht)? Notice the dynamic here: a tort suit under state law against a corporation (Merck) whose actions are, to some degree, guided by a federal agency (the FDA). Normally, in such cases where federal law conflicts with state law, federal law preempts state law and the claim is dismissed if brought on state law grounds. The district court in Albrecht agreed.

But the Third Circuit Court of Appeals reversed, citing the Supreme Court’s 2009 decision in Wyeth v. Levine. The Wyeth Court held that a state-law failure-to-warn-claim is preempted when there is “clear evidence that the FDA would not have approved a change to the . . . label.” Using Wyeth, the Third Circuit asserted the burden was on Merck to prove the FDA would not have approved its change to the Fosamax label prior to 2008, and concluded Merck did not meet that burden. Merck appealed, asking the Supreme Court to decide whether a determination that the FDA would not have approved a label change must be made by a judge or a jury, as well as to clarify the meaning of “clear evidence.”

First, Justice Breyer shed more light on the “clear evidence” standard in Wyeth. Under that decision, a drug manufacturer must have shown that “it fully informed the FDA of the justifications for the warning required by state law,” and the FDA “in turn” must have shown that it “informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning.” “Clear evidence” need not, in Breyer’s mind, be discussed in the context of standards of evidence (like “preponderance of the evidence” or “clear and convincing evidence”). Rather, a judge “must simply ask himself or herself whether the relevant federal and state laws irreconcilably conflict” (internal citation and quotation marks omitted). If so, the Supremacy Clause of the Tenth Amendment applies, and federal law preempts state law. In concluding as such, Breyer answers the second question: a “judge” must determine whether the FDA would have approved a label change—not a jury. He later reinforces this conclusion by pointing to a number of qualifications within the context of drug-preemption cases that judges have and juries do not have.

For these reasons, the Court remands Albrecht back to the Third Circuit.

Justice Thomas filed the first concurring opinion, elucidating and applying his interpretation of the Supremacy Clause to drug-preemption defenses. Finally, Justice Alito (joined by Chief Justice Roberts and Justice Kavanaugh) filed an opinion concurring in the judgment. Alito agrees with the majority opinion’s conclusion that a judge (not a jury) must decide the question of whether there is “clear evidence” the FDA would or would not have approved a label change. Alito further points out some gaps—or so he sees—in the majority’s discussion of the facts in Albrecht, with the hope that his discourse will allow for an easier case on remand back in the Third Circuit.


The Court held no proceedings on either Tuesday or Wednesday.


The Court met for its weekly private conference, at which it routinely reviews the petitions on its docket and decides whether to grant certiorari for any of them. We can expect news from this conference in the Court’s Orders list on Tuesday, May 28. Some high profile petitions awaiting action on Court’s docket include:

  • A challenge to an Indiana state abortion law, which (1) requires healthcare facilities to dispose of fetal remains in the same manner as human remains (i.e., burial or cremation), (2) prohibits abortions when the abortion is sought due to the race, sex, or disability of the fetus, and (3) requires abortion doctors to inform patients of that prohibition. The case is Box v. Planned Parenthood of Indiana & Kentucky, Inc.
  • A trio of cases concerning the Department of Homeland Security (DHS)’s push to whittle away at the Deferred Action for Childhood Arrivals (DACA) policy. The cases ask whether DHS’ decision to bring DACA to an end is judicially reviewable, and if so, whether it is lawful. The cases are DHS v. Regents of the University of CaliforniaTrump v. NAACP, and Nielsen v. Vidal.
  • A First Amendment religious objection to designing and creating a custom wedding cake for a same-sex wedding, a case akin to last term’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. The case is Klein v. Oregon Bureau of Labor & Industries.
  • A Fourth Amendment search and seizure case asking (1) whether a dog-sniff in the common area of an apartment constitutes a search, and (2) if not, whether the good-faith exception to the exclusionary rule (which holds that evidence obtained illegally is inadmissible) applies. The case is Illinois v. Bonilla.

The Court issued four Miscellaneous Orders, all staying district court decisions in cases concerning partisan gerrymandering. Three cases on the Court’s docket this term—Rucho v. Common Cause in North Carolina, Virginia House of Delegates v. Bethune-Hill in Virginia, and Lamone v. Benisek in Maryland—concern partisan gerrymandering, asking not only whether the practice is constitutional but, in Rucho and Bethune-Hill, also whether petitioners even have standing to bring the case to court.

In the past few weeks, federal district courts issued decisions in two partisan gerrymandering cases—one in Ohio and one in Michigan—striking down the states’ drawing of voting districts as unconstitutional and ordering the states to redraw the districts. Republican state officials in both cases appealed to the Supreme Court on May 10, asking the Justices to out the district courts’ decisions on hold while the cases are appealed. On Friday, the Justices granted stays with no noted dissents.

Next Week’s Preview

The Court is on recess Monday, May 27, due to Memorial Day. On Tuesday, the Court at 9:30am EDT will release orders from this past Thursday’s private conference. There is a possibility of opinions at 10:00am EDT. The Court will meet for its next weekly private conference next Thursday, May 30.

Further Reading
  • For Mission Product Holdings, LLC v. Tempnology, LLC: Ronald Mann reviews the Court’s decision for SCOTUS Blog; Katy Stech Ferek for the Wall Street Journal; and Daniel Gill for Bloomberg Law.
  • For Herrera v. Wyoming: Gregory Ablavsky reviews the Court’s decision for SCOTUS Blog; Lawrence Hurley for Reuters; Jess Bravin for the Wall Street Journal; Steven Mazie for The Economist‘s “Democracy in America” blog; and Jacqueline Thomsen for TheHill.
  • For Merck Sharp & Dohme Corp. v. Albrecht: Elizabeth McCuskey reviews the Court’s decision for SCOTUS Blog; Jess Bravin for the Wall Street Journal; Andrew Chung for Reuters; and Jacqueline Thomsen for TheHill;
  • For more on Ritzen GroupInc. v. Jackson Masonry, LLC (the one case this week for which the Court granted certiorari), Amy Howe has more at SCOTUS Blog.
  • For more on the Court’s partisan gerrymandering case stays: Amy Howe discusses the stays for SCOTUS Blog; Robert Barnes for the Washington Post; Adam Liptak for the New York Times; and Andrew Chung and Lawrence Hurley for Reuters;
  • For Reuters, Lawrence Hurley reports on the Court’s latest inaction regarding the duo of cases challenging Indiana abortion laws.
  • For SCOTUS Blog, Anita Krishnakumar gets into the weeds with last week’s decision in Franchise Tax Bd. of California v. Hyatt (which I discussed here) and whether the Court has signaled a propensity for overruling cases.
  • And in an op-ed for the Wall Street Journal, Myron Magnet argues that the “sharp disagreement” present in Justice Thomas’ majority opinion and Justice Breyer’s dissent last week in Hyatt “reflect[] different worldviews that go far beyond abortion”—a subject at which Breyer hinted in his dissent by writing that Hyatt will cause the American public to “wonder which cases the Court will overrule next.”

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