SCOTUS Watch: Brnovich (Voting Rights Act) Will Be Announced On Thursday

First, some housekeeping:

On Wednesday, the Presidential Commission on the Supreme Court of the United States will hold an all-day, virtual hearing. Public Meetings:

The Presidential Commission on the Supreme Court of the United States will hold its next meeting on June 30, 2021 from 9:00 a.m. – 5:00 p.m. EST (agenda).

This meeting will be conducted virtually. For information on how to register for the meeting, please refer to the notice in the Federal Register.

The purpose of this meeting is to hear testimony from subject matter experts. This testimony will be organized into four panels.

• Panel #1: The Contemporary Debate over Supreme Court Reform: Origins and Perspectives
  • • Nikolas Bowie (written testimony)
    • Noah Feldman (written testimony)
    • Laura Kalman (written testimony)
    • Michael McConnell (written testimony)
    • Kim Scheppele (written testimony)
• Panel #2: The Court’s Role in Our Constitutional System
  • • Rosalind Dixon (written testimony)
    • Charles Fried
    • Samuel Moyn (written testimony)
    • Maya Sen (written testimony)
    • Ilan Wurman (written testimony)
• Panel #3: Case Selection and Review at the Supreme Court
  • • Samuel Bray (written testimony)
    • Michael Dreeben (written testimony)
    • Christina Swarns (written testimony)
    • Stephen Vladeck (written testimony)
• Panel #4: Access to Justice and Transparency in the Operation of the Supreme Court
  • • Deepak Gupta (written testimony)
    • Amy Howe (written testimony)
    • Allison Orr Larsen (written testimony)
    • Judith Resnik (written testimony)
    • Russell Wheeler

The Commission also intends to hold panels at its July meeting, tentatively planned for July 20. Additional details will follow.

May 19, 2021 Meeting:

• • • Federal Register Notice
    • Meeting Agenda
    • Proposed Commission By-laws

SCOTUS Opinions Today:

The Court surprised just about everyone by not scheduling opinions on Monday, but it did issue some orders.

The court granted two new cases and declined to consider an invalidated school policy that students use the bathroom of their sex assigned at birth. Supreme Court will not hear transgender bathroom rights dispute, a win for Va. student who sued his school for discrimination, see also Supreme Court revives lawsuit alleging excessive force in death of man cuffed and shackled.

The Court is issuing opinions on Tuesday and Thursday of this week. The Court issued three opinions today, and left the case we are all waiting on, Brnovich, for Thursday, the last day of the 2020 Term. Traditionally, this is also the day that most Justices have announced their retirement from the Court, but don’t hold your breath waiting on Justice Stephen Breyer to retire.

The first opinion today was Minerva Surgical, Inc. v. Hologic, Inc., a 5-4 decision. The question before the court was whether to discard a patent-law doctrine known as “assignor estoppel,” which limits an inventor’s ability to assign a patent to another person and then later contend in litigation that it is invalid. The Court rejects Minerva’s contention that assignor estoppel should be abandoned.

Justice Kagan writing for the majority, joined by Justices Roberts, Breyer, Sotomayor and Kavanaugh, held that “Assignor estoppel is well grounded in centuries-old fairness principles, and the Federal Circuit was right to uphold it. But assignor estoppel applies only when the assignor’s claim of invalidity contra- dicts explicit or implicit representations he made in assigning the patent.” The Court sent the case back to the Federal Circuit for more proceedings “consistent with this opinion.”

Justice Barrett filed a dissent, joined by Justices Thomas and Gorsuch. Justce Alito filed a separate dissent.

The second opinion today was Johnson v. Guzman Chavez, a 6-3 per curiam decision. Justice Alito wrote the opinion of the Court (except as to footnote 4), and was joined by Justices Roberts, Kavanaugh and Barrett. Justice Thomas filed a concurring opinion (except as to footnote 4), joine by Justice Gorsuch. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan.

Justice Alito explains “Federal immigration law contains various provisions au- thorizing the Government to detain aliens during the re- moval process. This case concerns two of them: 8 U. S. C. §1226 and 8 U. S. C. §1231. We are asked to decide which of those provisions applies to aliens who were removed from the United States but later reentered without authoriza- tion, were subject to reinstated orders of removal, and then sought withholding of removal based on fear of persecution in the particular countries designated by their removal or- ders. If the answer is §1226, which applies “pending a de- cision on whether the alien is to be removed from the United States,” then the alien may receive a bond hearing before an immigration judge. If the answer is §1231, which ap- plies after the alien is “ordered removed,” then the alien is not entitled to a bond hearing. We conclude that §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue withholding of removal.

The third opinion today was PennEast Pipeline Co., LLC v. New Jersey, an unpredictable split 5-4 decision. Chief Justice Roberts wrote the majority opinion, joined by Justices Breyer, Alito Sotomayor and Kavanaugh. Justice Gorsuch filed a dissent, joined by Justice Thomas. Justce Barrett filed a dissent, joined by Justices Thomas, Kagan and Gorsuch.

This case is about PennEast’s efforts to build a 116-mile natural gas pipeline through New Jersey and Pennsylvania, and PennEast’s efforts to use eminent domain to obtain the land (some of which belonged to New Jersey) for that effort. The majority held that “Section 717f(h) [of the Natural Gas Act of 1938] authorizes the Federal Energy Regulatory Commission (FERC) certificate holders to condemn all necessary rights-of-way, whether owned by private parties or by States.

Reading tea leaves: The Court strives for an equitable distribution of opinion writing among the Justices. All have now done six opinions, but Justice Alito and Barrett have only five opinions each, which makes it likely that they have the last two opinions on Thursday. You would be correct to fear that this is an ominous sign for the Voting Rights Act in Brnovich.

The last two cases to be decided on Thursday are (h/t SCOTUSblog):

1. Brnovich v. Democratic National Committee.

Issues: (1) Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct [right church, wrong pew rule], violates Section 2 of the Voting Rights Act; and (2) whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.

1. Americans for Prosperity Foundation v. Bonta (consolidated with Thomas More Law Center v. Bonta)

Issue: Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations  is narrowly tailored to an asserted law-enforcement interest.

I will do a wrap up of SCOTUS Watch on Thursday.