Supreme Court Update: Orders - June 2018
The Nine kicked off the week with four new decisions, though only three came with signed opinions. In Husted v. A. Philip Randolph Institute (No. 16-980), the Court held (5-4) that Ohio's "use it or lose it" practice of cancelling the voter registrations of individuals who fail to vote for two years and fail to respond to an address-verification does not violate the National Voter Registration Act. In Sveen v. Melin (No. 16-1432), the Court held (8-1) that a Minnesota law providing that a divorce automatically nullifies the prior designation of a surviving spouse as a life-insurance beneficiary does not violate the Contracts Clause of the Constitution. And in China Agritech v. Resh (No. 17-432), the Court unanimously held that, while the timely filing of a class action tolls the applicable statute of limitations for all class members, if class certification is denied, a putative class member cannot, in lieu of promptly joining or filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations.
We'll have summaries of those three decisions in due course. But we won't be summarizing Washington v. United States (No. 17-269), a case concerning tribal fishing rights under treaties dating back to the 1850s. Not only are the treaties old, but this particular dispute has been kicking around so long that it came before Justice Kennedy back when he was a judge on the Ninth Circuit in 1985. After discovering that he'd participated in an earlier phase of the case, Justice Kennedy recused himself, leaving the Court short-handed. The remaining eight Justices apparently could not agree on whether Washington's construction and maintenance of thousands of barrier culverts (which permit the flow of water, but not salmon) beneath roadways constructed across salmon-bearing streams violated the State's treaty obligations. As you'll recall from the Scalia-Gorsuch interregnum, that means the Ninth Circuit's decision—which upheld an injunction ordering the State to make approximately $2 billion in culvert repairs—is "affirmed by an equally divided Court."