Decision Season Starts at the Supreme Court

Late spring is decision season on the Supreme Court, and for judicial watchers, Monday morning did not disappoint. The Court issued three decisions, on seemingly minor issues, which could have larger reverberations across the country. If tradition is any guide, more contentious and newsworthy decisions await in mid-June.

In the decision you had to search legal blogs to find, the Court unanimously expanded the time available to private parties to bring whistleblower suits under the False Claims Act. In Cochise Consultancy Inc. v. United States, the Court ruled that such a party, called a relator, could rely on a second statute of limitations in a suit in which the U.S. has declined to intervene. Congress added to the FCA, a Civil War-era law originally meant to battle fraud in federal contracting, in 1986.

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office. (Photo:

The Court also dealt a blow against Apple on Monday, ruling an anti-trust lawsuit against the tech company could proceed. Justice Brett Kavanaugh sided with the liberals in Apple v. Pepper, writing that, without taking a position on the merits, long-standing Court precedent allowed the case to continue. In the case, four iPhone users argued Apple used its App Store monopoly to drive up the price of apps. The decision was hailed by consumer groups, and could open Apple— and others such as Amazon— to massive suits.

In a third case, Franchise Tax Board of California v. Hyatt, the Court ruled, again 5-4, that states have sovereign immunity in other states’ courts. This overturned a 40-year old case, Nevada v. Hall, which had allowed a state to be sued in another state’s court without its consent. That the conservative majority cited no specific provision of the Constitution, instead its “history and structure,” in reaching its decision raised several eyebrows. It also alarmed at least one of the Court’s liberals. “To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases,” Justice Stephen Breyer warned in his dissent. “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Higher-profile cases are still pending, including on the 2020 Census, partisan gerrymandering, and presidential power. Those paying attention to the other SCOTUS dramas— retirement watch— will likely have to wait. The four liberals will, perhaps quite literally, hang on for dear life (or at least until after the 2020 presidential election). Meanwhile, at least one potential departure, Justice Clarence Thomas, is a firm and public “No.” While many other issues will have to wait until next term to be heard, at least in FTB v. Hyatt, the new majority hinted at sending a message to the myriad states planning challenges to Roe and Casey: start your engines.

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Robert Martin (CN Staff)

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