ESSAY ON SECTION 5: INFORMAL PROCESSES AND DISCRETION (Due 11:55 pm, May 13) Essays should be 4-6 double-spaced pages. They should be written using only lectures and reading materials provided on Moodle. Identify the sources for specific facts, concepts, and quotes by simple parenthetical references. Since you are only to use class materials, the instructor should easily be able to identify the source. For the essays, you cannot “cut and paste”. Use the materials from class only and be sure to provide a simple reference, such as (Powerpoint) or (Library of Congress). Answer all parts of the chosen question. Demonstrate that you have reviewed and understand any relevant information in that section’s materials. When useful to the answer, incorporate details such as case names, author’s names, facts, and particularly specific terms or jargon important to that subject. The essays should be thematic. Sentences should be complete. Always address each part of the question. Always include specific details, terms, and cases that properly fit into the analysis. SCENARIO: You work for the Oregon Liquor Control Commission(OLCC) in the Recreational Marijuana Licensing Office(RMLO). You have many applicants and the place is short-staffed since you loaned workers to the Unemployment Division. You have two scheduled video meetings today. The first is with a Ms. Eleanor Rigby. Her e-mail says that she is an 80-year old grandmother who needs some extra income to cover her grandson’s tuition. She wants to explore whether it would be a good idea for her to open a marijuana dispensary in Monmouth. The second meeting will be with Bill Sellsmore from Curaleaf, a marijuana business worth well over $500 million. Sellsmore is interested in getting the OLCC to guarantee the licensing of ten new retail outlets before they invest in Oregon anymore. While the basic law is that dispensaries must be at least 1,000 feet from a school, there is the possibility for the RMLO to grant limited exceptions. These are based on agency discretionary judgement that the retail facility will not operate in a way that attracts attention from students. Here are the questions you must answer. If possible, connect your answers to the scenario above. 1. How important are informal processes to public administration? What factors influence the outcomes of informal processes, such as the meetings you have scheduled? 2. What happens if you provide inaccurate advice during these meetings and Rigby or Sellsmore make a bad business decision as a result? 3) How do the courts generally review agency discretionary actions, as demonstrated by the federal court? What could the RMLO get wrong and have a licensing decision overturned in judicial review? ESSAY ON SECTION 5: INFORMAL PROCESSES AND DISCRETION (Due 11:55 pm, May 13) Essays should be 4-6 double-spaced pages. They should be written using only lectures and reading materials provided on Moodle. Identify the sources for specific f.

1. ESSAY ON SECTION 5: INFORMAL PROCESSES AND
DISCRETION (Due 11:55 pm, May 13)
Essays should be 4-6 double-spaced pages. They should be
written using only lectures and reading materials provided on
Moodle. Identify the sources for specific facts, concepts, and
quotes by simple parenthetical references. Since you are only to
use class materials, the instructor should easily be able to
identify the source.
For the essays, you cannot “cut and paste”. Use the materials
from class only and be sure to provide a simple reference, such
as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
Always address each part of the question. Always include
specific details, terms, and cases that properly fit into the
analysis.
SCENARIO: You work for the Oregon Liquor Control
Commission(OLCC) in the Recreational Marijuana Licensing
Office(RMLO). You have many applicants and the place is
short-staffed since you loaned workers to the Unemployment
Division.
You have two scheduled video meetings today. The first is with

2. a Ms. Eleanor Rigby. Her e-mail says that she is an 80-year old
grandmother who needs some extra income to cover her
grandson’s tuition. She wants to explore whether it would be a
good idea for her to open a marijuana dispensary in Monmouth.
The second meeting will be with Bill Sellsmore from Curaleaf,
a marijuana business worth well over $500 million. Sellsmore is
interested in getting the OLCC to guarantee the licensing of ten
new retail outlets before they invest in Oregon anymore.
While the basic law is that dispensaries must be at least 1,000
feet from a school, there is the possibility for the RMLO to
grant limited exceptions. These are based on agency
discretionary judgement that the retail facility will not operate
in a way that attracts attention from students.
Here are the questions you must answer. If possible, connect
your answers to the scenario above.
1. How important are informal processes to public
administration? What factors influence the outcomes of
informal processes, such as the meetings you have scheduled?
2. What happens if you provide inaccurate advice during these
meetings and Rigby or Sellsmore make a bad business decision
as a result?
3) How do the courts generally review agency discretionary
actions, as demonstrated by the federal court? What could the
RMLO get wrong and have a licensing decision overturned in
judicial review?
ESSAY ON SECTION 5: INFORMAL PROCESSES AND
DISCRETION (Due 11:55 pm, May 13)

3. Essays should be 4-6 double-spaced pages. They should be
written using only lectures and reading materials provided on
Moodle. Identify the sources for specific facts, concepts, and
quotes by simple parenthetical references. Since you are only to
use class materials, the instructor should easily be able to
identify the source.
For the essays, you cannot “cut and paste”. Use the materials
from class only and be sure to provide a simple reference, such
as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
Always address each part of the question. Always include
specific details, terms, and cases that properly fit into the
analysis.
SCENARIO: You work for the Oregon Liquor Control
Commission(OLCC) in the Recreational Marijuana Licensing
Office(RMLO). You have many applicants and the place is
short-staffed since you loaned workers to the Unemployment
Division.
You have two scheduled video meetings today. The first is with
a Ms. Eleanor Rigby. Her e-mail says that she is an 80-year old
grandmother who needs some extra income to cover her
grandson’s tuition. She wants to explore whether it would be a
good idea for her to open a marijuana dispensary in Monmouth.
The second meeting will be with Bill Sellsmore from Curaleaf,
a marijuana business worth well over $500 million. Sellsmore is
interested in getting the OLCC to guarantee the licensing of ten

4. new retail outlets before they invest in Oregon anymore.
While the basic law is that dispensaries must be at least 1,000
feet from a school, there is the possibility for the RMLO to
grant limited exceptions. These are based on agency
discretionary judgement that the retail facility will not operate
in a way that attracts attention from students.
Here are the questions you must answer. If possible, connect
your answers to the scenario above.
1. How important are informal processes to public
administration? What factors influence the outcomes of
informal processes, such as the meetings you have scheduled?
2. What happens if you provide inaccurate advice during these
meetings and Rigby or Sellsmore make a bad business decision
as a result?
3) How do the courts generally review agency discretionary
actions, as demonstrated by the federal court? What could the
RMLO get wrong and have a licensing decision overturned in
judicial review?
Informal Policymaking:
Much of the work of agencies occurs before or instead of the
formal processes of rule-making and adjudication.
Kenneth Culp Davis: “informal activity is the lifeblood of the
administrative process”

5. 90% of actions are informal, and 99% of informal action is
discretionary
Politicians, citizens and groups pressure agencies to resolve
problems or make decisions in a flexible, cost efficient, and
more collaborative manner.
- More discretion when there are less resources
SECTION V –INFORMAL PROCESSES & DISCRETION
Rise of modern informal processes
Clinton/Gore’s “reinventing government” reflected movement
for collaborative administrative processes at both federal and
state levels.
- Alternative dispute resolution(ADR) in adjudicative situations
(and judicial)
- Negotiated rulemaking
- Placed in contracts
But it’s important to consider normal inquiries and interactions
as well
Discretion and the administrative state
Informal processes are further advancement of agency
discretion: opportunities for the agency to make choices that
have effect on policy and private entities and individuals.
Conservatives are concerned this has gone too far, and there is
judicial movement to restrain or reverse this expansion of

6. agency power.
Seven Factors affecting the conditions or outcomes of informal
administrative processes (From Cooper)
1. Player types: repeat verse single-shot players
2. Sunk costs: hard to pull out of existing political or
economic commitments
3. Anticipated costs: estimates of costs and consequences
influence choice of actions
SECTION V –INFORMAL PROCESSES & DISCRETION
Seven Factors affecting the conditions or outcomes of informal
administrative processes (From Cooper)
4. Power of the raised eyebrow: interpretation of non-written
communication influences behavior
Individualized justice: official may use discretion to help
someone
6. Due process verse efficiency models in PA – problem of
balancing fairness with press of business
Seven Factors affecting the conditions or outcomes of informal
administrative processes (From Cooper)
7. Power law: Mark Green
- Using legal power to serve objectives, not to serve justice
- threatening or initiating intimidating lawsuits
- having attorney present in informal context

7. - fostering statutory or code changes who impacts are unclear
at creation
- Endless appeals for more legal or public hearings
Common types of informal mechanisms
THESE MAY CONVERGE WITH ADJUDICATION
- random inquiries
- preformal processes: pushed in contracts as ADR
- filtering actions: prehearing conferences
- informal negotiated settlements
- preclearance procedures : advisory opinions
- opting out techniques: consent decree
SECTION V –INFORMAL PROCESSES & DISCRETION
SECTION V –INFORMAL PROCESSES & DISCRETION
INFORMAL MECHANISMS: Diversions
1. Negotiation: two parties negotiate directly
2. Mediation: two parties work with facilitator
3. Arbitration: neutral decision-maker
Advantages of Informal Processes
1. speed

8. 2. low cost
3. less adversarial
4. beyond zero sum
5. less disruption
6. enhance discretion and flexibility
SECTION V –INFORMAL PROCESSES & DISCRETION
SECTION V –INFORMAL PROCESSES & DISCRETION
Disadvantages
1. potential for discrimination
2. objectivity issue: sunk costs
3. organizational politics
4. may deter formal processes
5. weaker recordkeeping
6. no guide to future players
7. may not diffuse conflict
SECTION V –INFORMAL PROCESSES & DISCRETION
Cases in Informal Actions:
Estoppel: legal term meaning that one is prevented from taking
a legal action because of a prior action or activity
Federal Crop Insurance Corporation v. Merrill (1947)
- “square corners”
Goldberg v. Weinberger (1976)
And now some words from our sponsors:
“However many people complain about the "red tape," it would
be sheer illusion to think ... continuous administrative work can
be carried out in any field except by means of officials working

9. in offices.... The choice is only that between bureaucracy and
dillettantism.” MAX WEBER, Economy and Society
“Bureaucracy is not an obstacle to democracy, but an inevitable
complement to it.” JOSEPH A. SCHUMPETER, Capitalism
“Roy was just another bureaucrat to me, but I realized very soon
that without Roy this thing would have died.” Ben Shahn
“Bureaucracy defends the status quo long past the time when the
quo has lost its status” Laurence J. Peter
“The bureaucracy is expanding to meet the needs of the
expanding bureaucracy.” Oscar Wilde
But consider this quote about religion: “With or without
religion, you would have good people doing good things and
evil people doing evil things. But for good people to do evil
things, that takes religion.”. Steven Weinberg
Discretion
Administrative Discretion
“Power of an administrator to make significant decisions which
have the force of law, directly or indirectly, and that are not
specifically mandated by the Constitution, statutes, or other
sources of black letter law”

10. - decisions having the force of law left to administrator’s
judgment
In basic pragmatic terms, this is a dilemma.
Too much discretion creates uncertainty and potential
unfairness.
Too little discretion can create rigidity and potential unfairness.
Common visible examples of discretion
- Prosecutorial
Investigation
Opting for informal processes
Discretion always has constitutional and statutory limits
- Due process
- “ultra vires”
- reasonableness

11. Discretion
Perspectives on discretion:
Administrative Imperatives:
expertise
flexibility
efficiency
Court interests:
due process
equal protection
substantial justice
BASIC CHALLENGE: Rule of law verse discretion
Examples of Discretionary Cases
SEC v. Sloan (1978): Canadian Javelin trading suspended
Wisconsin v. City of New York (1996): discretion in
determining counting methods by U.S. Census for policy
Department of Commerce v. US House of Representatives
(1999): no discretion in sampling for apportionment
Dep’t of Commerce v. New York(2019): the Trump
administration’s justification for including citizenship question
on census did not have adequate rationale
Discretion
Court generally defers to claims of administrative expertise
Key cases on deference:
Chevron v. NRDC (1984): deference to agency statutory

12. interpretation when law is not clear.
re “stationary sources”
Kisor v Wilkie(2020) affirmed core of Auer(1997): courts
should defer to agency interpretations of vague rules.
Remedies for Abuses of Discretion
Kenneth Culp Davis: structure discretion
Most important : more rulemaking to reduce overall breadth of
discretion within areas of significant repetitive decision-making
Also:
- openness, publicizing policies and record keeping: IRS
is particularly notable in inconsistency and secrecy
- dispute resolution procedures, adjudication
- using lawyers preventatively
- judicial review
legislative and executive oversight
- ombudsman
Future of Discretion: Challenges to the “administrative state”
Chemerinsky: Three cases from 2019 reveal opinions that could
erode administrative discretion if they become majority views.
And Kavanaugh is just getting started.
Auer deference, strong minority views

13. Future of Discretion: Challenges to the “administrative state”
Gundy v. US (2019): strong minority challenges legislative
delegation of power to decide who to apply specific law to,
echoes of Schector(1936)
Kisor v. Wilkie(2019): weakened Auer deference, strong
minority views
Dep’t of Commerce v. New York(2019): odd case out, anti-state
minority said there should be deference to agency
Harvard and Yale Dominate. I mean they really dominate!
Kavanaugh graduated from Yale Law School, just like Clarence
Thomas, Sonia Sotomayor, and Samuel Alito. John Roberts,
outgoing Justice Anthony Kennedy, Steven Breyer, Elena
Kagan, Neil Gorsuch, and Ruth Bader Ginsburg all attended
Harvard Law School (Ginsburg enrolled at Harvard, but
ultimately transferred to Columbia when her husband got a job
in New York City).

14. Current Members
John G. Roberts, Jr., Chief Justice of the United States,
was born in Buffalo, New York, January 27, 1955. He married
Jane Marie Sullivan in 1996 and they have two children -
Josephine and Jack. He received an A.B. from Harvard College
in 1976 and a J.D. from Harvard Law School in 1979. He served
as a law clerk for Judge Henry J. Friendly of the United States
Court of Appeals for the Second Circuit from 1979–1980 and as
a law clerk for then-Associate Justice William H. Rehnquist of
the Supreme Court of the United States during the 1980 Term.
He was Special Assistant to the Attorney General, U.S.
Department of Justice from 1981–1982, Associate Counsel to
President Ronald Reagan, White House Counsel’s Office from
1982–1986, and Principal Deputy Solicitor General, U.S.
Department of Justice from 1989–1993. From 1986–1989 and
1993–2003, he practiced law in Washington, D.C. He was
appointed to the United States Court of Appeals for the District
of Columbia Circuit in 2003. President George W. Bush
nominated him as Chief Justice of the United States, and he
took his seat September 29, 2005.
Clarence Thomas, Associate Justice,
was born in the Pinpoint community near Savannah, Georgia on
June 23, 1948. He attended Conception Seminary from 1967-
1968 and received an A.B., cum laude, from College of the Holy
Cross in 1971 and a J.D. from Yale Law School in 1974. He was
admitted to law practice in Missouri in 1974, and served as an
Assistant Attorney General of Missouri, 1974-1977; an attorney
with the Monsanto Company, 1977-1979; and Legislative
Assistant to Senator John Danforth, 1979-1981. From 1981–

15. 1982 he served as Assistant Secretary for Civil Rights, U.S.
Department of Education, and as Chairman of the U.S. Equal
Employment Opportunity Commission, 1982-1990. From 1990–
1991, he served as a Judge on the United States Court of
Appeals for the District of Columbia Circuit. President Bush
nominated him as an Associate Justice of the Supreme Court
and he took his seat October 23, 1991. He married Virginia
Lamp on May 30, 1987 and has one child, Jamal Adeen by a
previous marriage.
Ruth Bader Ginsburg, Associate Justice,
was born in Brooklyn, New York, March 15, 1933. She married
Martin D. Ginsburg in 1954, and has a daughter, Jane, and a
son, James. She received her B.A. from Cornell University,
attended Harvard Law School, and received her LL.B. from
Columbia Law School. She served as a law clerk to the
Honorable Edmund L. Palmieri, Judge of the United States
District Court for the Southern District of New York, from
1959–1961. From 1961–1963, she was a research associate and
then associate director of the Columbia Law School Project on
International Procedure. She was a Professor of Law at Rutgers
University School of Law from 1963–1972, and Columbia Law
School from 1972–1980, and a fellow at the Center for
Advanced Study in the Behavioral Sciences in Stanford,
California from 1977–1978. In 1971, she was instrumental in
launching the Women’s Rights Project of the American Civil
Liberties Union, and served as the ACLU’s General Counsel
from 1973–1980, and on the National Board of Directors from
1974–1980. She was appointed a Judge of the United States
Court of Appeals for the District of Columbia Circuit in 1980.
President Clinton nominated her as an Associate Justice of the
Supreme Court, and she took her seat August 10, 1993.
Stephen G. Breyer, Associate Justice,

16. was born in San Francisco, California, August 15, 1938. He
married Joanna Hare in 1967, and has three children - Chloe,
Nell, and Michael. He received an A.B. from Stanford
University, a B.A. from Magdalen College, Oxford, and an
LL.B. from Harvard Law School. He served as a law clerk to
Justice Arthur Goldberg of the Supreme Court of the United
States during the 1964 Term, as a Special Assistant to the
Assistant U.S. Attorney General for Antitrust, 1965–1967, as an
Assistant Special Prosecutor of the Watergate Special
Prosecution Force, 1973, as Special Counsel of the U.S. Senate
Judiciary Committee, 1974–1975, and as Chief Counsel of the
committee, 1979–1980. He was an Assistant Professor,
Professor of Law, and Lecturer at Harvard Law School, 1967–
1994, a Professor at the Harvard University Kennedy School of
Government, 1977–1980, and a Visiting Professor at the College
of Law, Sydney, Australia and at the University of Rome. From
1980–1990, he served as a Judge of the United States Court of
Appeals for the First Circuit, and as its Chief Judge, 1990–
1994. He also served as a member of the Judicial Conference of
the United States, 1990–1994, and of the United States
Sentencing Commission, 1985–1989. President Clinton
nominated him as an Associate Justice of the Supreme Court,
and he took his seat August 3, 1994.
Samuel A. Alito, Jr., Associate Justice,
was born in Trenton, New Jersey, April 1, 1950. He married
Martha-Ann Bomgardner in 1985, and has two children - Philip
and Laura. He served as a law clerk for Leonard I. Garth of the
United States Court of Appeals for the Third Circuit from 1976–
1977. He was Assistant U.S. Attorney, District of New Jersey,
1977–1981, Assistant to the Solicitor General, U.S. Department
of Justice, 1981–1985, Deputy Assistant Attorney General, U.S.
Department of Justice, 1985–1987, and U.S. Attorney, District
of New Jersey, 1987–1990. He was appointed to the United
States Court of Appeals for the Third Circuit in 1990. President

17. George W. Bush nominated him as an Associate Justice of the
Supreme Court, and he took his seat January 31, 2006.
Sonia Sotomayor, Associate Justice,
was born in Bronx, New York, on June 25, 1954. She earned a
B.A. in 1976 from Princeton University, graduating summa cum
laude and receiving the university’s highest academic honor. In
1979, she earned a J.D. from Yale Law School where she served
as an editor of the Yale Law Journal. She served as Assistant
District Attorney in the New York County District Attorney’s
Office from 1979–1984. She then litigated international
commercial matters in New York City at Pavia & Harcourt,
where she served as an associate and then partner from 1984–
1992. In 1991, President George H.W. Bush nominated her to
the U.S. District Court, Southern District of New York, and she
served in that role from 1992–1998. She served as a judge on
the United States Court of Appeals for the Second Circuit from
1998–2009. President Barack Obama nominated her as an
Associate Justice of the Supreme Court on May 26, 2009, and
she assumed this role August 8, 2009.
Elena Kagan, Associate Justice,
was born in New York, New York, on April 28, 1960. She
received an A.B. from Princeton in 1981, an M. Phil. from
Oxford in 1983, and a J.D. from Harvard Law School in 1986.
She clerked for Judge Abner Mikva of the U.S. Court of
Appeals for the D.C. Circuit from 1986-1987 and for Justice
Thurgood Marshall of the U.S. Supreme Court during the 1987
Term. After briefly practicing law at a Washington, D.C. law
firm, she became a law professor, first at the University of
Chicago Law School and later at Harvard Law School. She also
served for four years in the Clinton Administration, as
Associate Counsel to the President and then as Deputy Assistant
to the President for Domestic Policy. Between 2003 and 2009,

18. she served as the Dean of Harvard Law School. In 2009,
President Obama nominated her as the Solicitor General of the
United States. A year later, the President nominated her as an
Associate Justice of the Supreme Court on May 10, 2010. She
took her seat on August 7, 2010.
Neil M. Gorsuch, Associate Justice,
was born in Denver, Colorado, August 29, 1967. He and his
wife Louise have two daughters. He received a B.A. from
Columbia University, a J.D. from Harvard Law School, and a
D.Phil. from Oxford University. He served as a law clerk to
Judge David B. Sentelle of the United States Court of Appeals
for the District of Columbia Circuit, and as a law clerk to
Justice Byron White and Justice Anthony M. Kennedy of the
Supreme Court of the United States. From 1995–2005, he was in
private practice, and from 2005–2006 he was Principal Deputy
Associate Attorney General at the U.S. Department of Justice.
He was appointed to the United States Court of Appeals for the
Tenth Circuit in 2006. He served on the Standing Committee on
Rules for Practice and Procedure of the U.S. Judicial
Conference, and as chairman of the Advisory Committee on
Rules of Appellate Procedure. He taught at the University of
Colorado Law School. President Donald J. Trump nominated
him as an Associate Justice of the Supreme Court, and he took
his seat on April 10, 2017.
Brett M. Kavanaugh, Associate Justice,
was born in Washington, D.C., on February 12, 1965. He
married Ashley Estes in 2004, and they have two daughters -
Margaret and Liza. He received a B.A. from Yale College in
1987 and a J.D. from Yale Law School in 1990. He served as a
law clerk for Judge Walter Stapleton of the U.S. Court of
Appeals for the Third Circuit from 1990-1991, for Judge Alex
Kozinski of the U.S. Court of Appeals for the Ninth Circuit

19. from 1991-1992, and for Justice Anthony M. Kennedy of the
U.S. Supreme Court during the 1993 Term. In 1992-1993, he
was an attorney in the Office of the Solicitor General of the
United States. From 1994 to 1997 and for a period in 1998, he
was Associate Counsel in the Office of Independent Counsel.
He was a partner at a Washington, D.C., law firm from 1997 to
1998 and again from 1999 to 2001. From 2001 to 2003, he was
Associate Counsel and then Senior Associate Counsel to
President George W. Bush. From 2003 to 2006, he was
Assistant to the President and Staff Secretary for President
Bush. He was appointed a Judge of the United States Court of
Appeals for the District of Columbia Circuit in 2006. President
Donald J. Trump nominated him as an Associate Justice of the
Supreme Court, and he took his seat on October 6, 2018.
The US Supreme Court: Who are the justices?
By Taylor Kate BrownBBC News Magazine
·
BBC (November 2018)
Elena Kagan
On the court since: 7 August 2010
How she got to the court: Kagan grew up in New York City. At
the age of 12, she convinced her rabbi to hold the synagogue's
first formal bat mitzvah, the rite of passage for young women.
After law school at Harvard, she clerked for Justice Thurgood
Marshall. After a successful stint as the first female dean of
Harvard Law School, she was briefly US solicitor general - the
federal government's top representative at the US Supreme
Court, before being nominated by President Barack Obama for
the high court.
Who is she as a justice? Kagan is the first justice in decades not
to previously serve as a judge. She is part of the court's left-
leaning wing, but has been the author of many of recent
unanimous or near unanimous decisions. Her writing is often
easy for a layperson to understand without sacrificing legal

20. analysis, and she is an aggressive questioner during oral
arguments. Kagan first took her seat at the bench at the age of
50 and could potentially be a force on the court for decades.
Dahlia Lithwick, Slate's legal correspondent, says Kagan is
"much more inscrutable" on issues than other recent additions to
the court. "She's very close to the vest," she says.
Media captionListen to Elena Kagan at arguments
Justice's Opinion: Kagan wrote an impassioned dissent in the
Town of Greece v Galloway, in which the court heard a
challenge to Greece's practice of opening town meetings with a
Christian prayer.
"When a person goes to court, a polling place, or an
immigration proceeding, I could go on: to a zoning agency, a
parole board hearing, or the DMV - government officials do not
engage in sectarian worship, nor do they ask her to do likewise.
They all participate in the business of government not as
Christians, Jews, Muslims (and more), but only as Americans -
none of them different from any other for that civic purpose.
Why not, then, at a town meeting?"
Sonia Sotomayor
On the court since: 8 August 2009
How she got to the court: Sotomayor was born to Puerto Rican
parents in the Bronx. As a student at Princeton University, she
fought for hiring more Latino professors and admitting more
Latino students. After Yale Law school, she became a
prosecutor in New York and was later named to the Second
Circuit Court of Appeals. The federal appeals courts are often
the final step before the Supreme Court for cases. In the second
circuit, Sotomayor authored more than 150 majority opinions -
including a few that were ultimately overruled by the higher
court.
Who is she as a justice? Sotomayor is the first Hispanic justice.
She's also been one of the most public facing - her memoir
appeared on the New York Times' best-selling list, she appeared

21. twice on Sesame Street, once to adjudicate a dispute between
Goldilocks and Baby Bear, and she helped drop the ball in
Times Square on New Year's Eve 2013. "She's trying really hard
to demystify the court, showing 'You can be a justice too',"
Lithwick says.
Her former experience as a prosecutor and trial judge often
leads her to challenge lawyers on the facts of a case, says
Marcia Coyle, the chief Washington correspondent for the
National Law Journal. "She knows how criminal trials operate,"
Coyle says.
Media captionListen to Sonia Sotomayor at arguments
Justice's Opinion: In a dissent to the court's 5-3 ruling in
Schuette v. BAMN, a case involving a ban on affirmative action
policies, Sotomayor argued directly against the conservative
justices in how the court should treat challenges to race-based
laws.
"Race matters. Race matters in part because of the long history
of racial minorities' being denied access to the political
process… And race matters for reasons that really are only skin
deep, that cannot be discussed any other way, and that cannot be
wished away. Race matters to a young man's view of society
when he spends his teenage years watching others tense up as he
passes, no matter the neighbourhood where he grew up. Race
matters to a young woman's sense of self when she states her
hometown, and then is pressed, 'No, where are you really
from?', regardless of how many generations her family has been
in the country…. Race matters because of the slights, the
snickers, the silent judgments that reinforce that most crippling
of thoughts: 'I do not belong here.'"
Samuel Alito
On the court since: 31 January 2006
How he got to the court: Alito grew up in New Jersey in an
Italian immigrant family. While at Princeton University, he was
involved in conservative and libertarian groups, as well as the

22. Army Reserve Officer Training Corps. After Yale law school,
he was a prosecutor in New Jersey and served in the Reagan
administration in the justice department, including as assistant
to the solicitor general, where he argued before the Supreme
Court. President George HW Bush named him to the Third
Circuit Court of Appeals in 1990, where he stayed until his
nomination to The Supreme Court.
Who is he as a justice? Alito is a conservative justice, but one
who does not hew as often to originalism as fellow
conservatives Scalia and Thomas. He is not always talkative in
oral arguments but his questions are sharp, aiming to pick apart
an argument's logic. Alito has a low public profile despite being
a large part of the court's rightward shift on business, campaign
finance and racial issues over the past decade.
The former prosecutor has been "very pro-government" in
criminal cases, Coyle says, and has shown less willingness than
his conservative colleagues to protect free speech in cases
where it is harmful or hateful.
Media captionListen to Samuel Alito at arguments
Justice's Opinion: Alito wrote for the majority in a labour case,
Harris v Quinn, in which the court ruled labour groups could
not collect fees from Illinois home health care workers who did
not want to join the union despite being covered by collective
bargaining.
"If we accepted Illinois' argument, we would approve an
unprecedented violation of the bedrock principle that, except
perhaps in the rarest of circumstances, no person in this country
may be compelled to subsidise speech by a third party that he or
she does not wish to support."
John Roberts
On the court since: 29 September 2005
How he got to the court: Born in New York and raised in
Indiana, Roberts attended a boarding school as a teenager but
also spent summers working in a steel mill. After considering

23. becoming a historian at Harvard, he went to law school there
instead, eventually clerking for then-Associate Justice
Rehnquist. He spent many years as a lawyer in the Reagan
administration then entered private practice, arguing before the
high court and serving as one of several legal advisers to
George W Bush in the Florida presidential recount case.
Originally nominated to fill the spot left by retiring Justice
Sandra Day O'Connor, Roberts was re-nominated for the chief
justice position after Chief Justice Rehnquist died between
terms, and his nomination was fast-tracked.
Who is he as a justice: A conservative justice, Roberts is the
third-youngest Chief Justice in the court's history, confirmed at
50 years old. Last year's term saw more than half its cases
decided unanimously, something many court watchers cite as
the outcome of Roberts' desire to foster agreement through
narrower rulings. He also notably wrote the 5-4 opinion that
shot down a major challenge to President Barack Obama's
healthcare law.
"I think he cares deeply about how the 'Roberts court' looks,"
Lithwick says, and knows he can move the court slowly over
decades.
"He doesn't want huge swings, except in areas he feels very
strongly about," Coyle says, like government's role in racial
issues, campaign finance's relation to free speech and the
structure of constitution. Roberts also looks to keep decorum on
the bench during oral arguments.
Media captionListen to John Roberts at arguments
Justice's Opinion: Roberts, writing for the majority in Shelby
County v Holder, effectively knocked out a part of the Voting
Rights Act which requires certain states to gain permission of
the justice department before changing their voting laws.
"At the same time, voting discrimination still exists; no one
doubts that. The question is whether the Act's extraordinary
measures, including its disparate treatment of the States,
continue to satisfy constitutional requirements. As we put it a
short time ago, "the Act imposes current burdens and must be

24. justified by current needs".
Stephen Breyer
On the court since: 3 August 1994
How he got to the court: Breyer grew up in San Francisco with a
lawyer father and a politically-active mother, attending
Stanford, then Harvard Law. After clerking for Justice Arthur
Goldberg, he moved into government, working as counsel in
various positions in Congress, including as an assistant special
prosecutor in the Watergate investigation. He spent a lengthy
period of time on the First Circuit Court of Appeals and was
considered for a Supreme Court nomination in 1991. It went to
Ruth Bader Ginsburg instead. President Clinton went back to
Breyer when Justice Blackmun retired from the court in 1994.
Who is he as a justice? Breyer believes the court needs to
consider the history of laws, the intent of Congress and the
consequences of its decisions. "He believes deeply in
government and government processes," Lithwick says.
Breyer, the king of the complicated hypothetical, has sought to
"bridge gaps" in differences between the justices, Coyle says,
by listening closely to find give-and-take between justices on an
issue.
"Those hypothetical questions are really designed for his
colleagues," Coyle says. He did this last year while writing a 9-
0 opinion in a politically charged case over the president's
power to appoint judges and other officials during Senate
recesses. The ruling was narrowly decided against the president,
and both the conservative and liberal wings were in agreement
on the final judgement - but not all the details.
Media captionListen to Stephen Breyer at arguments
Justice's Opinion: From the aforementioned 9-0 ruling, National
Labor Relations Board v Noel Canning.
"There is a great deal of history to consider here. Presidents
have made recess appointments since the beginning of the
Republic. Their frequency suggests that the Senate and

25. President have recognised that recess appointments can be both
necessary and appropriate in certain circumstances. We have not
previously interpreted the Clause, and, when doing so for the
first time in more than 200 years, we must hesitate to upset the
compromises and working arrangements that the elected
branches of Government themselves have reached."
Ruth Bader Ginsburg
On the court since: 10 August 1993
How she got to the court: Another New Yorker, Ginsburg stayed
in the state to attend Cornell and eventually transferred to
Columbia Law School after first enrolling at Harvard. She was
rejected from a Supreme Court clerkship after
graduating because of her gender, according to the New York
Times. As she moved into a teaching and litigating career,
Ginsburg focused on women's rights - starting the first law
journal focused on the topic and arguing six cases before the
Supreme Court. She was confirmed to the federal appeals court
for the District of Columbia in 1980 and 13 years later, was
nominated by President Bill Clinton for a seat at the top court.
Who is she as a justice? As the most senior justice on the
court's left wing, Ginsburg is often in charge of assigning
dissents in highly controversial cases. She has used this power
to write a "a string of barnstormers", Lithwick says, including a
case which expanded the religious exemptions to birth control
insurance coverage, and another which made major changes to a
law prohibiting racial discrimination in voting. The dissents,
combined with her refusal to heed calls to step down during the
first Obama term, has earned her a fan base and her own
internet meme - Notorious RBG. "She's the last vestige of an
old guard of liberalism" on the court, Lithwick says, and the
last civil rights lawyer on the bench.
Media captionListen to Ruth Bader Ginsburg at arguments
Justice's Opinion: In a dissent in Burwell v Hobby Lobby,
Ginsburg wrote the court's decision to expand religious

26. exemptions to "closely held" corporations was in error.
"Indeed, until today, religious exemptions had never been
extended to any entity operating in 'the commercial, profit-
making world'. The reason why is hardly obscure. Religious
organisations exist to foster the interests of persons subscribing
to the same religious faith. Not so of for-profit corporations.
Workers who sustain the operations of those corporations
commonly are not drawn from one religious community. Indeed,
by law, no religion-based criterion can restrict the work force of
for-profit corporations."
· Why half of America panics when this woman falls ill
Clarence Thomas
On the court since: 23 October 1991
How he got to the court: Thomas was born in a small town in
Georgia, and was one of the few African-Americans in
attendance during a short stint in seminary and then at Holy
Cross College. But unlike Justice Sotomayor, those experiences
made him distrustful of affirmative action policies. After
finishing Yale Law, he worked in Missouri government and in
Washington DC before being named chairman of the Equal
Employment Opportunity Commission, an agency that responds
to discrimination claims in the workplace. After a bruising
confirmation hearing - in which a former employee accused him
of sexual harassment - Thomas was narrowly confirmed to
Supreme Court, at the relatively young age of 43.
Who is he as a justice? Thomas' originalism is exacting,
including a disregard for stare decisis, respect for prior court
rulings and precedence. Thomas has also not asked a question
during oral arguments in nine years. He has previously said he
doesn't care for the question-heavy arguments, sometimes
already drafting opinions based on written briefs before any
lawyer gets up to argue. Thomas often files entirely separate
dissents rarely joined by others, but Coyle says he is influential
in other ways, including during conferences only justices

27. attend, and in "difficult decisions" in areas that don't get a lot
of press - like intellectual property and tax law. Thomas
replaced the first African-American justice on the court -
Thurgood Marshall - and remains the only current black justice.
Media captionListen to Clarence Thomas at arguments (in 2006)
Justice's Opinion: In a dissent to a 2011 case, Brown v
Entertainment Merchants Association, Thomas argues it is a
mistake for the court to overturn a California law banning the
sale of violent video games to minors.
"But I do not think the First Amendment stretches that far. The
practices and beliefs of the founding generation establish that
'the freedom of speech', as originally understood, does not
include a right to speak to minors (or a right of minors to access
speech) without going through the minors' parents or
guardians."
Image copyrightREUTERS
Neil Gorsuch
On the court since: 10 April, 2017
How he got to the court: At 49, Gorsuch was the youngest
nominee in a quarter of a century when he was approved in
2017. The Colorado native, whose legal pedigree includes
Harvard and Oxford, was first nominated to the 10th US Circuit
Court of Appeals by former President George W Bush in 2006.
He began his law career clerking for Supreme Court Justices
Byron White and Anthony Kennedy, and worked in a private
law practice in Washington for a decade and served as the
principal deputy assistant associate attorney general at the
Justice Department under the Bush administration. Judge
Gorsuch graduated from Columbia University and Harvard Law
School, where former President Barack Obama was a classmate,
and earned a doctorate in legal philosophy at Oxford University.
Who is he as a justice? Gorsuch succeeded the late Supreme
Court Justice Antonin Scalia and was welcomed by
conservatives who consider him to espouse a similarly strict
interpretation of law. In his first year on the court he has

28. cemented the 5-4 conservative advantage, and that's been seen
in a series of rulings on contentious issues such as the Trump
travel ban, trade union fees and gerrymandering.
Image copyrightAFP
Brett Kavanaugh
On the court since: 6 October, 2018
How he got to the court: Kavanaugh served on the influential
Court of Appeals for the District of Colombia Circuit and was
formerly a White House aide under George W Bush. He
previously worked for Kenneth Starr, the independent counsel
who investigated Democratic President Bill Clinton in the
1990s. His confirmation process was one of the most
controversial in recent years amid allegations of sexual
misconduct in the 1980s, which he denied. After a hearing in
which one of his accusers gave a dramatic testimony of the
alleged incident and Kavanaugh fiercely defended his record, he
was approved by the Senate by 50-48. Born in Washington, DC
in 1965, Kavanaugh studied at Georgetown Preparatory School
an all-boys school in Bethesda, Maryland, and graduated from
Yale College and Yale Law School.
Who is he as a justice? He succeeded Anthony Kennedy, who
was the Supreme Court's swing vote, often casting the deciding
opinion in 5-4 cases, consolidating a conservative majority at
the top court. Some Democrats fiercely opposed to his name for
his views on delicate issues such as abortion. His views on the
environment and gun rights have also raised concerns among
environmentalists and gun control activists.
Department of Commerce v. House of Representatives (1999)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

29. Syllabus
The Constitution's Census Clause authorizes Congress to direct
an "actual Enumeration" of the American public every 10 years
to provide a basis for apportioning congressional representation
among the States. Pursuant to this authority, Congress has
enacted the Census Act (Act), 13 U.S.C. § 1 et seq., delegating
the authority to conduct the decennial census to the Secretary of
Commerce (Secretary). The Census Bureau (Bureau), which is
part of the Department of Commerce, announced a plan to use
two forms of statistical sampling in the 2000 Decennial Census
to address a chronic and apparently growing problem of
"undercounting" of some identifiable groups, including certain
minorities, children, and renters. In early 1998, two sets of
plaintiffs filed separate suits challenging the legality and
constitutionality of the plan. The suit in No. 98-564 was filed
in the District Court for the Eastern District of Virginia by four
counties and residents of 13 States. The suit in No. 98-404 was
filed by the United States House of Representatives in the
District Court for the District of Columbia. Each of the courts
held that the plaintiffs satisfied the requirements for Article III
standing, ruled that the Bureau's plan for the 2000 census
violated the Census Act, granted the plaintiffs' motion for
summary judgment, and permanently enjoined the planned use
of statistical sampling to determine the population for
congressional apportionment purposes. On direct appeal, this
Court consolidated the cases for oral argument.Held:
1. Appellees in No. 98-564 satisfy the requirements of Article
III standing. In order to establish such standing, a plaintiff
must allege personal injury fairly traceable to the defendant's
allegedly unlawful conduct and likely to be redressed by the
requested relief. E.g., Allen v. Wright, 468 U.S. 737, 751. A
plaintiff must establish that there exists no genuine issue of

30. material fact as to justiciability or the merits in order to prevail
on a summary judgment motion. See, e.g., Lujan v. National
Wildlife Federation, 497 U.S. 871, 884. The present
controversy is justiciable because several of the appellees have
met their burden of proof regarding their standing to bring this
suit. In support of their summary judgment motion, appellees
submitted an affidavit that demonstrates that it is a virtual
certainty that Indiana, where appellee Hofmeister resides, will
lose a House seat under the proposed census 2000 plan. That
loss undoubtedly satisfies the injury-in-fact requirement for
standing, since Indiana residents' votes will be diluted by the
loss of a Representative. See, e.g., Baker v. Carr, 369 U.S. 186,
208. Hofmeister also meets the second and third standing
requirements: There is undoubtedly a "traceable" connection
between the use of sampling in the decennial census and
Indiana's expected loss of a Representative, and there is a
substantial likelihood that the requested relief -- a permanent
injunction against the proposed uses of sampling in the census -
- will redress the alleged injury. Appellees have also
established standing on the basis of the expected effects of the
use of sampling in the 2000 census on intra-state redistricting.
Appellees have demonstrated that voters in nine counties,
including several of the appellees, are substantially likely to
suffer intrastate vote dilution as a result of the Bureau's plan.
Several of the States in which the counties are located require
use of federal decennial census population numbers for their
state legislative redistricting, and States use the population
numbers generated by the federal decennial census for federal
congressional redistricting. Appellees living in the nine
counties therefore have a strong claim that they will be injured
because their votes will be diluted vis-a-vis residents of
counties with larger undercount rates. The expected intrastate
vote dilution satisfies the injury-in-fact, causation, and
redressability requirements.

31. 2. The Census Act prohibits the proposed uses of statistical
sampling to determine the population for congressional
apportionment purposes. In 1976, the provisions here at issue
took their present form. Congress revised 13 U.S.C. § 141(a),
which authorizes the Secretary to "take a decennial census . . .
in such form and content as he may determine, including the use
of sampling procedures." This broad grant of authority is
informed, however, by the narrower and more specific § 195.
See Green v. Bock Laundry Machine Co., 490 U.S. 504, 524.
As amended in 1976, § 195 provides:
Except for the determination of population for purposes of
[congressional] apportionment . . . , the Secretary shall, if he
considers it feasible, authorize the use of . . . statistical . . .
"sampling" in carrying out the provisions of this title.
Section 195 requires the Secretary to use sampling in
assembling the myriad demographic data that are collected in
connection with the decennial census, but it maintains the
longstanding prohibition on the use of such sampling in
calculating the population for congressional apportionment.
Absent any historical context, the "except/shall" sentence
structure in the amended § 195 might reasonably be read as
either permissive or prohibitive. However, the section's
interpretation depends primarily on the broader context in
which that structure appears. Here, that context is provided by
over 200 years during which federal census statutes have
uniformly prohibited using statistical sampling for
congressional apportionment. The Executive Branch accepted,
and even advocated, this interpretation of the Act until 1994.
Pp. ___.
3. Because the Court concludes that the Census Act prohibits
the proposed uses of statistical sampling in calculating the

32. population for purposes of apportionment, the Court need not
reach the constitutional question presented. See, e.g., >Spector
Motor Service, Inc. v. McLaughlin, 323 U.S. 101, >105. The
Court's affirmance of the judgment in No. 98-564 also resolves
the substantive issues presented in No. 98-404; therefore that
case no longer presents a substantial federal question, and the
appeal therein is dismissed. Cf. Sanks v. Georgia, 401 U.S.
144, 145. P. 26. No. 98-404, 11 F.Supp.2d 76, appeal
dismissed; No. 98-564, 19 F.Supp.2d 543, affirmed.
O'CONNOR, J., delivered the opinion of the Court with respect
to Parts I, III-A, and IV, in which REHNQUIST, C.J., and
SCALIA, KENNEDY, and THOMAS, JJ., joined, the opinion of
the Court with respect to Part II, in which REHNQUIST, C.J.,
and SCALIA, KENNEDY, THOMAS, and BREYER,JJ., joined,
and an opinion with respect to Part III-B, in which
REHNQUIST, C.J., and KENNEDY, J., joined. SCALIA, J.,
filed an opinion concurring in part, in which THOMAS, J.,
joined, and in which REHNQUIST, C.J., and KENNEDY, J.,
joined as to Part II. BREYER, J., filed an opinion concurring in
part and dissenting in part. STEVENS, J., filed a dissenting
opinion, in which SOUTER and GINSBURG, JJ., joined as to
Parts I and II, and in which BREYER, J., joined as to Parts II
and III. GINSBURG, J., filed a dissenting opinion, in which
SOUTER, J.,joined.
EXCERPTS FROM MAJORITY OPINION BY JUSTICE
O’CONNOR
“….
The conclusion that the Census Act prohibits the use of
sampling for apportionment purposes finds support in the debate
and discussions surrounding the 1976 revisions to the Census
Act. At no point during the debates over these amendments did
a single Member of Congress suggest that the amendments

33. would so fundamentally change the manner in which the Bureau
could calculate the population for purposes of apportionment.
See 122 Cong.Rec. 35171-35175 (1976); id. at 9792-9803,
32251-32253, 33128-33132, 33305-33307, 33815; Mid-Decade
Census Legislation: Hearing on S. 3688 and H.R. 11337 before
the Subcommittee on Census and Statistics of the House
Committee on Post Office and Civil Service, 94th Cong., 2d
Sess. (1976). See also H.R.Rep. No. 94-944 (1976);
H.R.Conf.Rep. No. 94-1719 (1976); S.Rep. No. 94-1256 (1976).
This is true despite the fact that such a change would
profoundly affect Congress by likely shifting the number of
seats apportioned to some States and altering district lines in
many others. Indeed, it tests the limits of reason to suggest that
despite such silence, Members of Congress voting for those
amendments intended to enact what would arguably be the
single most significant change in the method of conducting the
decennial census since its inception. That the 1976 changes to
§§ 141 and 195 were not the focus of partisan debate, see post
at ___, is almost certainly due to the fact that the Members of
Congress voting on the bill read the text of the statute, as do
we, to prohibit the use of sampling in determining the
population for apportionment purposes. Moreover, it is hard to
imagine that, having explicitly prohibited the use of sampling
for apportionment purposes in 1957, Congress would have
decided to reverse course on such an important issue by
enacting only a subtle change in phraseology.
….”
ABA JOURNAL
Chemerinsky: How the Roberts Court could alter the
administrative state
BY ERWIN CHEMERINSKY
SEPTEMBER 4, 2019, 6:00 AM CDT
It has been widely predicted that the Roberts Court will impose
significant new limits on the administrative state, especially by

34. increasing judicial review of agency decisions.
Both Justices Neil M. Gorsuch and Brett M. Kavanaugh, as
federal court of appeals judges, urged less judicial deference to
the decisions of federal administrative agencies. The court
certainly had the opportunity to do this in the October 2018
term, but it didn’t happen.
Of course, that doesn’t mean that it won’t happen in the terms
ahead. In fact, some of the cases suggest that such limits might
be on the horizon. There were three important administrative
law decisions last term, and each could have important future
implications.
GUNDY V. UNITED STATES
There long has been a principle that Congress cannot delegate
its legislative power, including to administrative agencies. But
the Supreme Court last struck down federal laws as
unconstitutional on this basis in 1935 when it invalidated
provisions of the National Industrial Recovery Act as
impermissible delegations in Panama Refining Co. v.
Ryan and Schechter Poultry Corp. v. United States.
In the 80-plus years since Panama Oil and Schechter, not a
single federal law has been declared an impermissible
delegation of legislative power. Although these decisions have
not been expressly overruled, they never have been followed
either. All delegations, no matter how broad, have been upheld.
Although the court says that when Congress delegates its
legislative power it must provide criteria—“intelligible
principles”—to guide the agency’s exercise of discretion, all
delegations, even without any criteria, have been upheld.
Undoubtedly, this reflects a judicial judgment that broad
delegations are necessary in the complex modern world and that
the judiciary is ill-equipped to draw meaningful lines.
Reviving the nondelegation doctrine would be a powerful way
to impose significant limits on the administrative state. The
court had the chance to do so in Gundy v. United States.
The Sex Offender Registration and Notification Act makes it a
federal crime for a person to cross state lines if he or she is a

35. convicted sex offender who did not register as required by law.
The Act leaves open many questions, including the application
of the law to those convicted before the law was enacted. These
matters were left to the attorney general to resolve.
Herman Gundy, who was convicted under SORNA pursuant to
the attorney general’s application of the statute, argued that this
was an impermissible delegation of power to the executive
branch of government. In a 5-3 decision (it was argued before
Kavanaugh was confirmed), the court rejected Gundy’s
argument and again refused to revive the nondelegation
doctrine.
Justice Elena Kagan wrote the plurality opinion, joined by
Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia
Sotomayor. She declared this an “easy” case and explained that
the statute gives an intelligible principle to the attorney general.
She wrote that under the statute, “the attorney general must
apply SORNA’s registration requirements as soon as feasible to
offenders convicted before the statute’s enactment. That
delegation easily passes constitutional muster.” She said that
“(i)ndeed, if SORNA’s delegation is unconstitutional, then most
of government is unconstitutional.”
Justice Samuel A. Alito, was the fifth vote for the majority,
concurring in the judgment. He wrote a brief enigmatic opinion
stating: “If a majority of this court were willing to reconsider
the approach we have taken for the past 84 years, I would
support that effort. But because a majority is not willing to do
that, it would be freakish to single out the provision at issue
here for special treatment.”
Justice Gorsuch wrote a strong dissent, joined by Chief Justice
John G. Roberts Jr. and Justice Clarence Thomas. He said that
he “would not wait” to revive the nondelegation doctrine and
that SORNA should be declared unconstitutional as violating
that principle.
With Kavanaugh on the bench, it is easy to see five justices who
will be willing to revive the nondelegation doctrine and bring
about a dramatic change in administrative law. It is puzzling,

36. though, as to why Alito did not vote with the other
conservatives to create a 4-4 tie and have the case reargued with
Kavanaugh on the bench. That is exactly what happened last
term in Knick v. Township of Scott, Pennsylvania, which was
reargued and then decided 5-4 with the conservative justices in
the majority.
KISOR V. WILKIE
In Auer v. Robbins and Bowles v. Seminole Rock & Sand Co.,
the Supreme Court articulated the principle that courts should
defer to agencies’ reasonable readings of ambiguous
regulations. The court granted review in Kisor v. Wilkie on the
question of whether these cases should be overruled. Kagan,
writing for the court said, “We answer that question
no. Auer deference retains an important role in construing
agency regulations. But even as we uphold it, we reinforce its
limits.”
James Kisor, a Vietnam veteran who suffers post-traumatic
stress disorder, applied for benefits. The Veteran’s
Administration interpreted its own regulations to deny them.
The court used this case as the vehicle for considering whether
to overrule Auer deference.
Kagan’s opinion detailed the reasons for Auer deference. But
she also stressed that such deference is appropriate only if a
regulation is genuinely ambiguous, if the agency’s
interpretation of the rule is reasonable, and “if the character and
context of the agency interpretation entitles it to controlling
weight.” To meet the latter, the regulation must be the
“authoritative position” of the agency, within the scope of the
agency’s substantive expertise, and reflect the “fair and
considered judgment” of the agency.
Roberts was the fifth vote for the majority and wrote separately
to say he agrees that “overruling those precedents is not
warranted.” But he stressed that Auer deference is limited by
the requirements set forth in Kagan’s opinion.
Gorsuch wrote an opinion concurring in the judgment (because
he agreed with the result in this case), but that was clearly a

37. dissent as to overruling Auer deference. He declared: “It should
have been easy for the Court to say goodbye to Auer v. Robbins.
… A legion of academics, lower court judges, and Members of
this Court—even Auer’s author—has called on us to
abandon Auer. Yet today a bare majority flinches,
and Auer lives on. Still, today’s decision is more a stay of
execution than a pardon.”
Lurking in the background is how the court will deal with a
related doctrine—Chevron deference—which says that courts
should defer to agency interpretation of the statutes that they
enforce. (Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc.,1984). Indeed, in a footnote, Gorsuch said, “there
are serious questions, too, about whether that doctrine comports
with the APA and the Constitution.”
Indeed, there may be five votes in a future case to overrule, or
greatly limit, Chevron deference.
DEPARTMENT OF COMMERCE V. NEW YORK
For much of American history, through the 1950 census, there
was a question on the census forms about citizenship. From
1960 to 2000, the census form that went to everyone did not
include such a question, but a longer form that went to some
people asked about citizenship. The question was discontinued
out of concern that it would discourage noncitizens from
completing the form. An accurate enumeration of the population
is essential; much depends on it, ranging from apportionment of
the House of Representatives to the allotment of federal money.
Secretary of Commerce Wilbur Ross decided to include a
question about citizenship on the 2020 census. Federal district
courts enjoined this, both as violating the Administrative
Procedures Act and the Constitution’s requirement for an
accurate enumeration of the population. The Supreme Court
granted the government’s request for expedited review based on
the need for resolving the issue by June 30 to have census forms
printed.
In a 5-4 decision, the Supreme Court held that the United States
failed to offer a sufficient justification for its decision to meet

38. the requirements of the Administrative Procedures Act. Roberts
wrote for the court, joined by Justices Ginsburg, Breyer,
Sotomayor and Kagan. The court held that it did not violate the
Constitution or the Census Act to ask a question about
citizenship.
But the court concluded that “viewing the evidence as a whole,
we share the District Court’s conviction that the decision to
reinstate a citizenship question cannot be adequately explained
in terms of DOJ’s request for improved citizenship data to
better enforce the [Voting Rights Act].” As the court explained,
there was no evidence in the administrative record that asking
this question would enhance enforcing of the Voting Rights Act.
The court remanded the case to the agency to give it a chance to
justify the question. Subsequently, the Trump administration
decided not to proceed because of the need to get the census
forms printed.
The dissenters stressed the need for great deference to the
agency. Thomas, for example, said: “Our only role in this case
is to decide whether the Secretary complied with the law and
gave a reasoned explanation for his decision. The court
correctly answers these questions in the affirmative. That ought
to end our inquiry.”
It was interesting to see the conservative justices, who generally
want more judicial oversight of federal agencies, here argue for
much greater deference.
IN CONCLUSION
This, of course, was just the first term with Gorsuch and
Kavanaugh on the bench. There were no major changes in
administrative law. But perhaps they are to come.
Federal Crop Insurance Corp v. Merrill (1947)
332 U.S. 380
CERTIORARI TO THE SUPREME COURT OF IDAHO

39. Syllabus
1. The Federal Crop Insurance Corporation, a wholly
government owned corporation created by the Federal Crop
Insurance Act to insure producers of wheat against crop losses
due to unavoidable causes, including drought, promulgated and
published in the Federal Register regulations specifying the
conditions on which it would insure wheat crops, including a
provision making "spring wheat which has been reseeded on
winter wheat acreage" ineligible for insurance. Without actual
knowledge of this provision, a wheat grower applied to the
Corporation's local agent for insurance on his wheat crop,
informing the local agent that most of it was being reseeded on
winter wheat acreage, but this information was not included in
the written application. The Corporation accepted the
application subject to the terms of its regulations. Most of the
crop on the reseeded acreage was destroyed by drought.
Held: the Corporation is not liable for the loss on the reseeded
acreage. Pp. 381-386. [332 U.S. 381]
2. Having been published in the Federal Register, the Wheat
Crop Insurance Regulations are binding on all who seek to come
within the Federal Crop Insurance Act, regardless of lack of
actual knowledge of the regulations. P. 385.
67 Idaho 196, 174 P.2d 834, reversed.
The Supreme Court of Idaho affirmed a judgment against the
Federal Crop Insurance Corporation for loss of a wheat crop
which had been reseeded on winter wheat acreage. 67 Idaho

40. 196, 174 P.2d 834. This Court granted certiorari. 331 U.S.
798. Reversed, p. 386.
MR. JUSTICE FRANKFURTER delivered the opinion of the
Court.
Key excerpts from Justice Frankfurter’s Majority opinion:
“….
The case no doubt presents phases of hardship. We take for
granted that, on the basis of what they were told by the
Corporation's local agent, the respondents reasonably believed
that their entire crop was covered by petitioner's insurance.
And so we assume that recovery could be had against a private
insurance company. But the Corporation is not a private
insurance company. It is too late in the day to urge that the
Government is just another private litigant, for purposes of
charging it with liability, whenever it takes over a business
theretofore conducted by private enterprise or engages in
competition with private ventures.{1} Government is not partly
public or partly private, depending upon the governmental
pedigree of the type of a particular activity or the manner [332
U.S. 384] in which the Government conducts it. The
Government may carry on its operations through conventional
executive agencies or through corporate forms especially
created for defined ends. See Keifer & Keifer v. Reconstruction
Finance Corp., 306 U.S. 381, 390. Whatever the form in which
the Government functions, anyone entering into an arrangement
with the Government takes the risk of having accurately
ascertained that he who purports to act for the Government
stays within the bounds of his authority. The scope of this
authority may be explicitly defined by Congress or be limited
by delegated legislation, properly exercised through the
rulemaking power. And this is so even though, as here, the
agent himself may have been unaware of the limitations upon
his authority. See, e.g., Utah Power & Light Co. v. United

41. States, 243 U.S. 389, 409; United States v. Stewart, 311 U.S.
60, 70, and see generally In re Floyd Acceptances, 7 Wall. 666.
If the Federal Crop Insurance Act had, by explicit language,
prohibited the insurance of spring wheat which is reseeded on
winter wheat acreage, the ignorance of of such a restriction,
either by the respondents or the Corporation's agent, would be
immaterial, and recovery could not be had against the
Corporation for loss of such reseeded wheat. Congress could
hardly define the multitudinous details appropriate for the
business of crop insurance when the Government entered it.
Inevitably "the terms and conditions" upon which valid
governmental insurance can be had must be defined by the
agency acting for the Government. And so, Congress has
legislated in this instance, as in modern regulatory enactments it
so often does, by conferring the rulemaking power upon the
agency created for carrying out its policy. See § 516(b), 52
Stat. 72, 77, 7 U.S.C. § 1516(b). Just as everyone is charged
with knowledge of the United States Statutes at Large, [332
U.S. 385] Congress has provided that the appearance of rules
and regulations in the Federal Register gives legal notice of
their contents. 49 Stat. 502, 44 U.S.C. § 307.
Accordingly, the Wheat Crop Insurance Regulations were
binding on all who sought to come within the Federal Crop
Insurance Act, regardless of actual knowledge of what is in the
Regulations or of the hardship resulting from innocent
ignorance. The oft-quoted observation in Rock Island, Arkansas
& Louisiana R. Co. v. United States, 254 U.S. 141, 143, that
"Men must turn square corners when they deal with the
Government" does not reflect a callous outlook. It merely
expresses the duty of all courts to observe the conditions
defined by Congress for charging the public treasury. The
"terms and conditions" defined by the Corporation, under

42. authority of Congress, for creating liability on the part of the
Government preclude recovery for the loss of the reseeded
wheat no matter with what good reason the respondents thought
they had obtained insurance from the Government. Indeed, not
only do the Wheat Regulations limit the liability of the
Government as if they had been enacted by Congress directly,
but they were, in fact, incorporated by reference in the
application,{2} as specifically required by the Regulations.{3}
[332 U.S. 386]
….”
Securities and Exchange Commission v. Sloan (1978)
436 U.S. 103
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS
FOR THE SECOND CIRCUIT
Syllabus
The Securities and Exchange Commission (Commission) has the
authority under § 12(k) of the Securities Exchange Act of 1934
(Act) "summarily to suspend trading in any security . . . for a
period not exceeding ten days" if "in its opinion the public
interest and the protection of investors so require." Acting
pursuant to § 12(k) and its predecessor, the Commission issued
a series of summary 10-day orders continuously suspending
trading in the common stock of a certain corporation for over a
year. Respondent, who owned 13 shares of the stock and who
had engaged in substantial purchases and short sales of shares
of the stock, filed a petition pursuant to the Act in the Court of
Appeals for a review of the orders, contending, inter alia, that

43. the "tacking" of the 10-day summary suspension orders
exceeded the Commission's authority under § 12(k). Because
shortly after the suit was brought no suspension order remained
in effect and the Commission asserted that it had no plans to
issue such orders in the foreseeable future, the Commission
claimed that the case was moot. The court rejected that claim
and upheld respondent's position on the merits. In this Court,
the Commission contends that the facts on the record are
inadequate to allow a proper resolution of the mootness issue,
and that, in any event, it has the authority to issue consecutive
10-day summary suspension orders.
Held:
1. The case is not moot, since it is "capable of repetition, yet
evading review," Southern Pacific Terminal Co. v. ICC, 219
U.S. 498, 515. Effective judicial review is precluded during the
life of the orders because a series of consecutive suspension
orders may last no more than 20 days. In view of the numerous
violations ascribed to the corporation involved, there is a
reasonable probability that its stock will again be subjected to
consecutive summary suspension orders; thus, there is a
"reasonable expectation that the same complaining party" will
be subjected to the same action again. Cf. Weinstein v.
Bradford, 423 U.S. 147. Pp. 108-110.
2. The Commission does not have the authority under § 12(k),
based upon a single set of circumstances, to issue a series of
summary orders that would suspend trading in a stock beyond
the initial 10-day period, [436 U.S. 104] even though the
Commission periodically redetermines that such action is
required by "the public interest" and for "the protection of
investors." Pp. 110-123.

44. (a) The language of the statute establishes the 10-day period as
the maximum time during which stock trading can be suspended
for any single set of circumstances. Pp. 111-112.
(b) In view of congressional recognition in other sections of the
Act that any long-term sanctions or continuation of summary
restrictions must be accompanied by notice and an opportunity
for a hearing, the absence of any provision in § 12(k) for
extending summary suspensions beyond the initial 10-day
period must be taken as a clear indication that extended
summary restrictions are not authorized under § 12(k). Pp. 112-
114.
(c) The statutory pattern leaves little doubt that § 12(k) is
designed to empower the Commission to prepare to deploy such
other remedies as injunctive relief or a suspension or revocation
of security registration, not to empower the Commission to
reissue a summary order absent the discovery of a new
manipulative scheme. Pp. 114-115.
(d) Those other remedies are not as unavailable as the
Commission claims, as is evidenced by this very case, where the
Commission during the first series of suspension orders actually
sought an injunction against the corporation involved and
certain of its principals, and, during the second series of
suspensions, approved the filing of an injunction action against
its management. Moreover, though the Commission contends
that the suspension of trading is necessary for the dissemination
in the marketplace of information about manipulative schemes,
the Commission is at liberty to reveal such information at the
end of the 10-day period and let investors make their own

45. judgments. And in any event, the mere claim that a broad
summary suspension power is necessary cannot persuade the
Court to read § 12(k) more broadly than its language and the
statutory scheme reasonably permit. Pp. 115-117.
(e) Though the Commission's view that the Act authorizes
successive suspension orders may be entitled to deference, that
consideration cannot overcome the clear contrary indications of
the statute itself, especially when the Commission has not
accompanied its administrative construction with a
contemporaneous well reasoned explanation of its action.
Adamo Wrecking Co. v. United States, 434 U.S. 275, 287-288,
n. 5. Pp. 117-119.
(f) There is no convincing indication that Congress has
approved the Commission's construction of the Act. Pp. 119-
123.
547 F.2d 152, affirmed. [436 U.S. 105]
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, and
STEVENS, JJ., joined. BRENNAN, J., filed an opinion
concurring in the judgment, in which MARSHALL, J., joined,
post, p. 123. BLACKMUN, J., filed an opinion concurring in
the judgment, post, p. 126.
EXCERPTS FROM MAJORITY OPINION BY JUSTICE
REHNQUIST:
“….
[This section concerned whether the court should hear the case

46. even thought the suspension was lifted, a matter of standing for
Sloan. MH]
The court then decided that the statutes which authorized
summary suspensions -- § 12(k) and its predecessors -- did not
empower the Commission to issue successive orders to curtail
trading in a security for a period beyond the initial 10-day
period. 547 F.2d at 157-158. We granted certiorari,
specifically directing the attention of the parties to the question
of mootness, 434 U.S. 901 (1977), to which we now turn.
II
Respondent argues that this case is not moot because, as the
Court of Appeals observed, it is "capable of repetition, yet
evading review."{3} The Commission, on the other hand, does
not urge that the case is demonstrably moot, but rather that
there simply are not enough facts on the record to allow a
proper determination of mootness. It argues that there is no
"reasonable expectation" that respondent will be harmed by
further suspensions because,
"the investing public now ha[ving] been apprised of the relevant
facts, the concealment of which had threatened to disrupt the
market in CJL stock, there is no reason to believe that it will be
necessary to suspend trading again."
Brief for Petitioner 15, quoting from Pet. for Cert. 12 n. 7. Cf.
Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The
Commission concedes, however, that respondent, in his capacity
as a diversified investor, might be harmed in the future by the
suspension of some other [436 U.S. 109] security which he
owns. But it further contends that respondent has not provided
enough data about the number or type of securities in his
portfolio to enable the Court to determine whether there is a

47. "reasonable" likelihood that any of those securities will be
subjected to consecutive summary suspension orders.{4}
Contrary to the Commission's contention, we think even on the
record presently before us this case falls squarely within the
general principle first enunciated in Southern Pacific Terminal
Co. v. ICC, supra, and further clarified in Weinstein v.
Bradford, supra, that, even in the absence of a class action, a
case is not moot when
(1) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there
was a reasonable expectation that the same complaining party
would be subjected to the same action again.
….
In sum, had Congress intended the Commission to have the
power to summarily suspend trading virtually indefinitely, we
expect that it could and would have authorized it more clearly
than it did in § 12(k). The sweeping nature of that power
supports this expectation. The absence of any truly persuasive
legislative history to support the Commission's view, [436 U.S.
123] and the entire statutory scheme suggesting that, in fact, the
Commission is not so empowered, reinforce our conclusion that
the Court of Appeals was correct in concluding no such power
exists.
….”
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