While Attention Was on Oral Argument in Trump v. Anderson, the Supreme Court Issued Two Opinions

The oral argument in Trump v. Anderson was not the only activity at the Supreme Court yesterday. The Court also issued opinions in two argued cases—the second and third decisions to be released this term.

In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, a unanimous Court held that a consumer may sue the U.S. Department of Agriculture for money damages under the Fair Credit Reporting Act because the Act waived the federal government's sovereign immunity. Justice Gorsuch wrote for the Court.

In Murray v. UBS Securities, the Court held that under the whistleblower protection provisions of the Sarbanes-Oxley Act, a whistleblower challenging an employer's adverse employment action must prove that his protected whistleblowing activity was a contributing factor in the employer's unfavorable personnel action, but does not have to prove that the employer acted with "retaliatory intent." Justice Sotomayor wrote for the Court. Justice Alito filed a separate concurring opinion joined by Justice Barrett.

This seems like a a slow pace for the issuance of opinions, but not as slow as last year, when the Court had only issued one opinion in an argued case. In OT 2021, by contrast, the Court had issued ten opinions in argued cases, though several of those (WWH v. Jackson, US v. Texas, Biden v. Missouri, and NFIB v. OSHA) had been heard on an expedited basis. Pre-Covid, at the start of OT2019, the Court had also only issued three opinions in argued cases at this point (though it had also decided two cases summarily with per curiam opinions).

We may get additional opinions later this month.