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Category Archives: Judicial
At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students. After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration.
As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females. The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender. At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender. When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required. When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation. In taking the case, the U.S. Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.
While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority. Current case law is mostly bounded in the reality of current politics. Some conservatives want courts to disrupt the way things currently operate.
Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity. Congress then delegates responsibility for filling in the details to some department or agency. To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives). Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs. The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.
On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia. This nomination creates a significant question for Senate Democrats on how to proceed.
On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment: The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W. While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia. It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia. In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision. As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died. (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.) And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths. Given this reality, the question is how hard to fight this nomination.
The big court story of 2016 was the February death of Justice Antonin Scalia. In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama. However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general. The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess). By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.
At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court. A win this past November would have led to a solid Democratic majority for the next two or three decades. However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues. As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners. (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.) At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet. The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters. Democratic voters may soon suffer for this failure of leadership.
In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree. By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular. Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies. The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices. (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years. Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)
The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics. To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much. However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election. This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split). Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines. That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review. While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.
When Justice Antonin Scalia died, Senate Republicans announced that they would not hold hearings because of their belief — not supported by any precedent — that a lame duck president should not get to fill a vacancy during his last year in office. Earlier this week, in a classic gaffe (i.e. he mistakenly told the truth), Senator John McCain announced that Senate Republicans intend to block any nominee that President Hillary Clinton might put forward. While Senator McCain has attempted to walk back this statement, he revealed what many of us have known to be true all along — the Republicans do not have any problem with any specific nominee that President Obama has or that President Clinton might put forward; there problem is with losing the majority on the Supreme Court.
If the Republicans can keep their current Senate majority, the process of blocking all nominees is simple — although with potential political consequences. They simply vote down any nominee. Their problem is if, as current polls suggest, the Democrats regain the Senate majority for the next two years. If that happens, we are potentially looking at the next conflict over the filibuster.
On Monday, the Supreme Court will meet in what is commonly called “The Long Conference” — reflecting the fact that its been three months since the Justices last met to consider petitions for review (officially petitions for a writ of certiorari) creating a long list of cases to consider. Maybe Monday afternoon, maybe later in the week, the Supreme Court will announce which cases it will hear arguments on. The following Monday (October 3), the new term officially begins and the Supreme Court will issue an order list which will, at the very least, contain a long list of the cases that it has decided not to review on the merits.
Predicting which cases the Supreme Court will actually take is almost impossible. The Supreme Court receives almost 10,000 petitions per year but only grants full review on about 70-80 cases. Of course, a lot of the petitions are clearly long shots — many written by the petitioners themselves — that simply assert error in the lower courts without giving any reason why the case matters to anybody other than the petitioner. But even after eliminating the chaff, there are way more cases that raise significant issues than the Supreme Court will take.
As noted in Part One of this series, the Supreme Court has not yet announced its December argument schedule. However, they have eleven cases that they have accepted for review and six argument dates in December. While it is possible that the Supreme Court might postpone some of these cases to January, there are enough available argument slots in December to hear all of the cases currently on the argument docket.
Looking at the cases accepted, there are the three cases from last January that have been postponed to December (discussed more below). In addition from the cases accepted in June, there are two re-districting cases, an intellectual property case, a bankruptcy case, a capital punishment case, an anti-trust case involving credit cards, an immigration case, and a federal criminal case. The contentiousness of these eleven cases might result in some of these cases being pushed even further back in the hope that a ninth justice might arrive this term.
Officially, the annual term of the Supreme Court begins on the first Monday in October. This year, due to Rosh Hashanah falling on that date, arguments for the year will begin on October 4. Earlier this summer, the Supreme Court released the argument calendar for October (eight cases over three days) and November (ten arguments over six days). As noted in Part One, the Supreme Court seems to be postponing the cases most likely to be decided 4-4 for as long as possible in the hopes of getting a ninth Justice soon. That does not mean, however, that there are no cases of potential significance in these two months.
Time for the annual Supreme Court preview. When we last left the eight, they had punted several significant cases on a 4-4 tie or with very narrow decisions that avoided the main issue in the case. They had also only granted review on twenty-nine cases for the fall. The delay in filling the vacancy was clearly causing problems.
Summer at the Supreme Court tends to be quiet. Most of the summer work is internal. Parties file the briefs for the fall cases and petitions for review on new cases and responses to those petitions. The justices and law clerks spend most of their time reading these materials with the clerks writing memorandums summarizing the petitions for the justices and discussing the cases to be heard in the fall with their own justice. The big actions during the summer are decisions on stay applications and the release of the argument schedule for the fall.