Category Archives: Judicial

The Supreme Court and Immigration

The Statue of Liberty stands as a symbol that this nation was built on immigration.  This past term (and apparently this upcoming term) immigration was a significant part of the Supreme Court docket.  Of the eight cases involving immigration or the border, the Supreme Court issued decisions in five, sent one back to the lower courts (in light of one of the four decisions), and set two for re-argument in the fall (as both were argued before Justice Gorsuch joined the bench, the implication is that there was a 4-4 split or that the majority lacked a consensus on the legal theory for the result).  In addition, the Supreme Court is going to hear argument on the travel ban.

Going in chronological order, at the end of May, the Supreme Court issued a decision on the crimes that trigger deportation — narrowly interpreting the statute to limit the state offenses that trigger deportation.  The decision involved charges of sexual abuse against minors with the court defining minor as under 16 and requiring that the state offense be limited to minors under sixteen.  On the cases that were decided, as discussed in an earlier post, the Supreme Court struck down the law governing birth citizenship when a child is born abroad to parents with split citizenship (i.e. one is a U.S. citizen and the other is not) because the law discriminated based on the gender of the U.S. citizen.

In the next to last week of the term, the Supreme Court issued three more decisions.  The first case — involving a challenge to immigrants arrested after 9/11 — technically was not about immigration but about the right to sue the government and government official for civil rights violations.  While there is a federal statute authorizing individuals to sue state officials, there is no such statute for civil rights violations by federal officials.  While the Supreme Court has authorized such suits in a limited number of circumstances, the Supreme Court has been reluctant to expand that right.  The Supreme Court found that the claim in the most recent case were not similar to the previously recognized claims and decided that it was up to Congress to decide whether to enact a statute authorizing such claims.  That decision also led to the decision to send the second civil rights case (involving a cross-border shooting) back to the lower court to review whether it was the type of claim that could be brought.  (The lower court had originally decided the case on the issue of whether it was a civil rights violation.  In sending the case back, the Supreme Court raised doubts about some of that reasoning.) Continue Reading...

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Free Speech Uber Alles

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.) Continue Reading...

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Supreme Court 2016-17-Two Weeks Left

One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend.  (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible.  Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.)  That will make for a very packed last two weeks.  It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term.  For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term.  This year, they have only heard 64 cases.  The last two weeks of the terms have seen the court issuing between 9 and 17 opinions.  This year, we still have 17 cases waiting for opinions.  (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)

Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks.  In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22).  But last second “non-substantive” edits that delays the Court’s printshop from having all of  the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term.  (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues.  In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases.  Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case.  In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)

As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term.  Of course, the number of outstanding opinions does make it a little bit harder this year.  The general rule of thumb is that the Supreme Court tries to keep the workload balanced.  With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions.  Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month.  At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch).  If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions.  If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions.  The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around. Continue Reading...

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Birth Citizenship — Supreme Court sends issue back to Congress

There are two ways that a person can be a natural born U.S. citizen.  First, under the Fourteenth Amendment, they can be born in the U.S.  Second, they can be born to U.S. citizens.  For this second category, Congress has established some conditions that must be met related to how long the U.S. citizen parent has resided in the U.S.

Looking at this second categories, there are eight possible combinations of three crucial factors — is the mother a U.S. citizen; is the father a U.S. citizen; and are the parents married.  (Actually, there are six, if neither parent is a U.S. citizen, the child can’t inherit citizenship from her parents.)  Having six different combinations in which at least one parent is a U.S. citizen, Congress has enacted different rules based on which parent is a U.S. citizen.  In particular, an unwed U.S. citizen mother has to spend less time in the U.S. than an unwed citizen father or married couples in which one member is a U.S. citizen.  Earlier this week, the Supreme Court issued an opinion on the constitutionality of these rules.

The case involved a man facing deportation.  That man’s father was a U.S. citizen but had left the U.S. twenty days before meeting the statutory requirements for conveying citizenship to his children.  As such, even though the father had returned to the U.S. with his family (including the person seeking citizenship in this case), the man was not entitled to automatic citizenship and — because he had not sought naturalization — could be deported. Continue Reading...

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Supreme Court 2016-17: Forthcoming Opinion Watch

Like much in government (including the school-year that many of us remember from growing up), the Supreme Court follows a cyclical calendar.  Beginning with the first Monday in October, the Supreme Court has seven argument sessions each year.  Each session is two weeks followed by a recess.  Five of these recesses are for two weeks, but the recesses taken over Christmas and after the January arguments are usually for four weeks.  During these approximately thirty weeks, the Supreme Court is engaged in three basic tasks:  1) reviewing applications from parties that want their cases heard by the Supreme Court; 2) preparing for and holding arguments in those cases that have been accepted; and 3) writing opinions.  Because the task of preparing for arguments (reading the written arguments of counsel and reviewing the record from the trial court to get an idea of the “facts” underlying to which the law has to be applied) is time consuming, opinions tend to slowly dribble out during these first thirty weeks.  As a result, when the arguments end in late April (or early May depending upon the calendar), there are typically a significant number of cases still waiting for opinions.

During this year’s term, as is not unusual, there were a handful of opinions issued in December and January (a total of six) with the number going up slightly during February, March, and April (a total of twenty-one so far with the possibility of several more on Monday before the Supreme Court leaves for its final recess.  However, with arguments for the year having wrapped up this past Wednesday, there are currently thirty-eight cases in which opinions have not yet been issued.  While there are some exceptions to the rule, by this time of year, the Supreme Court has issued opinions in most of the cases heard last Fall.  During the argument portion of the year, it takes between two and six months to get an opinion.  The simple cases in which there is unanimous agreement among the Justices (which represent about half of the cases) tend to come quickly.  When the Justices disagree, the process stretches out as the Justices in the minority draft opinions responding to the majority opinion, and the majority opinion then makes changes to address the issues raised by the minority (and so on until everyone believes that no further changes are needed).    The bottom line is that, at this point of the year, opinions have been issued for all of the October arguments, for about two-thirds of the November and December arguments, for about half of the January and February arguments, and for none of the March and April arguments.  The expectation, especially for the remaining cases from November and December, is that the delay represents some significant disagreement in the early cases.

Before going into the highlights of what is left to come down — either on Monday or more likely between mid-May and the end of June when the Supreme Court returns from its last recess — one point to make.  Justice Gorsuch only participated in the arguments for this last two-week session.  The tradition is that a Justice does not vote in cases heard before the Justice joined the Supreme Court.  However, it is not unusual to schedule a case for re-argument if the a Justice joins the Court after argument and the vote of the eight Justices who heard the case is split 4-4. Continue Reading...

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The Supreme Court and the Filibuster

This week has the potential to be a significant week in Senate history.  Over the past two presidencies, there was a rise in the use of the filibuster to block executive branch and lower court nominees.  During the George W. Bush presidency, there were enough Democratic and Republican senators willing to work out a deal in which the Democratic senators agreed to vote for cloture on most nominations and the Republicans agreed not to invoke the “nuclear option” (exempting such nominations from the three-fifth’s rule for cloture by the vote of a majority of the Senate).  During the Barack Obama presidency, there were not enough Republican senators willing to make such a deal and the Democrats were forced to go with the nuclear option on such executive branch and lower court nominees.  However, the normal cloture rules were left in place for Supreme Court nominees.

As a starting point, here is the tentative schedule for the week.  First, on Monday, the Judiciary Committee is scheduled to vote on the nomination of Neal Gorsuch.  Right now, it appears likely that the committee will approve that nomination by a majority vote.  Assuming that the Committee sends its report on that nomination to the Senate on Monday, that would trigger Rule XXXI which provides that (except by unanimous consent which will not be given) the Senate may not vote on a nomination on the same day that the nomination is reported to the full Senate.   The Republicans will then attempt to call the matter up for a vote by unanimous consent on Tuesday.  At least one Democrat will object, and the Republicans will file a cloture motion.  Under Rule XXII, that motion will probably come up for a vote on Thursday and would take sixty votes to pass.  Based on current whip counts, those sixty votes will not be there.  If somehow, the Republicans get the sixty vote or invoke the nuclear option, Rule XXII would permit thirty more hours of debate resulting in a vote between Friday and Monday the 10th.  (Technically, the Easter state work session is currently scheduled to start on the 10th and go through the 21st.  The last two weeks of argument in this year’s Supreme Court term are the weeks of April 17 and April 24.  So if Judge Gorsuch is confirmed this week, he could sit on the last thirteen arguments of this term.  If the final vote takes place after April 21, Judge Gorsuch will not sit on any argument until the next term beginning in October.)

Assuming that the cloture vote goes as currently anticipated, the Republicans will have three options.  Option number one would be to use the Easter recess to put pressure on vulnerable Democratic senators.  Right now, the two most vulnerable Democratic senators (Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota) seem likely to vote for cloture, but there are other Democratic senators from other states that Trump won by wide margins.    While there are ten Democratic senators on the 2018 ballot from states that Trump won (and Maine’s independent Senator is not necessarily going to join the Democrats on this issue), half of those senators are from swing states.  The only two other Senators who come from states that were not too close to call in 2016 are Senator McCaskill from Missouri and Senator Donnelly from Indiana.  Unless the Democratic senators hear from party activists that party activists do not really care about this issue, the vote is unlikely to change much after the recess.  On the other hand, the Republican leadership would be in a stronger position to invoke the nuclear option after the recess.  (The more moderate members of the Republican caucus might believe that the Democrats should at least be given some time to debate and make their case before the nuclear option is invoked.) Continue Reading...

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The Week in Review

There is an old saying that a week is a lifetime in politics.  In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching).  It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.

The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act.   There are several significant aspects to this non-event.

First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years.  While Trump may have been a great negotiator, it is very easy to reach a two-sided deal.  (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions.  He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board.  This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy.  At that point, it’s not really about negotiating but selling. Continue Reading...

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The Never-ending Battle — Redistricting 2011

One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate.  The same is unfortunately true of disputes over the redistricting process.   We are now almost six years into the current ten-year cycle of district lines.  The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again.  You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over.  Unfortunately, we are not at that point yet.

This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission).  This week’s decision involved the Virginia House and whether the  drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment.  The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race.  Such a challenge focuses on particular district lines.

In this case, the challenges concerned twelve districts.  The original three judge panel found that race was only the predominate reason for one of the twelve districts.  In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations.  While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason. Continue Reading...

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Transgender Rights and the Supreme Court (UPDATED — 3/6/17)

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.   (Updated 3/6/17 — This morning, the Supreme Court sent the case 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.

Because the Fourth Circuit decision relied on a judicial doctrine (Auer deference) that dictates that courts should defer to an agency’s interpretation of its own regulation, it was dependent on the agency not changing that interpretation.  When the Supreme Court took the case in October, the Department still interpreted the regulation consistent with the student’s position in this case.  After Trump won the election, it was unclear whether the new administration would change its interpretation of the regulation. Continue Reading...

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Judge Gorsuch and Same Sex Bathrooms

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.

Current case law supports the ability to operate in this way through three doctrines.  First is the current limited version of the non-delegation doctrine.  Back before the New Deal, the courts regularly struck down regulations on the theory that Congress had improperly delegated legislative authority to the executive branch.  Current law permits such delegation as long as the statute gives sufficient guidance to the administrative agency.  While sufficient is somewhat in the eye of the beholder, most courts only require very broad guidance. Continue Reading...

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