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Category Archives: Judicial
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.
In recent years, the Supreme Court has had its version of an “election rule.” The essence of this rule is that the Supreme Court does not like last second changes to the election process. Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules. Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.
The Supreme Court recessed for the summer after their last conference (the wrap-up conference) on Monday afternoon. After the order from that conference was issued on Tuesday morning, the Supreme Court has filled twenty-nine of the thirty argument slots for the fall. (A little below average as they normally have some carry-over for the January argument session. )
Monday featured three significant opinions — the Texas abortion case, Governor McDonnell’s corruption case, and an interesting case involving gun control and domestic violence. These cases saw some interesting combinations of Justices as very different judicial philosophies combine to reach the same result.
On Thursday, in a rather surprising turn of events, the Supreme Court upheld the admission policy of the University of Texas at Austin against a complaint that it unconstitutionally favored African-Americans. This decision is surprising both because of the outcome, but also because of who wrote the opinion.
The basics of admission at UT is that the first cut of admissions comes from the “top 10%” program. If you go to high school in Texas and finish in the top 10% of your school and want to go to UT, you are automatically accepted (actually due to the cap on the number of admissions under this program, it is now closer to a top 7% program). This part of the admissions process fills about 75% of the slots. If you are home schooled, or out-of-state, or finish outside the top ten percent (whether that is 4th out of a graduation class of 30 or 150th out of a graduating class of 160), you have to compete based on a combination of your academic index (your GPA plus SAT score) and your “personal achievement index” (a score based on the admission essay, extracurricular activities, demonstrated leadership, and other factors with race being one of the other factors). Because race can impact the personal achievement factor, a white student who did not qualify under the top 10% program challenged her failure to make it under this second admissions process, claiming that it violated the equal protection clause of the fourteenth amendment.
It has been four months since the untimely death of Justice Antonin Scalia. Over that four months, we have gotten some proof about how important a full Supreme Court is to a functioning court. Today, we got more reminders.
In March, we learned that, in two cases heard before Justice Scalia’s death, the remaining eight justices were deadlocked 4-4, meaning that the decision of the lower court stood. One of these two cases involved a First Amendment challenge to mandatory union dues for public employees. The petitioners (the parties that lost in the lower court) in both cases have asked for rehearing, and the Supreme Court has not yet decided whether to grant rehearing. Today, we learned that two more cases had ended in a 4-4 tie. One of the two was a December case involving the jurisdiction of tribal court. The other (and the first deadlocked case argued after Justice Scalia’s death) was United States v. Texas — the immigration policy case. (Additionally, today saw a decision in the Affirmative Action case which I will discuss later this weekend.)
While the Supreme Court does not have a hard and fast rule on when it recesses for the summer, traditionally the Supreme Court tries to issue opinions in all the outstanding cases before July 4. As a result, the last part of June typically sees the media remembering that we have a Supreme Court as major decisions pour out of the court in a flood during this time of year. It’s not that the Justices intentionally save the major cases until the end, but rather that these cases are the ones that are most likely to go back and forth with drafts and counter-drafts until the deadline for resolving the cases hits.
This year, there are thirteen cases left to be decided. The Supreme Court has actually been making decent progress over the past month — having gone to two opinion days per week two weeks ago and issuing eleven opinions over the past two weeks. While the Supreme Court will not announce additional opinion days for this week until after issuing opinions on Monday, it is likely that there will be at least one more opinion day (and maybe two more opinion days) later this week. Of the remaining thirteen cases, three or four of them have major political implications.
As noted in Part One, the Supreme Court had two cases involving Puerto Rico this term. The first, decided, last Thursday was the more philosophical of the two cases — focusing on Puerto Rico’s status under the Constitution. The ink was barely dry on that opinion when the Supreme Court issued the second opinion — dealing with the more immediately practical question of how bankruptcy law applies to Puerto Rico’s debt.
As a general matter, the Constitution gives Congress the power to enact a “uniform” law governing bankruptcy — a process that allows private individuals, businesses, and even government to restructure (and in some cases partially reduce) their debts. As the fact that it is one of the enumerated powers in the original text of the Constitution shows, bankruptcy is not a new concept and predates the United States. The Bankruptcy Code (Title 11 of the United States Code) is divided into chapters with different chapters applying to different entities and the circumstances of that entity — one for businesses that just want to wind up their affairs, one for businesses that want to try to continue, one for private individuals, and one (which applies here) governing the debts of municipalities (Chapter 9).
This year, in a somewhat unusual turn of events, the status of Puerto Rico has been a significant part of national politics — at least at the actual level of governing. Both the Supreme Court and Congress are considering Puerto Rico’s public debt. Congress with legislation to fix it; the Supreme Court looking at the legal effect of Puerto Rico’s own efforts to fix it. While technically these two are not directly related, the Supreme Court is still working on its decision on its case; and nobody knows whether the Supreme Court is keeping one eye on what is working through Congress in writing that opinion. (The opinion is likely being written by Justice Thomas or Justice Alito).
The Supreme Court also had under review a second case involving Puerto Rico. Technically, the case was about double jeopardy — the right of a person not to face the same charges twice. However, there are some exceptions to this general rule and one of them involves what is called the “dual sovereign” exception. Stripped to its bare bones, this exception recognizes that — under the Constitution — states and tribes retain some vestige of sovereignty. Because of this legal separateness, two states or two tribes or a state and the federal government can file similar charges against the same individual arising from the same incident without running afoul of the ban on double jeopardy. However, because a territory does not have the same vestiges of sovereignty, it violates double jeopardy for a territory and the federal government to both file similar charges. (Similarly, a city within a state and that state may not both file similar charges.) In the pending case, both the United States and Puerto Rico had filed charges. The issue presented was whether Puerto Rico’s current status made it more like a state than a territory for double jeopardy purposes.
This week at the United States Supreme Court saw eight opinions in the argued cases (leaving 28 cases still to be decided). The actual opinions raise questions about the ability of the Supreme Court to function with only eight justices. Since the actual discussions between justices occur in private, it is hard to tell whether the decisions reflect divisions on the merits or just a tendency to only decide what absolutely needs to be decided. However, in several cases this week, the Supreme Court — having taken review on a broad issue — issued a very narrow decision sending the case back to the lower court to re-examine the broad issue.