Category Archives: Judicial

Judicial Roundup

By tmess2 | Published November 26, 2023

November has seen two big developments in the courts that are of political interest which unfortunately can be characterized as the bad and the ugly.

The bad comes to us from the Eighth Circuit.  Traditionally, the Eighth Circuit has been somewhat on the conservative side, but mostly within the mainstream of traditional conservative thought.  It’s current compositions (by appointing president) is one from Daddy Bush, five from Shrub, one from Obama, and four from Trump.  This past week, a panel of the Eighth Circuit issued an opinion in Arkansas State Conference of the NAACP vs. Arkansas Board of Apportionment.  If you could not tell from the title, this case is a challenge to redistricting in Arkansas under the Voting Rights Act.  The trial judge in the case was a Trump appointee, and, based on a theory currently making its way among the far right, the trial judge dismissed the case on the theory that only the Attorney General can bring a case under Section 2.  In an opinion written by one of the Trump appointees, the panel adopted that theory.  The Trump appointee was joined by a Shrub appointee.  The third judge (a Shrub appointee) dissented.

The basis of the theory of the majority is textualism gone amok.  Technically, there is no express provision in the Voting Rights Act saying that private individuals can challenge district lines.  And, if this were a case of first impression involving just Section 2 and Section 2 had been written today, this argument might make sense.  Currently, courts are very reluctant to infer new causes of action. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 3

By tmess2 | Published September 24, 2023

In this last part of our Supreme Court preview, the topic shifts from the cases that will definitely be heard this year to the cases in the pipeline.  The U.S. Supreme Court receives around 5,000 petitions for review every year, but they only grant review in approximately 60 cases per year.  Now, some of those 5,000 petitions are clearly frivolous and have zero chance of being granted.  But, even eliminating the clearly delusional petitions, that translates into something like one petition out of seventy petitions being accepted for review.  So any discussion of what cases might get full review is very, very speculative.

Now, we know that some cases will technically be heard.  There is a very limited category of cases that have direct appeals to the U.S.  Supreme Court.  But that does not mean that the Supreme Court grants full merits briefing and argument in all of those cases.  Instead, the U.S. Supreme Court often simply issues a short opinion or order affirming the trial court decision based on the initial pleadings of the parties.  For example, we know that Alabama wants the Supreme Court to take another look at their redistricting case now that the three-judge panel has held that their second attempt at redistricting failed to remedy the previous violation.  The easy decision of the U.S. Supreme Court is to reject this effort, but they might choose to wade back into this area.

So what seems likely?  The first thing that is almost certainly the case is that the U.S. Supreme Court will take a good chunk of cases from the Fifth Circuit and the Ninth Circuit.  There are two reasons for this.  First, these circuits are just big.  The Ninth Circuit is both big geographically and in population (including the states of Arizona, California, Oregon, and Washington).  The Fifth is not as big geographically but it does include Texas.  Second, both courts are somewhat politically lopsided which has made them the “go to” circuits for people who are shopping for a friendly court for an ideological case.  So the Fifth Circuit is likely to issue opinions which are too conservative even for this bunch of justices, and the Ninth Circuit is likely to issue opinions which are too liberal for this Supreme Court. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 2

By tmess2 | Published September 17, 2023

Last week, we took a look at the cases that are set for argument in October and November.  This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date.  These cases will probably be heard in December or January.

The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law.  As such, every case is important to some groups of people.  But the focus in these posts are on those cases which could have a political impact.

First on this list is Muldrow.  This case involves Title VII — the law barring discrimination based on race and gender in employment.  The issue in this case is “transfers.”  Basically, by transfer, we are talking about the reassignment of employees from one job to another job.  Generally, Title VII only applies to “adverse” actions.  As such, the issue is what type of damage/impact does the employee have to show.  At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination.   Obviously, there are other things that impact what qualifies as a desirable job.  Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad.  Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position.   Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII.  From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 1

By tmess2 | Published September 10, 2023

We are three weeks away from the First Monday in October which means that the Supreme Court will soon be back in session.  Putting to the side the continued questions about the ethical failings of certain ultra-conservative justices (who unfortunately would never be convicted by the Senate even in the unlikely event that the more ethically-challenged Republican caucus in the House would actually allow articles of impeachment to pass), that means time to look ahead to the politically-significant cases on this year’s docket.

For a brief refresher, during its annual term, the U.S. Supreme Court sits in seven argument sessions.  Each of these argument sessions lasts for two weeks.  After five of these argument sessions, the U.S. Supreme Court takes a two-week break (with longer breaks over the holidays and after the January argument session).   Typically, for ease of convenience, the sessions are referred to as the October, November, December, January, February, March, and April sessions even though some sessions will begin in one month and conclude in another month (like the November session this year which will begin on October 30).  During the argument session, the Supreme Court hears oral arguments on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, that day is skipped.  There is no firm rule (as the Supreme Court will make adjustments if the docket requires it), but a “full” docket will have two arguments in the morning on each day.  Subject to adjustment if a third party (usually the Solicitor General if a case involves a federal statute) is permitted to argue, the party that lost below gets thirty minutes to argue and answer questions followed by thirty minutes for the party that won below followed by a brief rebuttal argument by the party that lost below.

On the Friday before the argument session, the justices meet to review pending petitions for review and to finalize any opinions to be released the following week.  There are similar conferences on the Fridays on the weeks in which there are arguments at which the justices also discuss the arguments that were heard that week and take an initial vote on those cases which is used to assign a justice to write an opinion.  On the Mondays of argument week (and the Monday after the argument week), the Supreme Court releases on order list announcing the decision on pending petitions for review.   In the early part of the term, there might be a separate list announcing the cases accepted for review on Friday to give the parties additional time to start preparing their briefs (the written arguments on the case) as the time schedule gets rather tight for completing the briefs before the oral argument.  Because of those time limits on the written briefs, the January argument session is effectively the cut-off date for a case being heard during the term.  If review is granted after January, the case is held for the following term.  Thus, the cases that we are about to discuss are those that the Supreme Court granted review on between February and June.  (On rare occasions, as it did for one case this year, the Supreme Court may add a case during its summer recess, but the norm is that — other than emergency matters — the period between July 1 and October 1 is quiet.)  The cases that they will accept (some of which may be discussed in Part III of this preview) in the next several weeks will be argued in the second half of this term. Continue Reading...

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Candidate Trump — Felon Ballot Access Restrictions and the Fourteenth Amendment

By tmess2 | Published August 27, 2023

We are heading into uncharted waters.  A major political party has become a cult in thrall to a person who may not be eligible to run for president (or at least barred from the ballot in several states) who insists that he should be the nominee in 2024.  Add to that a martyr complex by the true believers who have taken over many state parties, and we are heading into potential chaos for the Fall of 2024.

Of course, one of the complexities is that the national election for president is when the electoral college meets and votes and sends those votes to Congress to be counted.  Up until that Wednesday in December, we have fifty-one elections for presidential electors and more elections for delegates to the nominating convention.  Each of the jurisdictions (states and territories) involved in these elections have different rules and procedures.

Having said that, there are several general things that are consistent from state to state.  First, for the general elections, the parties certify the name of their presidential and vice-presidential candidate in late August or early September.   Second, there is a state election authority which receives and processes the candidate paperwork for state and federal candidates.  For the most part, these officials rarely refuse candidate filings, but they are tasked with determining whether the filing to be on the ballot is complete and shows that the candidate is eligible to run under state law.  Third, decisions on whether a candidate qualifies to be on the ballot is subject to some form of judicial review.  But, assuming that the election authority finds that a candidate is eligible to run, the different states have different rules on who can challenge that determination.  In all, or almost every state, the opposing candidates have the right to bring such a case, but the rules as to who else has that right differs from state to state.  Fourth, if, for some reason, a party’s nominee has to be replaced on the ballot, it generally falls on the state party to name a replacement.  Fifth, for the presidential election, there is actually a ticket composed of the candidates for president, the vice-president, and the presidential electors.  It is the last two or three where the potential for chaos emerges. Continue Reading...

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The Only Protected Class — White Evangelicals

By tmess2 | Published July 2, 2023

For the past several decades, the U.S. Supreme Court has been on a crusade to end the “special status” of minority groups.  While it is abundantly clear that the purpose of the Civil War Amendments and the various Civil Rights Acts were to help, first African-Americans, and then women, achieve equality, the current majority of the U.S. Supreme Court want to act as if the law requires a “color-blind” (and implicitly a “gender-blind”) approach in which any effort by the government (or private institutions) in taking steps to assure that minority and women have a chance at success will be struck down.   Simply put, African-Americans, Hispanics, and women are no longer going to benefit from a “most-favored nation” status in civil rights laws.  On the other hand, the favored group of the Republican Party (White evangelicals) are entitled to such status.

This week saw the new legal order exemplified in three opinions.

First, and most obvious, was the decision in “Students” for “Fair” Admissions, Inc, vs. President and Fellows of Harvard College.  While the outcome of the case is not surprising as an exercise in raw power by the six Republicans on the Supreme Court, the bottom line is the equal protection clause and Title VI ban any attempt to help African-Americans overcome centruries of discrimination by giving them a “plus” in consideration for spots at “selective” universities and professional schools.  The opinion does leave a limited exception in recognizing that these universities use essays as part of the admissions process and, of course, free speech would bar the government from implementing a ban on references to the racial background of the applicant in these essays.  The Supreme Court directs, however, that in considering these essays, admissions offices should solely consider how these essays reflect barriers that the applicant has overcome or other aspects of the applicant’s character.  Of course, nothing in the majority opinion bans giving a plus to “legacy” candidates even if legacy candidates will be primarily composed of wealthy whites.  The one positive aspect of these opinions is that, like with last year’s abortion decision, this decision costs Republicans their wedge issue.  For the past fifty years, affirmative action has placed minorities against those with lower levels of white privilege for the last spots in government program and kept both groups from focusing on the slots that were reserved for those with Privilege.  Whether, with affirmative action no longer around, the powers that be in the Republican Party can keep folks from taking a look at the preferences given to the children of alumni and wealth donors that take aways spots from both middle class whites and minorities who actually earned a slot at the top colleges will be a big question going forward. Continue Reading...

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The Mostly Dead Independent State Legislature Theory

By tmess2 | Published July 1, 2023

Two clauses of the Constitution — one for Congressional elections and one for the selection of presidential electors — give the primary responsibility for adopting the rules governing elections to state legislatures.  The problem with these two clauses is that the U.S. Constitution does not create state legislatures.  Instead, state legislatures are created by the states themselves.  Not too surprisingly, different states structure their legislatures differently — one state (Nebraska) only has a unicameral legislature, many states allow the voters to initiate and approve legislation, each state has a different number of legislative districts, and some states have unique rules on what laws can be vetoed by governors and how many votes it takes to override a veto.

Traditionally, the Supreme Court has resolved this problem by holding that the election clauses simply refer to the legislative power of the state.  Each state is free to create its own rules about the composition of the state legislature, how many votes it takes to pass legislation, and which body gets to make certain election-related decisions (including delegating the redistricting power to independent commissions).    There has been a theory floating for years on the conservative side that these clauses establish a state legislative power that is “independent” of state law and state constitutions.  While this theory keeps reemerging, this theory has repeatedly failed to be adopted by the U.S. Supreme Court.

In the last round of redistricting, several state court (including North Carolina, Ohio, and New York) invalidated redistricing maps based on state constitutional provisions related to elections.  Initially, the North Carolina courts invalidated that’s states congressional redistricting plans.   North Carolina Republicans asked for the Supreme Court to review that decision based on the independent state legislature theory arguing that the U.S. Constitution barred state courts from interfering with the state legislature’s power under the U.S. Constitution to set election laws related to federal elections even if those laws violated the state constitution. Continue Reading...

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Immigration Week at the Supreme Court

By tmess2 | Published June 25, 2023

While the timing of the release of cases by the Supreme Court is somewhat random, ocassionally, we get several unrelated cases in the same area of law.  This week, out of eight cases released by the Supreme Court, three were somewhat significant immigration cases.

The most favorable for immigrants, and the one most likely to be significant for other areas of law was United States vs. Texas. The basic facts of this case is that the law on immigration mandates that the government pursue “removal” (i.e. deportation) against a wide range of immigrants — both those who unlawfully entered the U.S. (or unlawfully remained after their authorization expired) and those who have engaged in some act which justifies terminating the authorization to remain in the U.S.  The problem is that  (as is true for other areas of criminal and civil law enforcement) enforcing the law takes resources.  You need agents to investigate, attorney to handle the cases on behalf of the U.S., and judges to hear the cases once they are brought. And Congress is only willing to budget for a certain number of agents, attorneys, and immigration judges.  Thus, the enforcement agency (Immigrations and Customs Enforcement which is part of the Department of Homeland Security) has to set priorities.  In setting priorities, it is conceivable that an agency could pursue a “first in” policy in which it pursues all cases in the order in which they come in.  But that creates a never ending backlog in which the most serious cases get delayed.  On the other hand, the government can decide which casses qualify as the “most serious” and let “minor” cases slide.  Every administration for the past fifty years has set (and over the course of the administration adjusted) its own priorities.

In the past, states have typically recognized that federal government decisions are federal government decisions and that the states have no authority to challenge the decisions.  But in recent years, state Attorney Generals have switched from building up their reputation via criminal cases to filing frivolous claims against the federal government.  So today, every decision made by the federal government inevitably results in Attorney Generals of the other party filing a suit on behalf of their state.  And thus, when the Biden Administration implemented its priorities for enforcing immigration law, red state Attorney Generals led by accused felon Ken Paxton, Attorney General of Texas, filed suit claiming that the policy was improperly adopted (claiming that such a directive needed to be adopted through the same process as a formal regulation) and failed to comply with the statutory mandate.  Because this case was filed in federal court in Texas (heard by a very Trumpy judge) and appealed to the Fifth Circuit, the lower courts were more than willing to grant relief to Texas and bar the Biden priorities.  The United States Supreme Court reversed finding that the states lacked “standing” (or in plain English, the right to sue).   Stripped to its essence, the Supreme Court found that, while the failure to more vigorously enforce immigration laws might, in some way, harm the states, finding that the government’s priorities were in some sense wrong would not eliminate the harm.  In short, enforcement priorities are inherently a matter of discretionary decision making by the Executive branch and it would be improper for the courts to interfere with that discretionary authority. Continue Reading...

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Supreme Court — The Last Week

By tmess2 | Published June 24, 2023

As we have discussed for the past several weeks, the Supreme Court is nearing the end of its term.  After two opinion days this past week, we are down to ten cases left on the docket (or eight if you treat the two Affirmative Action cases and two student loan cases as one case each).  At this point in time, we know that Tuesday will be an opinion release day.  It is almost certain that there will be opinions on Wednesday or Thursday (or maybe both days).

As noted in past posts, the Supreme Court tries to keep things balanced within each month (i.e. if there are fewer than nine cases to be decided from one of the “monthly” argument sessions, it is highly unlikely that any justice will be assigned multiple opinion) and across the term as a whole.  In the past weeks, we still had enough cases left undecided from March and April to leave things murky.  But things are now looking very clear (with the understanding that authorship can shift if the assigned justice loses the majority or a case gets dismissed).  But none of the cases issued so far look to have flipped and the one dismissed case was not pending long enough to get assigned.

That balance for the term is key for the projection for November and February.  We are likely looking at a total number of opinions for the term in the mid-fifties.  That means that no justice should have more than seven opinions for the term, and, if any justice has seven opinions, the rest should have six opinions. Continue Reading...

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Supreme Court — Two Weeks to Go

By tmess2 | Published June 18, 2023

We are now down to two weeks left before the effective end of this year’s Supreme Court term.  (Officially, the term ends at the start of October when the next term begins.  But the Supreme Court usually issues all of its opinions before the Fourth of July and only handles emergency matters in July, August, and September.)  As was noted in the post two weeks ago, there are some unwritten rules regarding how the workload is distributed among the justices which makes it possible (not easy but possible) to speculate about who might have which cases.

One complicating factor in this year’s term (as discussed two weeks ago and last week) is that we do not know how many written opinions we are getting this term.  There are three ways that we could end up with fewer opinions:  1) in related cases, the Supreme Court could “consolidate” the cases and issue one opinion covering both cases (this normally happens before argument, but can happen when opinions are assigned); 2) in related cases, the Supreme Court could decide to issue a signed opinion in one case and an unsigned opinion in the other case; and 3) the Supreme Court can dismiss a case after argument.  We have already seen all three possibilities occur this term.  We could have up to eighteen opinions still to come this term.  At the present time, we know that we will have two opinion days this upcoming week.  In last week’s two opinion days, we only get five opinions, but we got six opinions on one day back in May.  My hunch says that we are likely looking at two or three opinion days the week of June 26, but the Supreme Court tends to keep that information closely held and it tends to not announce the last opinion day until the next-to-last opinion day.

How many opinions we have left matters because the Supreme Court tends to try to keep the workload balanced.  If we have eighteen opinions left, there will be fifty-six total opinions for the term which would mean that every justice would have six opinions with two justices getting seven opinions.  But it is possible that some of the remaining cases could have no opinion.  While, due to Justice Jackson recusing in the Harvard case, it is unlikely that the two Affirmative Action cases will be consolidated, it is easy to see a signed opinion in the North Carolina case and an unsigned opinion in the Harvard case.  We could see a consolidated opinion in the student loan forgiveness cases.  And everyone is expecting a dismissal in the North Carolina redistricting case. Continue Reading...

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