Tag Archives: civil rights

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.

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Supreme Court Preview (Part One): Eight is Not Enough

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.

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Civil Rights and the Supreme Court

Depending on how you define a civil rights case, this past term was, at least, on the surface a very good year for civil rights groups.  I say on the surface because some of the “wins” were only partial wins.  Of the cases most viewed as “civil rights” cases, the side seeking to protect/expand civil rights won 4-6 cases and the only loss was on a procedural issue.

It was a particularly good year if your claim involved religious discrimination.  In Holt v. Hobbs, the Supreme Court found (in a rare win for an inmate) that Arkansas had to permit an inmate to have a half-inch beard under the Religious Land Use and Institutionalized Persons Act.  In E.E.O.C. v. Abercrombie & Fitch, the Supreme Court held that a person suing an employer for religious discrimination need only show that the employer’s perception of the possibility that the prospective employee would need a religious accommodation was one of the factors behind the decision to not hire that person.  (In this case, the applicant was a female Muslim who wore a hijab to the interview.  While the applicant’s religious beliefs were not expressly discussed during the interview, the store declined to hire her based on the belief that she would want an exemption from the company’s policy that employees could not wear any head covering.)

In a very technical decision, in two companion cases out of Alabama, the Supreme Court indicated that — even though preclearance is no longer required — the rules against a racial gerrymander of legislative districts will still have bite.  This case has already had a cascading effect on other reviews of the lines drawn for the 2012-20 elections.  Of course,  the fact that we are on the eve of the third round of elections under these lines is one of the reason why pre-clearance was such a big deal.

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Supreme Court and Equality

Today, the United States Supreme Court issued two opinions, both 5-4 decisions with the majority opinion authored by Justice Breyer, in cases involving equality issues.

The first case, Young vs. United Parcel Service, involved Title VII (precluding discrimination in employment based on race or gender).  Specifically, it involved the interpretation of the Pregnancy Discrimination Act — an amendment to Title VII passed in the 1970s after the Supreme Court had originally ruled that discriminating based on the fact that an employee was pregnant or might get pregnant was not discrimination based on gender.  The generally understood intent of Congress was that an employer could not discriminate against an employee simply because the employee was pregnant or might get pregnant.  The particular provision at issue in the case was the requirement that employers had to treat pregnant workers the same as other workers who are similar in their ability to work or not work.  The employee in this case had a medical restriction due to her pregnancy that limited the weight that she could lift.  This weight limit was less than what UPS expected its drivers to be able to lift; so the employee asked for the company to accommodate her condition, but UPS refused.  The employee claimed that the decision violated Title VII because UPS was willing to make that accommodation for other drivers who had a medical restriction.

The majority (by one vote) decided in favor of the employee.  But rather than following the spirit of the law — requiring an accommodation unless it was unreasonable if the employer granted a similar accommodation to other workers — the majority crafted a balancing test to determine what workers are similar.  Under this balancing test, the fact that an employer was willing to accept a medical restriction for other workers (for example, one who got injured on the job) would merely be one factor in determining whether the distinction that the employer makes between pregnancy and other conditions that require accommodation is based on a  legitimate reasons or whether the reason given seems to be a pretext for discriminating against pregnant women.

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