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Tag Archives: Supreme Court
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.
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.
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.
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.
Heading into tonight’s debate, the Republican Party is very uneasy. Even before Friday, things were not going well in Trump land — a poor debate performance, his taxes, his connections to Russia, his record of disgraceful behavior towards women, minorities, and the disabled. Then came Friday’s latest revelation that Trump is an even bigger cad than we thought. As Donald Trump continues to implode, the question is what options exist for the Republican establishment to salvage the election. The problem for the Republican establishment comes in two forms — the political and the legal.
The political problem is the fourteen million people who voted for Trump in the primary (and some additional like-minded people who did not vote in the primary). While some of these voters might now think that Trump has finally stepped over the line, many of them still support Trump or would be upset if the Republican leadership tried some form of coup to replace Trump. If eight or nine million Trump supporters declined to support the rest of the Republican ticket (about 5% of the vote nationally), that could make a difference in several races. On the other hand, Trump — like Todd Akin in 2012 — could become a lead weight pulling down the rest of the party. From the point of view of the Republican establishment, the best strategy may be quietly shifting resources to states with key Senate, House, and Governor’s races (particularly as Trump lacks a coherent strategy to begin with) and pretending that Trump does not exist.
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.
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.