Tag Archives: Supreme Court

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 — 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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A Partial Victory for Native Americans

By tmess2 | Published June 17, 2023

The history of the United States is full of broken promises to Native American.  For a rather long period of time (in a pattern repeated in other places like Canada and Australia), part of the attempt of the European settlers to eliminate Native Americans was a practice of, for all intents and purposes, kidnapping children and placing them either in boarding schools or adopting them out to White parents to be raised without any knowledge of their ancestral culture.

During the Civil Rights era, several steps were taken to remedy these past sins.  In part, the federal government strengthened the powers of tribal governments.  Congress also passed the Indian Child Welfare Act to prevent a repeat of the efforts of some groups to break the tribes by stealing their youngest members.  Of course, in the U.S. no law stays the same forever, and interest groups always try to push back against the laws that are on the books.  Ultimately, these disputes end up at the Supreme Court, and recent terms have seen an ever growing number of cases related to Native Americans.  This term was no different, and this week saw the U.S. Supreme Court decide two cases related to Native Americans.

The “minor” case — Lac du Flambeau Band of Lake Suprerior Chipewa Indians vs. Coughlin — involved the intersection between tribal government and bankruptcy law.  Like other governments, sometimes an individual who owes money to a tribal government will enter bankruptcy.  If a person owes money to a private business, that business is only allowed to take further steps to collect its debt through the bankruptcy court.  In this case, the debtor tried to have the bankruptcy court enforce the stay against the tribe.  Normally, governments (including the tribes) have immunity from being sued, but the bankruptcy code contains some exceptions.  By a 7-1-1 vote, the Supreme Court found that tribal governments are inclcuded in the limited waiver of immunity contained in the bankruptcy code.  The two who did not join the majority opinion were Justice Thomas and Justice Gorsuch for very different reasons.  Justice Thomas agreed with the majority that the tribe lacked immunity from being sued because the tribe was engaged in “commerical” rather than “governmental” activity and, therefore, would not have had immunity even without the provision in the bankruptcy code waiving that immunity.  Justice Gorsuch, however, would have found no waiver of immunity.  In this case Justice Gorsuch continued his pattern of being one of the foremost defenders of the tribes on the Supreme Court.  While this case was a “loss” for the tribes, it was a loss because the Supreme Court treated tribal governments as being equal to other governments. Continue Reading...

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Supreme Court — October 2022 Term — Update

By tmess2 | Published June 11, 2023

With one week down and three more to go, an updated look at where things stand.  Last week’s post gave some of the basics about reading Supreme Court hints about who might have which opinion.  The Supreme Court has added a second opinion day (Friday) for this upcoming week and the two weeks after that could include three days each with twenty-three cases left to go.

With the decision in the Alabama redistricting case, we now have all of the opinions from October.  As Justice Thomas did not have an October opinion, he is almost certain to have one opinion from November.  As noted last week, a big question mark for November is whether the two affirmative action cases will both produce a signed opinion.  (Because Justice Jackson is recused in the Harvard case, it is less likely that it will be one opinion for the two cases, but the Harvard case might produce an unsigned opinion.)  And depending upon what happens in the affirmative action cases and the student loan cases (which could also end up with only one signed opinion), that will determine whether any justices will have an “extra” opinion through February.

Assuming that we have five opinions coming from November, besides Justice Thomas, the other four justices who could have a November opinion are Chief Justice Roberts, Justice Alito, Justice Kavanaugh, and Justice Barrett.  Based on that line-up, it would be a shock if the Supreme Court upholds affirmative action in college admissions.  It is also an ominous sign for the Indian Child Welfare act case as that group is not known for its concern for Native American interests. Continue Reading...

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Voting Rights Act — A Glimmer of Hope

By tmess2 | Published June 11, 2023

On Thursday, the United Supreme Court issued its opinion in Allen v. Milligan,  a case in which Alabama voters challenged the state’s new congressional district lines under Section 2 of the Voting Rights Act.  As people may remember, due to COVID and the resulting delay in the 2020 census, Alabama completed its redistricting process shortly before filing began.  Although the voters quickly filed their case, and the three-judge panel quickly heard the challenge and issued its decision, a 5-4 majority decided that any change caused by any new lines issued by the judges would be too close to the start of the election process (but that the legislation changing the lines was not) for the judge-drawn lines to be used in the 2022 election.  So the 2022 election was held under the new lines drawn by the legislature while the U.S. Supreme Court decided whether those lines were valid.  In its ruling this week, five justices (with Justice Kavanaugh switching sides and Justice Jackson replacing Justice Breyer) upheld the trial court ruling.

To start with the legal considerations, Section 2 of the Voting Rights Act bars any voting practice or procedure that causes a protected group to “have less opportunity than other” groups “to elect representatives of their choice.”  While Section 2 also contains language disavowing an express requirement of proportionality, previous cases have found that Section 2 applies to redistricting and that it requires those bodies charged with redistricting to consider whether the maps give sufficiently large racial and ethnic groups a fair shot at electing a proportionate number of members.  Basically, this is done by drawing either “minority influence” districts (in which minorities are a large enough percentage of the voters that they can form a majority by aligning with like-minded non-minority voters) and “minority majority” districts. (in which the minority group is over 50% of the likely voters).

The current language in Section 2 was adopted in the early 1980s.  The first major case applying Section 2 to redistricting devised a three-part test.  First, the voters needed to show that minority voters are sufficiently concentrated that there is a reasonable map which would give them an additional minority influence or minority majority district.  In equal protection cases, the Supreme Court has made clear that maps that grossly violate traditional considerations to force geographically dispersed minority enclaves into the same district are forbidden.  Second, the voters must show that the minority group is politically cohesive.  In other words, that a significant majority sees itself as one group and tend to support the same type of candidate.  (For example, it might be harder to show that Asian voters are a group but easier to show that Vietnamese voters are a group.)  Third, the voters must show that the majority group (almost always white voters) will oppose the candidate supported by the minority group.   In other words, the last two parts require showing that racialized voting is still common in the jurisdiction. Continue Reading...

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Quick Hit — Redistricting and Voting Rights Act

By tmess2 | Published June 8, 2023

Today’s Supreme Court opinions included a 5-4 decision affirming a preliminary judgment invaidating the Alabama Congressional Districts under the Voting Rights Act.  We will have a more detailed analysis of the decision this weekend.  But the quick hit is that this decision will probably result in new lines in Alabama and Louisiana which will include a second African-American majority district in both states.

This decision partially offsets the impact of the weird, blatantly partisan, decision of the North Carolina Supreme Court to revert back to the original map after originally striking that map down, and New York might try to draw a new set of lines.  Thus, the state of play for the House is still up to further legislation action this fall.  But, today was a good day for a more representative House.

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Supreme Court — October 2022 Term — First Look at the Remaining Cases

By tmess2 | Published June 4, 2023

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

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The Supreme Court and State Governments

By tmess2 | Published May 13, 2023

This year’s Supreme Court Term is now in the home stretch.  All oral arguments have been completed, and all that is left is for the Supreme Court to issue the decisions in the case.  (As of May 12, there are still 40 cases left to be decided over the next seven weeks.)  On Thursday, the Supreme Court issues an opinion in one of the sleeper cases of the term — National Pork Producers Council vs. Ross.  

The issue in the case is the validity of California’s laws requiring pork products sold in that state to meet certain criteria related to the proper treatment of the hogs prior to their slaughter.  As one can imagine, pork producers in other states do not like having to change how they raise their livestock in order to sell pork in California.  They would rather be able to find the most lenient state possible and raise their hogs in that state.  So they filed a challenge to the regulation based on the so-called “Dormant” Commerce Clause.  The Commerce Clauses gives Congress the authority to pass legislation that regulates interstate commerce.  Over the years, the Supreme Court has inferred from that grant of authority that their is an implied (or in legal speak, dormant) aspect of that grant of power that limits the ability of states to regulate interstate commerce.

In deciding this challenge, we got a rather unique alignment of Supreme Court justices.  And one of the reasons for that alignment is that Supreme Court decisions are not just about the current case.  They are about the next case.  The partisan politics of the Supreme Court (and it is impossible to deny that whatever used to be true, Supreme Court justices have become political actors placed on the court to serve specific political agendas) may dictate the preferred “rule of law” that the Supreme Court justices want to see in place including the blatant tossing out with little or no justification of long-established rules that contradict a justices preferred rule, but justices still like to apply those rules consistently from case to case.  Thus, underlying the decision in this case is what type of analysis should the Supreme Corut apply to the next case in which a red state requires manufacturers to not adopt “liberal policies” to their production processes. Continue Reading...

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