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Tag Archives: Supreme Court
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.
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.
The Supreme Court ended the argument portion of its term this week. After taking its last two week recess, the remainder of this term will be about attempting to issue opinions in the argued cases. The question remains how many of these cases will end up in 4-4 split or be rescheduled for reargument in 2017. Both this week’s one opinion and the last argument of the term had a strong First Amendment component.
This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term. Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of “favors” by a government official will support a conviction under the statutes involved). After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term. This week was bookended by two cases of interest to the issues covered by this site. On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants. On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.
The issues in the case challenging the President’s immigration policy falls into three categories: 1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law). As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.
Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.” The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging. Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have. Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision. When multiple parties join together in a case, the case can continue as long as one of them has standing. In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court.
Today, before taking the next to last recess of the term, the Supreme Court handed down its opinion in Evanwel vs. Abbott. This case involved an attempt by some Texas Republicans to challenge the use of total population in redistricting. Instead, the petitioners wanted the Supreme Court to hold that the Equal Protection Clause required states to use some measure of voting population (a measure that would presumably exclude children, non-citizens, and those ineligible to vote for some other reason).
All eight justices rejected this attempt to change the law, but the three opinions in this case were vastly different. Six justices — in an opinion written by Justice Ginsburg — held that total population was a permissible measure while suggesting that other measures were, at the very least, questionable. Justice Alito (joined in part by Justice Thomas) while acknowledging that a state could choose to use total population questioned any suggestion that total population was a legally preferred measurement. Finally, Justice Thomas (writing only for himself) questioned the last fifty years of case law holding that courts had any right to require states to draw districts in roughly equal size in the absence of evidence of discriminatory intent.
The positive side from this opinion is that the attempt of Texas Republicans to exclude large segments of the minority community from counting in the drawing of district lines failed. The negative side is that there were not five justices to say that the alternative measures proposed by Republicans were not constitutionally permissible. It is almost certain that some Republicans around the country will attempt to amend state laws to allow them to use these alternative measures. Hopefully, by that time, we will have a majority on the Supreme Court willing to enforce all of the provisions of the Voting Rights Act and to look behind this facially race-neutral proposal to see the actual discriminatory intent.
Elections matter. In 2012, President Obama won the right to nominate judges and justices to fill vacancies on the bench — both in the lower federal courts and on the Supreme Court. In 2010 and 2014, the Republicans won the right to vote down any unacceptable nominees.
Earlier this morning, Justice Antonin Scalia passed away. In 1986, President Reagan nominated Justice Scalia to fill the Associate Justice spot that had belonged to Justice Rehnquist when President Reagan nominated Justice Rehnquist to be the new Chief Justice. For most of his career, Justice Scalia was the intellectual leader of the ultra-conservative wing of the Supreme Court. This vacancy — if filled during this Administration — would be the first time since 1970 that a majority of the Justices on the Supreme Court will be Democratic appointees. This vacancy will have both short term and long term impacts on politics.
The immediate short term is that — except for a handful of issues — Justice Scalia is generally a solid vote for the “conservative” side of legal issues. Those cases that would have been a 5-4 split in favor of the conservative side will now be a 4-4 split. On a 4-4 split, there is no decision and the lower court opinion stands (unless the Supreme Court opts to reschedule the case for the following term). Additionally, as it takes a favorable vote from four justices before the Supreme Court grants full briefing and argument on a case, the tradition when there is a vacancy is to hold cases that have three votes for full review. In particular, the continued extension of “free speech” rights to make it easier for conservatives to raise money and harder for liberals to raise moneys is temporarily on hold. The current opt-out provisions for the contraceptive mandate will probably also survive. Any decision on the immigration policy will either favor the White House or leave it back to the lower courts to decide on the merits (the current issue before the Supreme Court only concerns a temporary injunction pending a full trial).
When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone. The first argument day of each term is always the first Monday in October. There are other key points in the term, but they float a bit. One of those floating dates is the Monday after the last January argument. That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules. Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case. Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October. That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June. With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.
January is a traditional time for looking ahead. The last year of a President’s second term also tends to focus political attention on what the next Administration might look like.
In some ways, the Democrats start this year in good shape, but, in other ways, the Democrats are looking at continuing serious problems. On the positive side, the Democratic presidential primary field is down to three national candidates. Depending on the results in the early states, the Democratic nominee should be decided by mid-March allowing the party to focus on November. Additionally, the economy looks to be in good shape.
Earlier this month, the United States Supreme Court heard arguments in Evanwel vs. Abbott. The issue in this case is how to measure population for the purposes of determining if districts have roughly equal population. The challengers are asserting that population should be based on voters rather than the total population. The State of Texas is claiming that each state gets to choose the appropriate measure of population. This case involves both theoretical discussion of the nature of representation as well as very serious political impact. The decision could vastly alter the politics of the U.S.
Over the last two weeks, the United States Supreme Court has granted review in two sets of cases that will bring the abortion issue to the front and center of the opinions likely to be issued in May and June of 2016 and thus into the presidential campaign. How the Supreme Court addresses these issues will determine who sees a need to win the election to protect their rights.
The first set of cases involve the Affordable Care Act and the Religious Freedom Restoration Act. In 2014, the Supreme Court decided to view the coverage requirements of the Affordable Care Act from the perspective of the employer paying for coverage rather than from the employee deciding how to use that coverage. Viewing the scope of coverage from the perspective of the employer, the Supreme Court decided that a mandate to purchase coverage which included benefits for contraceptives would substantially infringe on the religious freedom of corporation which had religious objections to such coverage. (Many of these organizations express the religious belief that certain contraceptives are abortifacients, notwithstanding that from a medical perspective these items are not abortifacients.) Because there were alternative ways to provide contraceptive coverage to employees, the Supreme Court found that the Affordable Care Act violated the Religious Freedom Restoration Act (which applies a compelling interest/narrowly tailored test to federal laws that substantially infringe on religious beliefs).
Since the 2014 decision, the Department of Health and Human Services has created a form to allow employers to opt-out of paying for coverage. The form, however, requires the employer to provide information about that employer’s insurance policy that allows the government to pay the additional premium to make contraceptive coverage for the employees of the company. Several non-profit organizations with religious affiliations object to the form claiming that any cooperation with the government’s provision of such coverage makes the organization an accomplice to the provision of contraceptive coverage, thereby violating the organization’s religious beliefs.