When same sex marriage was last in the news, the U.S. Supreme Court had declined to review decisions striking down bans on same sex marriage from the first three circuits of the U.S. Court of Appeals to address the issue since the U.S. Supreme Court invalidated part of the Defense of Marriage Act. Shortly afterward, the Ninth Circuit made the count 4-0.
Today the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) made the count 4-1. Aside from the impact on the residents of these four states, this decision changes the picture in a legally significant way. While there is no requirement that the U.S. Supreme Court take any case, the U.S. Supreme Court in its own rules suggests that it sees the need to resolve splits between the various circuits of the U.S. Court of Appeals on issues of federal law as a primary consideration in determining which cases to hear. Five weeks ago when all of the appellate courts had reached the same result, there was no split to resolve. Today, there is.
At this point, the couples in these cases (the Sixth Circuit heard six separate cases from all four of its states together) have a decision to make as to the next step. Which option they take might matter to folks in the other courts still considering appeals on this issue.
Option Number 1 is to file a motion for rehearing. Because of the number of appeals filed in federal court each year, the federal court of appeals is divided into regional circuits and, even within those circuits, judges hear cases in panels of three. To assure consistency in the decisions within a circuit (and to avoid a meritorious claim failing due to bad luck in the process of randomly assigning cases to panels), parties can file a motion to have the case re-heard by all of the judges of the court. While these motions are rarely granted, there is no legal downside to requesting a rehearing. The very act of filing a motion for rehearing extends the deadline for requesting the U.S. Supreme Court to take the case.
Option Number 2 is to give up the chance for rehearing and proceed directly to the U.S. Supreme Court. There is no legal advantage to this option, but there is a practical advantage -- it gets your case to the U.S. Supreme Court sooner.
This is where other considerations enter into the equation. First, while the cases were heard together, these are still technically six separate cases. Each set of couples get to make their own decision on what they want to do next. Similarly, there are four sets of state officials who get to decide how to respond.
Second, aside from the fifteen days to make this decision, there is a second time crunch. The U.S. Supreme Court briefing rules effectively require the U.S. Supreme Court to accept a case by mid-January in order to hear the case in April and decide the case by the end of June. While the proponents of same sex marriage would prefer a favorable decision from the U.S. Supreme Court sooner rather than later, it's not clear that trying to cram this case onto the April argument calendar is the best way to get a favorable decision. Even if the couples want that quick of a decision, the states will have thirty days to respond to any application and it is not unusual for parties to get an extra thirty days to file the response. Thus even if the couples want to force a decision this term, the states could push it off to next term without any unusual tactics. Under these circumstances, the delay from filing and losing a motion for rehearing will probably have little impact on the Supreme Court hearing the case in Fall 2015.
Third, given the composition of the full Sixth Circuit, there is a decent chance that a motion for rehearing would be granted. If a rehearing is granted, the full Sixth Circuit might find in favor of the couples. While this would be good for couples in these four states, it would eliminate the split in the circuit and, thereby, make it less likely that the Supreme Court would take one of these cases.
Fourth, while a split between the circuits is a factor in the U.S. Supreme Court's decision to take a case, it does not have to take any case. In not taking the earlier applications, the Supreme Court Justices potentially gave a sign that they do not want to take any same sex marriage cases at this time (as opposed to a sign that they approved of the lower court decisions in the earlier case). By not asking for rehearing, the couples give up a chance for getting relief from the Sixth Circuit without any assurance that the Supreme Court would take their case. Additionally, if the Supreme Court declines to take a case upholding the bans on same sex marriage, such a decision would clearly signal that the Supreme Court has not yet taken a position on the validity of such bans (encouraging the remaining, more conservative, circuits to uphold the bans in their states).
Fifth, there is a school of thought that the Supreme Court is not going to take a case on whether a state has to accept same sex marriage until almost every state allows same sex marriages. If that is the case, the only chance that these couples has is a motion for rehearing.
Sixth, there are actually two separate issues in these cases. Some of the cases involve couples seeking the right to marry in their home state. The rest of the cases involve the more limited issue of whether a state has to recognize a same-sex marriage performed in a state that allows same-sex marriage. This second issue is more narrow, and some think that the swing votes on the Supreme Court might be more willing to consider this issue (which after all would merely extend the earlier ruling that the federal government has to recognize such marriages to the state governments). Thus, it is possible that the couples seeking "recognition" might decide to go directly to the Supreme Court (after all, if the full Sixth Circuit recognized a right to marry these couples would still effectively win) while the parties seeking the right to marry ask for rehearing by the Sixth Circuit.
While most folks are paying attention to Tuesday's election, the Supreme Court will be hearing arguments on Monday morning in what might be the most politically charged case of the term.
Back in 2002, Congress passed a law allowing American citizens born in Jerusalem to designate Israel as their place of birth on their passports. The State Department for the past twelve years has simply ignored this law, continuing long-standing U.S. policy of treating Jerusalem as disputed territory with its status to be resolved by negotiations between Israel and the Palestinian Authority.
Around the time that Congress passed this statute, Menachem Zivotofsky was born in Jerusalem. His parents, U.S. citizens, sought to have Menachem's passport reflect that he was born in Israel. When the State Department declined, they filed suit on Menachem's behalf.
Thirty years ago, the courts would have dismissed this case as a political question, finding that this dispute was a matter for Congress and the State Department to resolve. While the lower federal courts agreed with this traditional approach, in March 2012, the U.S. Supreme Court set aside two hundred years of history and held that this case presented nothing more than resolving the constitutionality of a statute and sent it back to the lower courts to address the validity of the statute.
Not too surprising, the case is now back before the Supreme Court after the lower courts found that the statute represented an improper interference with the power of the Executive Branch to conduct foreign policy. Technically, this case is not about whether (at the end of negotiations) Jerusalem should be part of Israel. Most Americans support Israel's position in on-going negotiations that Jerusalem will be on the Israeli side of the final borders (and any proposed map from the State Department has reflected this position). The State Department believes that, since the status of Jerusalem is on the table (as the Palestinians still want part of Jerusalem) and the U.S. wants to have a role as a mediator on this issue, the U.S. should not take the position that the status of Jerusalem has been resolved.
The Zivotofsky's take the position that this case (and the statute) merely involve Congress's authority to govern the content of passports. The State Department takes the position that the statute goes beyond the general content of passports and, instead, trespasses on the presidential power to recognize nations and governments (including recognizing borders).
The State Department seems to have the better argument. Nobody is questioning that Congress can require that passports note the place of birth of an individual as a means of identifying the bearer of the passport. The issue is whether Congress can, by statute, decide that a certain city is within a certain country. If Congress can declare by statute that passports will reflect that Jerusalem is part of Israel, Congress could also declare by statute that Belfast and Londonderry were part of the Republic of Ireland (instead of the United Kingdom) or that Kirkuk was part of the nation of Kurdistan (instead of Iraq). Such decisions seem to go to the core of the President's authority to conduct foreign policy.
Transcripts of the argument (as well as a recap) should be available on Monday afternoon on SCOTUSblog with the actual audio being available on Friday. A decision will likely not come down until February (or possibly later).
This time two weeks ago, most court watchers thought that the United States Supreme Court was certain to agree to review at least one of the cases from the Fourth, Seventh, and Tenth Circuit striking down the state bans on same-sex marriage in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. Then the Supreme Court turned down all of the applications and things began to happen quickly over the past five days.
First, the Ninth Circuit (not too surprisingly) joined the other three circuits by striking down same-sex marriage bans from Idaho and Nevada. Idaho filed a stay application with the U.S. Supreme Court, and Justice Kennedy temporarily granted the stay (preventing the enforcement of the Ninth Circuit decision). This stay application and stay caused some confusion as the application and the original stay referred to both the Idaho case numbers and the Nevada case numbers, but. by the end of the day. it was clarified that the stay only applied to Idaho. Even that stay was listed by the end of the week.
Second, state officials in Colorado (part of the Tenth Circuit) dismissed their state court appeal and agreed to lift the stay on the federal appeal. While not completely final, same-sex marriage is currently legal in Colorado.
Third, a stay on further judicial proceedings has been lifted in the West Virginia case and state officials will not be defending their state ban. West Virginia's official response is due on October 21 and the ban will probably be struck down officially shortly afterwards.
Fourth, a federal judge in North Carolina struck down that state's ban on Friday. As of now, there is no stay on that decision, and it is unlikely that one will be granted.
Fifth, while there is no currently pending federal case in Kansas, a state judge ordered that local clerks begin issuing same-sex marriage licenses, and a review of that decision is pending on an emergency basis in the Kansas Supreme Court.
Right now, there are federal cases pending in Alaska, Arizona, South Carolina, and Wyoming. It is likely that those cases will soon be resolved with the marriage bans in those states being struck down.
The real legal action is in the remaining four circuits that have not yet addressed the issue. The Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) heard argument at the start of August. It is not unusual for a court to take three to four months to write an opinion (particularly if it ends up being a 2-1 decision); so most likely a decision will not occur until November.
The Fifth Circuit (Louisiana, Mississippi, and Texas) currently has cases from both Louisiana and Texas. Briefing is complete in the Texas case, but no argument date has been set yet. There will probably be a decision from the Sixth Circuit before the argument date (most likely December or later).
In the Eleventh Circuit (Alabama, Florida, and Georgia), there is a pending case from Florida, but the district court judgment was only at the end of August. With a normal briefing schedule, the argument in the Eleventh Circuit will probably be some time next Spring.
Finally, in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), cases are moving more slowly with some state court actions and only one federal court actions. It is unlikely, that there will be any decision from the Eight Circuit before the remaining three circuits have addressed the issue.
With its actions of the last week, it now seems unlikely that the Supreme Court will take any case unless one of the four remaining circuits upholds a same-sex marriage ban. Given the current pace of decisions from the lower court, it seems likely that any case on this issue will not reach the Supreme Court before October 2015 (with a decision in the Spring of 2016). If there is no split, the Supreme Court might take a case after the 2016 election to issue a decision after same-sex marriage is de facto recognized in all fifty states merely to ratify those decisions.
With the Supreme Court back in session, the fireworks have already started. As discussed in the previous parts of this series, there are interesting cases working their way to the Supreme Court (with the next key decisions on same-sex marriage now due from the Sixth Circuit -- probably toward the end of this month or in November) as well as several interesting cases in October and November.
We pick up in December. Despite having more argument slots (12 arguments) than either October or November (10 arguments each), December seems to be more about technical cases specific to certain legal practice areas than cases of public significance with two major exceptions.
One case that has drawn a lot of attention is Young vs. United Parcel Services. This case involves the intersection of several anti-discrimination statutes. In particular, the Americans with Disability Act requires employers to provide reasonable accommodations to employees with a physical disability. Title VII of the Civil Rights Act has (at least since 1978) provided that discrimination against a pregnant employee is illegal gender discrimination. The issue posed in this case is whether -- if pregnancy causes a temporary inability to perform certain job-related tasks -- employers need to make the same accommodations to the pregnant employee that they would make for an employee who could not perform those tasks because of a permanent disability.
The other significant case for December is Elonis vs. United States. Technically, the issue in this case is the mental state required by a federal criminal statute. (Traditionally, a crime requires both the commission of a prohibited act and a mental state -- i.e. that the act is reckless or done knowingly or done intentionally). What makes the case significant is that the statute in issue is the federal harassment statute which prohibits the act of threatening others. Because the crime involves speech, there is a First Amendment component to the case. While it has probably been most noticed in the campaign finance area, since the Chief Justice and Justice Alito joined the Supreme Court, there has been a lengthy list of pro-free speech decisions. To the extent that the First Amendment plays a significant role in this decision, it could have a substantial impact on similar state laws (including laws criminalizing the violation of order of protection/restraining orders). These laws tend to be use to protect victims of domestic violence from continued threatening conduct from their exes, so a broad opinion that greatly restricts the conduct that can be reached such laws could result in law enforcement being unable to step in before the ex actually commits a new assault.
At this point, the Supreme Court has not yet set its January argument docket (presumably ten cases). Even before last weeks grant of eleven new cases (the most significant of which were covered in Part 1), the Supreme Court already had five cases available for argument. Three of these cases are potentially of general interest/political significance.
If you have been following today's headline, one of the big stories of today was the decision by the U.S. Supreme Court that it would not grant review on seven cases filed by state and local officials from five states involving state bans on same-sex marriage. Below are some of the more common questions that the news media/interested parties have been asking and answers to those questions.
1. What did the Supreme Court decide today? A. Technically, all the Supreme Court decided today is that declined the petitions of the state officials asking the U.S. Supreme Court to review these seven cases on the merits (technically, the Supreme Court denied the applications for a writ of certiorari to the appropriate circuit of the U.S. Court of Appeals). Such a decision is literally a non-decision and does not take a position on the merits of the cases or mean that the Supreme Court will not hear a similar case in the future. It just means that, for whatever reason, the Supreme Court has opted not to consider this issue at this time in these cases.
2. What does this decision mean for these cases? A. In all seven cases, either the Supreme Court or a lower court had stayed the decision (in plain English, not let the decision go into effect) pending the final decision by the Supreme Court. While the state and local officials can still ask the Supreme Court to reconsider its decision, the stays should be lifted within the next several days. That means, by the end of the week, same-sex couples will be able to get married in Indiana, Oklahoma, Utah, Virginia, and Wisconsin.
3. What does this decision mean for other states? A. It depends upon the state. The federal court system has thirteen "intermediate" (in the sense of being above the trial court and below the Supreme Court) appellate courts. Putting to the side the federal circuit (which handles specialty cases like patents and copyrights) and the D.C. Circuit, the remaining eleven circuits cover geographic areas of the country.
Today's decision involved cases from three circuits -- the Fourth (basically Maryland to South Carolina), the Seventh (Illinois, Indiana, and Wisconsin), and the Tenth (basically the southern Great Plains and the Rocky Mountains). By declining review, the Supreme Court left these seven cases as the governing precedent in these three circuits. In the Seventh Circuit, after today's decision, same sex marriage is now legal in all three states, making the binding nature of these decisions on future cases an academic point as there are no potential future cases.
For the other two circuits, a lot of the media report inaccurately describe the impact of today's decision. The existence of this precedent does not mean that same-sex marriage is now legal in all of the states within the circuit. It means that any court deciding any future challenges must take into account the earlier decisions in these cases. The remaining states (Colorado -- which is already on appeal -- Kansas, and Wyoming in the Tenth Circuit and North Carolina, South Carolina, and West Virginia in the Fourth Circuit) can still try to argue that there state ban is somehow different from the state laws in Oklahoma, Utah, and Virginia or that there is some additional evidence or theory that was not presented by those three states in defending their laws. (Additionally, all of the opinions were panel opinions. While panels of the same court are supposed to follow the decisions of other panels of that court, a different panel can reach a different conclusion and none of the parties in these cases asked for rehearing by the entire circuit. So if the entire circuit were to hear an appeal from one of the other states, the circuit might reject the reasoning of the panels in this first round of cases).
For the circuits not involved in this case -- the Fifth (Louisiana, Mississippi, and Texas), the Sixth (Kentucky, Michigan, Ohio and Tennessee), the Eighth (mostly the Louisiana Purchase minus Kansas, Louisiana, and Oklahoma), the Ninth (the Pacific Coast and the states west of the Rockies), and the Eleventh (Alabama, Florida, and Georgia) -- these circuits remain free to reach their own conclusion. Right now, there are cases pending in the Fifth, Sixth, and Ninth.
While we will not know the full docket for all the months until late February or early March, November is looking like it might be the most significant month of the docket.
The first case is a returning case: Zivotovsky v. Kerry. This case involves a statute mandating that U.S. passports should show that the place of birth of any American born in Jerusalem is Israel. For diplomatic reasons (namely that Jersualem's status is a central issue in on-going negotiations between Palestinians and Israel), the State Department refuses to comply with this mandate. (The status of Jerusalem is an example of an issue in which candidates for office say one thing -- supporting Israel's position that its annexation of all of Jerusalem is final -- but then let the professional diplomats do something else -- avoid taking sides to be in a position to mediate the negotiations and push them toward a conclusion). In past decades, this is a case that the court would avoid like the plague. Last time that it took this case, the Supreme Court set aside an attempt by the lower court to punt this case on procedural grounds. Now, it will have to decide whether this statute impermissibly infringes on an executive power or if the State Department has to follow the statute. Whatever it decides will upset a lot of people.
The other really, really big case involves the Alabama Democratic Party and the Alabama Legislative Black Caucus challenging Alabama's legislative redistricting plans. While it is unlikely that even the fairest redistricting plan would give Democrats a chance in Alabama, what the Supreme Court says about the rules for drawing lines might make a difference in 2021 in some other states.
Besides these two cases, there are four other cases that are worthy of note. T-Mobile South v. City of Roswell involves the Telecommunications Act of 1996. This act tried to encourage the spread of wireless services and mobile phones by placing limits on the ability of small towns to use zoning rules to completely ban cell towers. In particular, the law requires that all decisions be made in writing and supported by a written record. This suit involves whether a short order saying that the application is denied with no explanation of the reasons for the denial meets these requirements.
Another case involves health care benefits for retirees in union contracts. The employer takes the position that those benefits are not permanent and can be taken away from current retirees in a new contract. The retiree takes the position that once granted as part of a contract, those rights are vested. This case may end up turning on the specific wording of the union contract in question.
Also before the case is Maryland's state income tax law. Most state income tax laws include a credit for income taxes paid in other states. Maryland's does not. This case will address whether such credits (essentially avoiding paying state income taxes on the same income twice) are constitutionally required.
Lastly, there is Yates v. United States. On its face, this case is an overreach by a prosecutor -- using the anti-shredding provisions of Sarbanes-Oxley to reach the dumping of illegally caught fish by a fishing boat. The odds that this conviction survives are very slim. The bigger question is what the Supreme Court does to define what type of objects are covered by the statutory language banning the alteration, destruction, or concealment of any "tangible object." Needless to say, Sarbanes-Oxley was passed in the wake of very gross misconduct by several major corporations (e.g., Enron), but with over a decade passed since that misconduct, will a business friendly Supreme Court try to water down these legal requirements.
The Supreme Court handles a wide variety of cases. Some cases directly concern political matters (things like redistricting, campaign financing, separation of powers, elections). Some cases are not directly political, but involve the issues that separate the two parties (health care, civil rights, worker's rights, gun control). Some cases have the potential to impact a large number of people or are otherwise plainly significant, but tend to concern issues that are not center-stage in political debates (e.g. some criminal law issues, some intellectual property issues). Other cases are important only to the lawyers who practice in the area (e.g. most bankruptcy cases, most intellectual property cases) but need the uniformity that only the Supreme Court can provide. And occasionally, you get cases that involve legal principles taken to their absurd limits in lower courts. For the most part, in my posts over the past several years on the Supreme Court, I have tried to focus on the first three groups.
This term we will see cases that fit into all five categories. The term starts on October 6 with five days of argument (ten cases) in October. There are three cases in October that are potentially significant. First up is, Holt v. Hobbs, a case involving the Religious Land Use and Institutionalized Person Act. This Act, is a limited restriction on state governments (mostly zoning and prison cases) similar to the Religious Freedom Restoration Act that was at the center of last term's case on contraceptive mandates. The actual issue is one of those issues that seem minor enough to make this case one of those "absurd" cases that stumble up to the Supreme Court. Arkansas prisons, for security reasons, ban beards. Some Muslim inmates believe that Islam (or at least their version of Islam) requires them to have some beard, and want an accommodation to allow them to have very short beards (no more than one-half inch in length). However, this case will give another indication about how far this Court's protection of religious liberty extends.
Also up in October is Integrity Staffing Solutions v. Busk. Normally, most time spent at the work place getting ready for work, checking in and checking out, is not counted as time on the clock. In some circumstances, however, those activities are closely connected enough to the job to count. Here, the employer requires the staff to go through a security screening before leaving the job as an anti-theft security device. The issue is whether this type of practice should count as time on the clock.
October also brings us North Carolina Board of Dental Examiners v. Federal Trade Commission. Normally, state licensing boards are exempt from anti-trust law even though one effect of state licensing requirements on professions and other businesses is to limit the number of members of the profession. The Federal Trade Commission has taken the position that, because North Carolina law (like the law in many states) requires that the majority of the members of the Board be licensed in a dental profession, North Carolina has forfeited the "governmental" exemption for licensing boards. In this case, the support for the FTC position comes from two main groups: 1) those trade associations representing groups (e.g. nurses) that are typically limited to a supporting role under current licensing schemes; and 2) certain conservative groups that see all licensing restrictions as unwarranted infringement on their preferred version of the free market (where the government has no role in keeping incompetent professionals out of the market place and any consumer unfortunate enough to use a quack doctor, dentist, or lawyer has to hope to recover something after a long, law suit with the decks stacked against them).
Next post: November's full docket(six major cases).
It's once again that time of year. After taking three months attending conferences, vacationing, or whatever it is Supreme Court Justices do between July 1 and mid-September, the Supreme Court returns to business on September 29 with the infamous "Long Conference" when they dispose of most of the business that has piled up over the last three months.
At the present time, the Supreme Court has published their argument dockets for October, November, and December (32 cases over sixteen days). In the 2015 part of the term, the Supreme Court will have twenty-three days which (assuming the typical two cases per day) means that they have room for 46 cases on this year's argument calendar. Since they already have granted five cases that did not make the three months of arguments this year, that leaves 41 spots to fill between now and mid-January. (I will cover the 37 cases on the argument docket in the remaining part(s) of this post later over the weekend and next week).
Obviously, over the summer, a lot of potentially big cases pile up. (Attorneys for the sides that win below like being on the Long Conference for that reason in the hopes that their case will get lost in the shuffle.) At the present time, there are two potentially big cases (or more to the point sets of cases) awaiting a decision on whether the Supreme Court will accept them for argument.
The biggest of the two (in terms of sheer numbers at least) are the same-sex marriage cases. Back in 2013, the Supreme Court found that the federal Defense of Marriage Act (denying federal recognition to same-sex marriages) was unconstitutional, but opted out of deciding if there was an actual constitutional right to same-sex marriage by finding a procedural reason to avoid deciding the validity of California's ban (leaving intact the lower court decision striking it down). Since July 2013, most state and federal lower courts have rejected state bans on same-sex marriage (and state refusals to recognize same-sex marriages from other states). These decisions are slowly working there way through the federal appellate court. At the present time, the U.S. Supreme Court has applications from the Tenth Circuit (specifically, Utah and Oklahoma), the Fourth Circuit (specifically, Virginia), and the Seventh Circuit (specifically, Wisconsin and Indiana). So far, all three federal appeals court to decide this issue have struck down state bans on same sex marriages. However, there are cases pending in the Sixth Circuit (Ohio, Kentucky, and Tennessee) and the Fifth Circuit (Texas and Louisiana) which might come out in favor of upholding the restrictions. While most people expect the Supreme Court to eventually take a case, it is unclear if the Supreme Court will rush to take one of the current cases or will wait to see what the remaining appellate courts do. (Of the eleven Circuits, three -- the First, Second, and Third -- are unlikely to face the issue as the states in those circuits allow same sex marriage; the three noted above have already ruled; three -- the Fifth, Sixth, and Ninth -- currently have appeals pending; and two -- the Eighth and the Eleventh -- do not yet have any appellate cases.)
The other really big issue is the latest version of a dispute over the Affordable Care Act. Some people who oppose universal health care keep on looking for new ways to attack the Affordable Care Act. The latest theory is that the statutory language providing subsidies to middle-income families to purchase health care on exchanges only applies to individuals who purchase from a state-run exchange. Since most states refused to set up their own exchanges, most people purchased their insurance from the federal exchange. Under the theory presented in these cases, if you purchased insurance from the federal exchange, you don't get any subsidy to help you purchase health care. Over the summer, a panel of the Fourth Circuit rejected this argument, but a panel of the D.C. Circuit accepted the argument. When you lose before a panel of a federal appeals court, you have two options: 1) you can go straight to the U.S. Supreme Court or 2) you can ask for the full appeals court to review the case. Seeing a conflict between two courts, the opponents of universal health care opted to go straight to the Supreme Court, bypassing the full Fourth Circuit. Thus, the Supreme Court has the Fourth Circuit case on the Long Conference docket. The federal government, on the other hand, decided to ask for a hearing by the full D.C. Circuit, and the D.C. Circuit granted that request. For now, the Fourth Circuit case has not yet been scheduled for a conference (the U.S. receive an extension on their response, and it will probably be on one of the November conferences). While anything could happen, it is likely that the Supreme Court will either turn down the request to review the Fourth Circuit or will wait to see what the D.C. Circuit does.
As we enter the last two or three weeks of the Supreme Court's session, court watchers turn to a guessing game of which Justice has which opinion. What drives the guessing game are the informal rules of the court and two key pieces of data.
For the purposes of the guessing game, there are two key informal rules. First, opinions are assigned by the senior Justice in the majority (with the Chief Just being automatically senior to the eight Associate Justices). Second, in making assignments, the Justices are conscious of the work load of each of the chamber and try to keep the assignments relatively balanced. Of course, the alignment of justices on individual cases can frustrate this second rule.
The two key pieces of data are the opinions already issued by the justices and the number of cases argued (both for each sitting and the entire term). Not considering the two cases that were dismissed after argument, the Supreme Court heard 68 cases this year. Based on that number, each Justice should have seven or eight majority opinions. Furthermore, through January, there were 44 cases requiring opinions (with 24 between February and April). One would expect each Justice to have five opinions through January (one should have four) and two or three for the remainder of the term (and most likely to have two opinions from March and April given that there were 17 cases in those two months).
At the present time, Justice Kennedy has issued eight opinions. Based on the above, he should be done for the year (or at most have one more). There is also the quirk that, notwithstanding the above, Scalia actually had six opinions through January.
Looking at January, with four cases outstanding, three Justices do not have an opinion from January -- Justice Breyer (three total through December), Justice Alito, and Justice Kagan (both with four total through December). Two other Justices have four total through January (the Chief Justice and Justice Sotomayor). Based on the above, I think that the Chief Justice is most likely to have the Noel Canning (recess appointment) case. Since becoming Chief Justice, Justice Roberts has tended to keep the biggest cases for himself. Of the other three cases, I can see Justice Breyer getting McCullen (the abortion protester case), especially if there is a consensus that the Massachusetts law was just a bit too restrictive. My hunch says that Justice Alito is likely to get Harris (the home health care provider unionization case).
In February, with two cases outstanding, the three strongest candidates to have the opinions are the Chief Justice, Justice Thomas, and Justice Ginsburg. My hunch says that the Chief Justice has the Climate Change cases. The other case (involving Haliburton) involves the basic theory of security fraud. If the Supreme Court is not making a major change, Justice Ginsburg will have the opinion (which will be her eighth of the term). If the Supreme Court is making a major change, Justice Thomas will have the opinion.
There are still too many undecided cases from March and April (11 total remaining with six opinions issued) to make any firm guesses (other than Kennedy not having any and Ginsburg or Sotomayor -- both already at seven opinions -- maybe not having any). For the reasons noted above, my hunch says that the Chief Justice will have kept Hobby Lobby (contraceptive coverage) for himself.
Everybody loves a good sequel. Hollywood and the publishing industry love sequels and have the formula down to a science.
The Supreme Court appears to love a good sequel too. In twenty-eight years since the Supreme Court made it more difficult to discriminate in jury selection, they have taken up almost twenty cases to fill out the details of how that new rule would work in practice. Similarly, almost ten years ago, the Supreme Court decided to return to the original rules on when an out-of-court statement violates a defendant's right to confront witnesses. Over the past ten years, the Supreme Court has heard six cases (and will probably add a seventh case for next term) to figure out how those rules apply to the modern criminal justice system.
Among the cases left on the docket are two very big sequels -- both of which are likely to become major issues in the fall races.
The first of the two is the Employer Mandate cases dealing with the requirement that the insurance policies available to employees must include coverage for contraceptives (a sequel to the 2012 decision upholding the Affordable Care Act). Especially, as seem likely, if the Supreme Court decides this case by applying the Religious Freedom Restoration Act rather than the Free Exercise Clause, the decision will be an easy weapon for both sides in the fall races. If the employees and the U.S. government win, the decision becomes Exhibit A in the fictional "War on Religion" that Faux News tries to push. If the businesses win (especially if it is the five Republican appointees against the four Democratic appointees), it is another example of the Republican War on Women (which is less a war than the indifference of Republicans to the difficulties that women face).
The more interesting case is the Climate Change cases. Back in 2007, the Supreme Court found that the Bush administration was not following the Clean Air Act by ignoring the impact of carbon dioxide and other greenhouse gases on climate change. Since then, the Supreme Court in a first sequel ruled that any regulation had to be through the Clean Air Act, not through a common law nuisance action. Now, in the second sequel, the Supreme Court is examining part of the regulations -- particular the part that impacts power plants and coal.
Since the first ruling, the Republicans have tried to push the meme of a war on coal. This fall, two key Senate races (West Virginia and Kentucky) will take place in states with a significant coal industry. How, the Supreme Court determines the Climate Change cases could have a potential impact on these races. The exact issue in the current case is whether the regulations adopted by the EPA are justified by the Clean Air Act -- specifically whether the finding that carbon dioxide (and related gases) are a pollutant for the purposes of regulating cars also means that they are a pollutant for the purposes of power plants.
There are three possible results in this case. First, the Supreme Court could find that the EPA is correctly applying the Clean Air Act, and that, if anything, it has cut industry a break by phasing in the new regulations. Second, it could find that the EPA, while not compelled to go as far as it has, is still reasonably interpreting the statute. Finally, it could find in one or more ways that the EPA has departed from the statutory language.
From the point of view of the Democratic candidates in Kentucky and West Virginia (both state officials), the best possible result is the first option -- a holding that the EPA is merely doing what the Supreme Court ordered back in 2007. In this scenario, there is an argument that the EPA has had no choice or discretion in the matter and that the problem is not that the EPA is anti-coal but that the current law is anti-coal. In this argument, while it probably was not possible to completely prevent some negative impact on the coal industry, there have been proposed amendments to the Clean Air Act that might have postponed the worst of the impact and given the coal industry time to adjust -- amendments that went nowhere largely because Mitch McConnell blocked them in the Senate (and Shelley Capito joined with her fellow Republicans to oppose them in the House). The question for the fall is whether Democrats in coal states can convince the voters that Republican obstruction of moderate compromise on the Clean Air Act is the equivalent of Nero fiddling while Rome burned. Control of the Senate may turn on this issue.
It's that time of year again. The Supreme Court is done with arguments and will be spending the next six weeks issuing opinions (as well as finalizing the cases to be heard this fall). This year, the Supreme Court heard arguments in seventy cases. So far they have decided forty cases and have thirty remaining. We will probably get 3-4 opinions per week for the next three weeks at which point the remaining cases will come in a flood (including most of the major cases not yet decided).
Most of the cases from last fall have been decided. The biggest case remaining (probably being written by Chief Justice Roberts) is in many ways a small case that has become much bigger than it should be. The case is Bond v. United States back for a second time at the Supreme Court. The case involves a poisoning, but the local federal prosecutor decided to charge a federal offense under a statute implementing the Chemical Weapons Convention. By opting to charge a federal offense (rather than letting the state prosecutors handle the case as a state offense), the federal prosecutor has created a major dispute over whether a the US can use a treaty to expand federal power. The easy out in the case would be for the Supreme Court to narrowly interpret the statute to not reach the charges in this case. The other two cases from the fall involve the ability of a child to get residence status under U.S. immigrations law if that "child" becomes an adult while on the waiting list and the scope of the federal authority to regulate casinos run by Native Americans if those casinos are located outside of tribal land.
The winter cases (January and February) are only half-decide (ten cases remaining out of nineteen arguments). Because of the number of cases remaining, it is too soon to tell which justices might have these cases. There are still three big cases from January. The biggest is the Noel Canning case on the scope of the recess appointment power. Whichever side wins may well regret it when, at some point in the future, control of the White House flips. For now, conservatives are arguing that the President can only fill a vacancy during the recess between the end of the session in the fall of one year and the first meeting of the following session in January and only if the position becomes vacant during that recess. Also outstanding from January is a case on the Massachusetts law creating a protest-free bubble around abortion clinics and mandatory unionization for home health care providers in Illinois (for the purpose of Medicaid reimbursements.
The big case from February is the greenhouse gas case. As noted in previous posts, the Supreme Court rejected most of the challenges to the regulations and is only considering a limited technical issue of statutory interpretation -- does the finding that these gases are pollutants for the purpose of the sections of the Clean Air Act governing motor vehicles also mean that they are pollutants for the sections covering power plants. The other major case from February is a securities fraud case involving Haliburton (a/k/a the source of all evil).
This past week, the United States Supreme Court, by a 5-4 vote inMcCutcheon vs. Federal Election Commission, struck down the law imposing an "aggregate" limit on the amount that one individual can give to all candidates and party committees in a single election.
A mere eleven years ago, by a 5-4 vote, the Supreme Court upheld a significant portion, but not all, of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) in McConnell vs. Federal Election Commission. In this opinion, the swing vote was Justice Sandra Day O'Connor with Justices Stevens, Souter, Breyer, and Ginsburg also joining in that opinion. On the other side were Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. A key part of the opinions upholding parts of McCain-Feingold was the recognition of the potential appearance of corruption from large scale expenditures (especially by corporations) even if not direct contributions to candidates.
In 2006 Justice O'Connor retired and Justice Samuel Alito took her seat. In that same term, Chief Justice Rehnquist died and was replaced by Chief Justice Roberts.
In 2007, in Federal Elections Commission vs. Wisconsin Right to Life, the Supreme Court decided by a 5-4, with Justice Alito and Chief Justice Roberts joining the McConnell dissenters, that "issue" ads run on the eve of an election were not election spending subject to FEC regulation (despite the clear intent of McCain-Feingold to regulate such ads). (An "issue" ad is an ad run by a group that typically criticizes a politician for stands on certain issues. The main difference between an issue ad and an a "campaign" ad is that the issue ad does not expressly request a vote for or against any candidate -- even though it is not hard to read between the lines and get the message as to how the ad wants the person to vote.
In 2010, in Citizens United v. Federal Election Commission, the same 5-4 majority struck down a long-time restriction on corporations using their money for independent expenditures on campaign ads. When combined with Wisconsin Right to Life, the Supreme Court essentially held that corporations (i.e. groups organized outside of campaign finance laws and thus exempt from campaign finance disclosure requirements) could spend unlimited amounts of money -- regardless of whether they phrased their ad as a mere issue ad or went the next step of asking for a vote for or against a specific candidate.
Now, the Supreme Court has gone the next step and struck down the aggregate contribution limits. The law recognizes four "base" limits on contributions to a single candidate or committee. First, a donor can only give a candidate $2,600 per election (effectively $5,200 for the two-year cycle, $2,600 for the primary and $2,600 for the general). Second, a donor can give $32,400 per year to a national party committee. Third, a donor can give per year $10,000 in federal money to a state committee. Fourth, a donor can give a federal political action committee $5,000 per year in federal money (noting, of course, that these restrictions do not apply to donations to non-PACs that make "independent expenditures"). Besides these limits on donations to a single candidate or committee, before Wednesday, the law contained three limits on aggregate or total contributions to all candidates/committees. First, a donor could only give a total of $48,600 for a two-year cycle to all federal candidates (state candidates being outside the jurisdiction of the FEC). Second, a donor could only give a total of $48,600 per two-year cycle in federal money to state and local parties and PACs (again noting that these limits do not apply to non-PACs, e.g. Americans For Prosperity). Finally, a donor could only give a total of $74,600 per two-year cycle in federal money to non-candidate committees (including national political parties).
In its decision on Wednesday, the Supreme Court found that these aggregate limits could not be based on the appearance of corruption (the reason used to uphold the base and aggregate limits in 1976 and 2003). Limitations on aggregate donation were invalid in the absence of proof of actual bribery. While the majority is technically correct that there decision on Wednesday leaves intact the base limits (and the bar on direct donations by corporations), that is simply a matter of the limits of this case. Under the reasoning of the majority, neither the base limits nor the limits on corporate donations can be justified. The most that can be justified are reporting requirements to assure that there is no "bribery" of candidates. As such, the only thing keeping the rest of current campaign finance laws in place is that the current five-Justice group is not yet ready to take the next logical step. However, until one of them retires, all campaign finance laws are at risk of being struck down at any time.
As the dissent notes, the claim that the base limits are enough is simply not accurate. Without the aggregate limits, a person can form unlimited PACs and use each of those PACs to give additional money to the same candidate without limits. The giving of money to committees with the understanding that the money is to be spent on a specific race is already a problem that is difficult to police. This new ruling makes it even harder to enforce the restriction on targeted donations. Furthermore, the ruling undermines the entire justification for the base limits. It is hard to tell what will happen next. As noted above, there is no indication in the majority opinion of any substantial basis for distinguishing what is left in campaign finance law from what has already been struck down.
On Tuesday, the Supreme Court will take its second look at the Affordable Care Act. This time the issue is whether the requirement of the Affordable Care Act that employers purchase health insurance for their employees or pay a penalty violates the religious freedom of corporations. In particular, the specific requirement at issue is that the health insurance policy must cover the purchase of medications, including contraceptives. Several corporations have filed law suits claiming that, because they believe that some contraceptives are immoral (because they believe that these contraceptives prevent a fetus from implanting in the uterus and thus are morally equivalent to an abortion), requiring them to purchase insurance for their employees that includes coverage for such contraceptives violates their religious freedom. These claims are raised under both the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (passed to overturn a Supreme Court decision narrowly interpreting the Free Exercise Clause).
There are three basic questions in the case. First, can a secular corporation (i.e. one not formed for a religious purpose or by a religious organization) have religious beliefs? Second, if a secular corporation does have religious beliefs, who gets to decide what the corporation believe. Third, assuming that a corporation can have religious beliefs, does the "contraceptive mandate" violate the right of the corporation to act on its religious beliefs?
The first two questions are questions of corporate law. Corporations are legally separate persons from their owners and managers for a long list of long-established reasons. A corporation is not the majority shareholders; it is not the board of directors; and it is not the officers of the corporation. In particular, the board of directors, the officers, and the controlling shareholders are not free to do what they want without taking into consideration of the best interests of everyone who might have a legal interest in the corporation. Even when all of the shareholders agree on something that they would like to see done, the corporation is not simply the alter ego of the shareholders. There is a real possibility that the Supreme Court will look at the potential implication of this case on corporate law and find that none of the corporations in this case have a religious belief. Of course, that merely punts the real decision down a term or two because there are religious foundations waiting in the wings.
The last question (assuming that the court reaches this issue) may come down to how the court frames the issues. Anybody who follows recent American politics knows how multiple Republican consultants have looked at the work of George Orwell and drawn inspiration from the Ministry of Truth in 1984. One thing that they have made abundantly clear is that the answer to a political question depends upon how the question is framed. While true in the battle for public opinion (whether the estate tax is seen as a "death tax" or a "greedy heirs tax" matters to whether people support it), it is normally less true in legal cases. This case unfortunately is an exception to the rule.
The corporations want to frame this issue as they are being forced to pay to give their employees access to "immoral" contraceptives separate from the rest of the requirement to provide insurance. The government wants to frame this issue as the companies being required to provide insurance coverage to employees as part of the "salary" of the employee. How, the employee uses this insurance coverage is up to the employee. If potential misuse of an employee's salary allowed an employer to refuse to pay that salary, then an employer should be free to replace a pay check with a series of non-transferable vouchers to assure that the employee does not use their pay to purchase alcohol or cigarettes or questionable literature or guns or gas-guzzling vehicles or high-fat food or to gamble.
Needless to say, if the view that the company is buying insurance and not a particular part of the insurance coverage (with the worker choosing what they use the insurance for), the owner's concern about the immoral activities of their employees is not a sufficiently substantial concern to exempt them from the mandate, any more than it exempts them from minimum wage or similar law. On the other hand, if the Supreme Court separates the contraceptive coverage from the rest of the insurance policy, then the religious objection becomes more substantive. In that case, the odds are that the court will, at the very least, find that the mandate to include contraceptive coverage violates the Religious Freedom Restoration Act, which places a higher burden on the government. (There is at least one or two justices who might vote to find that the mandate violates the RFRA who have voted for a lower standard in Free Exercise cases.)
On Friday, the Supreme Court returned from its annual extended winter-break with its first conference of 2014. January at the Supreme Court marks a transition between the first "quarter" of its term to the second quarter.
In the first quarter, the Supreme Court is primarily hearing arguments in cases and deciding what cases to hear for the remainder of the term. With Friday's grant of review to eight cases for the April argument docket, the April docket will probably have more cases than the February docket. In the first quarter, opinions are issued in only the most clean cut cases. (Of the six opinions issued on cases argued in October, November, and December, all six were 9-0 decision with only two concurring opinions -- five from October and one from November).
In the second quarter, in addition to hearing arguments on the remaining cases, the Supreme Court begins to issue opinions in some of the semi-controversial cases and begins granting cases for the following term.
As far as cases from the fall that still have not been decided, there are several potentially big cases. From October, the Justices are still working on their opinions in McCutcheon (the challenge to the "aggregate" limits that individuals can contribute to all federal candidates combined) and Schuette (the challenge to the Michigan state constitution ban on affirmative action). From November, the case generating the most media interest is Galloway (the challenge to the opening prayer at town council meetings). Finally, from December, the big cases are probably EME Homer City Generation (a challenge to the EPA rules for calculating the interstate impact of pollution and regulating polluters when they contribute to pollution problems in near-by metropolitan areas) and Lozano (the second case in recent years to interpret a provision of the Hague Convention on Child Abduction, this time looking at whether the time for raising a claim is tolled if the abducting parent hides the child).
With new arguments starting on Monday, January is going to be a big docket with 12 arguments on five days. The biggest case is probably the Noel Canning case involving the rules governing recess appointments. This case was even bigger before the recent de facto change to the filibuster rules, but given that there will be times when the White House and Senate are controlled by different parties, this case will still be significant.
The other big case in January is McCullen v. Coakley. This case involves a challenge to a Massachusetts law creating a buffer zone around abortion clinics. This law creates a larger buffer zone than has previously been approved by the Supreme Court. While technically a First Amendment case, this decision will be the first implicating abortion rights since the 2007 decision upholding the federal ban on partial birth abortions. Given what is in the pipeline, it is unlikely that the Supreme Court will go another seven years without hearing a case on abortion.
Two cases that may become big are United States v. Quality Stores and Paroline v. United States. Quality Stores raises the question of whether severance packages are subject to Social Security taxes. Given the current cap on income subject to Social Security taxes, this case is not as big as it could be. If that cap were lifted as part of Social Security reform, this case could be huge. Paroline involves the calculation of restitution for victims of child pornography. The issue is the degree to which the victim has to show that her damages are caused by the individual defendant (typically someone who downloaded a handful of photographs as opposed to the actual producer).
This past week, on a procedural vote, the majority of the Senate decided that a simple majority could end debate and schedule a vote on nominations for executive branch positions and lower federal courts. In response, Mitch McConnell threatened that Republicans would potentially extend this precedent to Supreme Court nominations in the future.
As a threat, the threat is not much. In the past 40 years, the Democrats have only used the filibuster against two Supreme Court nominees -- William Rehnquist (twice) and Samuel Alito. All three nominations ultimately received a vote on the merits. A couple of President Nixon's earlier nominees were withdrawn in the face of the threat of a filibuster, but those nominations might have failed on an up-down vote if they had reached that stage. The only nominee that a president has withdrawn after a failed cloture vote was the nomination of Abe Fortas for Chief Justice by Lyndon Johnson. In short, the threat from Republicans is pretty much bluster. The reality was Harry Reid and the Democratic majority had a choice -- either they could decide to act like Republicans the next time that the Republicans gain the White House and vote against cloture on a large number on presidential nominations (including upping the stakes by expanding to the Supreme Court) or they could end the game-playing on nominations. They decided that the number of nominees who really deserved to be filibuster did not justify continuing this fiasco. Theoretically, this decision could allow the next Republican president to nominate more extreme candidates for the bench, but unless the Republicans gain a very large majority in the Senate -- such nominees could potentially fail on the merits.
What does this mean presently. Currently, there are ninety-three vacancies on the federal court (of which the President has nominated potential replacements for fifty-one). More significant is the age of some of those vacancies -- some of which have had multiple nominees blocked by the filibuster.
Of the ninety-three vacancies, four (two Court of Appeals, two district court) vacancies date back to when George Bush was president including the replace for John Roberts on the D.C. Circuit. There are nominees pending for three of these four (the fourth being a district court vacancy in Texas). From 2009-10, there are seven (two Court of Appeals, five district court) vacancies. There are nominees pending for three of the seven. From 2011-12, there are thirty-four (six Court of Appeals, twenty-eight district court), there are nominees pending for twenty of the thirty-four.
Additionally, of the currently pending nominations, nineteen have been pending since before July 1. To date of those nominated before July 1, the Senate has confirmed only thirty-eight of fifty-seven -- taking between two and six months to confirm a nominee. Looking at the gender breakdown of the nominees, the Senate has confirmed twenty-three of the thirty-two men (approximately 72%) nominated before July 1, but only fifteen of the twenty-five women (approximately 60%). If you use a June 1 cut-off, the numbers change to twenty-three of twenty-six men (approximately 88%) and fifteen of twenty-two women (68%). (It should be noted that six of the nineteen pre-July 1 nominations are still pending in committee, two men and four women, but the other thirteen are waiting action on the floor of the Senate).
Looking at the big picture, there are currently eighty nominations that are on the Senate calendar (i.e. the appropriate committee has held a hearing and reported the nomination to the floor). Of these nominations, two are military (i.e. promotions), twenty-two are ambassadors/other foreign service, thirty-eight are other executive branch appointments, and eighteen are judges. With any luck, all eighty can be confirmed before the end of this session.