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Supreme Court

Supreme Court Term 2014-15: Part 2

by: tmess2

Sun Sep 28, 2014 at 18:54:45 PM EDT

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). 

 

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Supreme Court Term 2014-15: Part 1

by: tmess2

Sat Sep 27, 2014 at 01:59:43 AM EDT

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. 

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The Opinion Guessing Game

by: tmess2

Sun Jun 15, 2014 at 11:05:42 AM EDT

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.

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Summer Sequels and Coming Attractions

by: tmess2

Mon May 26, 2014 at 17:13:20 PM EDT

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. 

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Supreme Court Term 2013-14: Outstanding Cases

by: tmess2

Sun May 18, 2014 at 22:31:22 PM EDT

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).

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Campaign Finance Laws -- What's Left and Where Do We Go from Here

by: tmess2

Sun Apr 06, 2014 at 12:50:34 PM EDT

This past week, the United States Supreme Court, by a 5-4 vote in McCutcheon 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. 

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The Supreme Court, Religion, and Heatlh Care

by: tmess2

Sun Mar 23, 2014 at 17:53:31 PM EDT

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.)

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Supreme Court Update

by: tmess2

Sun Jan 12, 2014 at 10:47:24 AM EST

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).  

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The Impact of the Filibuster Precedent

by: tmess2

Sun Nov 24, 2013 at 12:07:33 PM EST

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.

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The Supreme Court and Climate Change

by: tmess2

Mon Oct 21, 2013 at 21:16:57 PM EDT

Last year, I discussed the ruling of the U.S. Court of Appeals for the District of Columbia Circuit upholding the EPA's first round of regulations on greenhouse gases.  To quickly summarize, the EPA had issued four sets of regulations:  an endangerment finding (concluding that greenhouse gases did contribute to climate change and therefore met the definition of a pollutant for purposes of mobile sources); a "tailpipe" rule (establishing regulations to reduce greenhouse gas emissions from motor vehicles and other mobile sources); and "timing" and "transition" rules governing emissions from stationary sources (e.g. power plants). 

Not too surprisingly, the plaintiffs in those cases -- several "red" states and business groups separately filed requests for the Supreme Court to review different aspects of the D.C. Circuit's ruling.  Last Tuesday, the Supreme Court decided which parts of the case it would take.  The Supreme Court denied three of the nine applications in their entirety.  For the remaining six, the Supreme Court only took one issue -- whether the EPA's traditional position that, if a substance qualifies as a pollutant for mobile sources, the EPA is also authorized to regulate emissions of that substance from stationary sources.

By limiting the case to this one issue, the Supreme Court let stand the finding of the EPA that greenhouse gases are a pollutant and the finding that the Clean Air Act requires the EPA to regulate motor vehicles to reduce the level of greenhouse gases.  In doing so, it has dramatically undermined the false claim that the EPA's regulation of greenhouse gases is outside the scope of the EPA's authority.   

More significantly, the one issue on which the Supreme Court did grant review is not a new issue and is not limited to greenhouse gases.  Instead, it is a position that the EPA has consistently applied for the forty years of its existence.  The consistent interpretation of the Clean Air Act by the EPA is an argument in favor of the majority upholding the current set of regulations.  A contrary interpretation would dramatically change how the Clean Air Act is applied across the board and would call into question multiple regulations, but only on technical grounds.  The EPA's current bottom line is that the definition of a pollutant is the same for all parts of the Clean Air Act so a finding that a substance is a pollutant for one part of the Clean Air Act is sufficient to allow regulation under all parts of the Clean Air Act.  If the Supreme Court finds that this is not the case, presumably the Supreme Court would explain how the requirements for the different parts of the Clean Air Act differ.  As such, ultimately, most if not all, of the regulations governing various pollutants from stationary sources would be re-adopted after those additional findings where made including the regulations on greenhouse gases. 

Bottom line is that last Tuesday's ruling was a big setback to climate change deniers; now if only that message would sink in on Capitol Hill.   

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Supreme Court 2013-14 Preview: Part II -- Cases in the Pipeline

by: tmess2

Sun Sep 29, 2013 at 11:51:38 AM EDT

Technically, the Supreme Court term begins each year on the first Monday in October.  And it does, for the purpose of assigning case numbers and the first argument of the term.  In reality, it begins with the "Long Conference."  The Long Conference reflects that there are four unofficial parts to the Supreme Court Term (described in more detail as an add-on at the end of the post).

The essential task of the Long Conference is to dispose of three-months worth of pending applications for review and to begin the process of filling the Winter/Spring argument calendar.  Before the Supreme Court concluded its work on opinions in June, they accepted 42 cases for argument.  The fall argument calendar contains thirty-six of these cases.  In theory, that leaves six cases (because of the unusual posture of one of the cases actually five cases) to be argued in the Spring.  However, there are twenty-three days of argument between January and April.  At the typical rate of two cases per argument day, that means the Supreme Court needs another forty or forty-one cases.  Of most significance, the Supreme Court needs at least five more cases for January.  (The sheer number of cases for the Long Conference creates a perception among lawyers that petitioners want to delay filing their cases to assure that it is heard on one of the later October or November or December conferences while respondents try to extend the deadlines on their responses to delay their cases from a June conference to the Long Conference.)

At the present time, the carry-over cases (and the number of carry-over cases indirectly influences how many cases "must" be accepted in October, November, and December to fill the calendar) include some major cases.  In one case from Massachusetts. the Court is being asked to reconsider the permissible scope of state laws governing protests near abortion clinics.  On the other side of the coin, the Court is also potentially hearing a case from Oklahoma on the validity of Oklahoma's restrictions on the use of the "morning after" pill -- potentially because the Supreme Court has asked the Oklahoma courts for a more detailed explanation of the actually scope of Oklahoma's law.  The Supreme Court also has a case on the proof required before a defendant convicted of possessing or distributing child pornography can be ordered to pay restitution to the victim of that child pornography.  Lastly, the Supreme Court will consider the meaning of the recess appointment clause.

While we will not know for sure until after Monday, the most significant of the cases are the challenges to the first batch of regulations on greenhouse gases.  Given the closeness of the Supreme Court's decision in Massachusetts vs. EPA, there is a good chance that some of the Justices will want to take this case to undo these regulations.

While not yet set for any given conference, applications about the requirement in the Affordable Care Act that employers must provide insurance coverage for employees that includes contraceptive coverage are now pending.  Given that there is a conflict in the lower courts about whether this requirement violates the First Amendment rights of the owners and management of these businesses, it is likely that the Supreme Court will take at least one of these cases. Whichever case is accepted will probably be set for argument in March or April.  

 

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Supreme Court 2013-14 Term Preview: Part I -- Fall Arguments

by: tmess2

Thu Sep 26, 2013 at 22:40:35 PM EDT

The United States Supreme Court will start its 2013-14 Term on October 7.  The United States Supreme Court follows a somewhat predictable cycle. 

Starting with October, it holds seven argument sessions, typically designated by the month in which the argument begins (i.e. October, November, December, January, February, March, and April).  Each argument session is followed by two weeks off (though the post-December and post-January off periods tend to be an extra week or two off).  In each argument session, the Supreme Court holds arguments on Monday, Tuesday, and Wednesday (except for any holidays) of each week.  On each day, arguments begin at 10:00 a.m EDT and runs for approximately two hours (typically one hour per case).  If necessary, arguments resume at 1:00 p.m. EDT.  In recent years, as the Supreme Court has taken fewer cases, afternoon arguments have become a rare exception.  However, this fall, the Supreme Court has scheduled several afternoon arguments.  Over the summer, the Supreme Court released the argument calendars for the October, November, and December sessions and those cases will be the topic of this post.  A second post will consider the remaining cases that have been accepted for argument in early 2014 and other cases in the pipeline that might get added.

The annual term begins with a case from Illinois about whether government employees must raise employment discrimination claims under employment discrimination law or if they can recharacterize their claims as a civil rights violation.  While every case is important to the parties, the two big cases in October are McCutcheon vs. Federal Elections Commission and Schuette v. Coalition to Defend Affirmative Action. 

The issue in McCutcheon are the continued constitutional validity on the aggregate contribution limits (i.e. what a donor can give to all candidates and party committees combined). This limit prevents donors from donating the individual maximum to every candidate that the party is running.  The would-be large donors contend that this limit is no longer constitutional (if it ever was).  In light of previous decisions (of which Citizens United may be the least significant), the Supreme Court has been big on money as speech in recent years, and could very well strike down these limits.  However, since the previous decisions basically allow unlimited donations to unregulated Super PACs, this decision may ultimately prove meaningless.

Schuette involves a state constitutional amendment that precludes universities from adopting affirmative action policies in admissions.  The challenge to this provision is based on a series of Supreme Court decisions that have struck down constitutional provisions that restructure the political process by state constitutional amendments to prevent minorities from fighting for programs in regular day-to-day politics (e.g. legislation, appointments to Boards of Regents).

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September in DC

by: tmess2

Thu Sep 19, 2013 at 22:53:38 PM EDT

As summer turns to fall, there are some familiar rituals in DC.

At the Supreme Court Building, the Justices and a new set of law clerks are going through cases that have piled up over the summer in preparation for the long conference in two weeks and also looking at the briefs of the cases set for argument in October.  I'll have a little more on what is already in store for what is already looking like another major term later this month.

On Capitol Hill, however, Senators and Representatives are going through what has unfortunately become a regular ritual of being unable to handle one of their most basic functions -- the passing of appropriations bills to keep the government running.  The federal fiscal year used to run from July to June, but Congress decided in the 1970s to move the start back to October 1 to give Congress more time to pass a budget plus the appropriations bills.  It has always been difficult to get all of the bills passed on time.  In recent years, it has become almost impossible to get any appropriations bill passed on time. 

Congress has tended to have a mixed record when one party controls both houses and the Presidency.  In 2006, when the Republicans controlled both houses, they managed to at least get the bills for Defense and Homeland Security passed by mid-October before ultimately giving up.  In 2005, the Republicans managed to pass two of the bills before the deadline and had everything done by the end of December.

In 2009, the Democrats got one bill done by October 1 and had everything else wrapped up by mid-December. 

This year, so far, the House has managed to get four bills over to the Senate, but six bills are stalled on the House floor and two are still stuck in the Appropriations Committee.  (The Senate Appropriations Committee has passed 11 of the 12 bills to the Senate floor). 

It should not be that difficult to get this done on time.  At least not if every year was not treated like Armageddon.  Part of the problem is that appropriations (actually allocating the money for each program) is separate from authorization (creating/extending a program and defining what counts as fully funded).  Authorization bills go through the "substantive" committees and are not considered by the Appropriations Committee.  Appropriations bills do not go through the substantive committee.

This dichotomy makes no sense and is part of the problem. In a more sensible system, every department would (in a staggered manner) undergo reauthorization every eight years.  A reauthorization bill would go through both the substantive committee and the Appropriations Committee.  By including the Appropriations Committee, the "authorized" level for each program would actually match the level that the Appropriations Committee intended to fund instead of a different, fictional level.  At that time, Congress would use a form of zero-based budgeting with each program having to justify its basic appropriations for the next eight year.  Then, during the interim years, the presumption would be that funding would stay the same unless there was a consensus to change the level of funding for a program.  This would limit the fighting over particular programs to once every eight years, and allow those charged with implementing a program a decent ability to predict their funding level for the next several years -- thereby allowing rational decision-making.  With only one or two departments under significant review, the presumption would be created that the remaining bills should pass without difficulty.  Furthermore, having a presumed appropriations bill would force those opposed to the current levels to specifically identify what levels they wanted to change and why those changes warranted throwing a monkey wrench into the process.

Instead of such a sensible system, we get the current mess where even a resolution to continue funding for the rest of government at the levels set forth in the sequester provisions of the current budget law gets held up on whether we should fund those operations connected with the implementation of the Affordable Care Act. Ultimately, something has to give. Hopefully, it will not be the credit rating of the federal government.

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Voting Rights -- Possible Paths Forward

by: tmess2

Fri Jul 05, 2013 at 07:30:00 AM EDT

Last week, in Shelby County, Alabama, v. Holder, the Supreme Court issued an opinion striking down Section 4 of the Voting Rights Act.  On the one hand, this decision is a major setback for the use of the Voting Rights Act to prevent what Chief Justice Roberts described in his opinion for the Court as subtle forms of discrimination, but it is not, by itself, a fatal blow.

The Voting Rights Act was passed in 1965 and is codified in Title 42 of the United States Code starting in Section 1973.  There are two major sections in the Voting Rights Act that protect against discriminatory practices.  The first of these two sections (commonly called Section 2) bars procedures and practices if plaintiffs can show that, as a result, of those practices the election process is not equally open to participation by all races and ethnic groups.  A process is not equally open if members of one racial group have less opportunity "to participate in the political process and to elect representatives of their choice."  Most cases under this section involve issues of "vote dilution" -- primarily using district lines to reduce the number of districts in which specific groups have "influence" over who wins.   Courts have generally interpreted Section 2 as requiring those challenging an election procedure to show a negative impact on the voting power of minorities.  These cases are heard by three-judge panels in one of the federal court districts in the state.

The other major restriction is contained in what is commonly called Section 5.  Under Section 5, a "covered" state must submit proposed changes to election procedures to preclearance.  Preclearance requires getting the approval of the Department of Justice or a three-judge panel of the District Court for the District of Columbia for the change.  A change can only be approved if the state demonstrates that the proposal does not diminish the ability of a specific racial group to select their preferred candidate (typically referred to as retrograde analysis. 

Section 4 was a crucial provision because it established the baseline formula for which states and jurisdictions were subject to preclearance.  Section 4 contains two main parts.  The first part contained the initial formula from 1965, 1970, and 1975.  The second part contained rules by which the states and jurisdictions that were covered by the first part could exempt themselves from preclearance. 

The Supreme Court struck down the first part of Section 4, finding that the use of which states were bad actors in 1975 was not reasonably related to current problems (particularly as the majority of the covered states now were not distinguishable from the other states in terms of the factors used in the coverage formula) and thus this disparate treatment of states could not be justified.  While the majority mentioned the second part of Section 4, it did not consider whether that part of Section 4 (the failure of the covered states to prove that they had sufficiently reformed) justified keeping Section 4 intact whereas the dissent emphasized the importance of this second part.

So where do things go from here?

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Same Sex Marriage Rulings -- Immediate Effect and What's Next

by: tmess2

Sat Jun 29, 2013 at 11:21:35 AM EDT

Now that three days have passed and folks have gotten a chance to digest Wednesday's rulings, what do they mean to the average person and what still needs to be decided.

The Proposition 8 decision is the clearer of the two in terms of going forward.  The Supreme Court found that the proponents of Proposition 8, who were the only people who appealed from Judge Walker's decision did not have the right to represent California in federal court (regardless of their right to represent California in state court).  Because there was not a valid appeal, the opinion of the Ninth Circuit (which only applied to California's unique circumstances anyhow) is wiped out and the appeal is dismissed leaving the District Court judgment intact. 

Technically, a declaratory judgment case only declares the rights of the plaintiffs, but most government officials will apply a decision invalidating a law as if it applies to all potential plaintiffs.  The defendants in the Proposition 8 cases have announced that they believe that same sex couples can now legally get married in California.  The only potential problem is that the plaintiffs only named two of the county officials who handle marriage licenses as defendants.  Currently, state officials say that all local county officials are required to follow the instructions of the state officials who keep vital records, but you may have a couple of conservative counties where the local official balks.  My expectation is that if this happens, any requests that a court order the local official to issue the license will be a state court case and the California state courts will hold that the local county official has to follow Judge Walker's ruling.  I doubt the US Supreme Court will get involved in this issue.

The DOMA decision  is a little more complex.  Technically, the Supreme Court only struck down Section 3 of DOMA which established a rule for interpreting federal statues to eliminate a same-sex spouse from the definition of spouse.  The Supreme Court was not asked to rule on Section 2 which holds that one state does not have to recognize another state.  Section 2 may be key for some federal benefits, and is also key to state decisions not to give state law benefits to same-sex spouses.

On the federal level, there are two basis types of rules for federal benefits and marriage.  Some regulations (including social security) define spouse based on the state of residence (i.e. does your state consider your marriage legitimate), but others define spouse based on the state of marriage (i.e. did you fully comply with the rules to enter into a valid marriage in the place where you got married).  The DOMA decision glossed over the fact that, at the time that Ms. Windsor's spouse died, her home state did not recognize same-sex marriage.  By glossing over this fact, the Supreme Court left blurry the issue of whether it matters how your state of residence treats the validity of your marriage.

Since Wednesday, the federal Office of Personnel Manage has issued a memorandum outlining the transition for the first set of federal benefits to be extended to the same-sex spouse of a federal employee. 

On DOMA, I would expect the next round of cases to attack -- both in state court and in federal court -- the constitutionality of Section 2 (allowing a state to refuse to recognize a same-sex marriage in another state) and any law purporting to deny state and federal benefits to a couple that was validly married in another state but now live in a state which does not allow same-sex marriages. 

While there will also be other cases involving the constitutional validity of laws banning same-sex marriages, my hunch is that the Supreme Court will avoid those cases for the time being.  If they are likely to take any case it will be about whether states can refuse to recognize a marriage performed elsewhere.

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