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Tag Archives: Abortion
Supreme Court October Term 2021 Preview — Part I
Once again, it’s that time of year. Every year, the Supreme Court starts a new term on the first Monday in October. This is the first full term for the new alignment of justices. While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right, Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.
As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions). In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday. The same thing occurs in Week 2. In Week 3, there is an order list issued on Monday. Finally, in Week 4, the Supreme Court meets in a conference on Friday. At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases. Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion. Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision). (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference. If no justice believes that an application should be granted, it is denied.) During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs). The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari. As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status). In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue. While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter). If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments. The Supreme Court calendar features seven argument sessions. After the last argument session, May and June are spent finalizing the remaining opinions from the year. After the Supreme Court releases its last opinion, they recess for the summer. Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).
As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days). On a typical day, there are two arguments (of approximately one hour each) in the morning. Rarely, there are additional afternoon arguments. More often, there is only one argument on a day. The argument docket for a month tends to be released approximately two months prior to the argument. There are currently nine cases set for October and nine cases set for November.
Posted in Judicial
Also tagged First Amendment, free exercise, Free Speech, Religious Land Use and Institutionalized Persons Act, Second Amendment, Supreme Court
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The Texas Abortion Law and the Supreme Court
As is typically the case with legal news, it is very possible to follow the main stream media and get a very inaccurate perception of what is happening in the courts. This misreporting isn’t intentional, it’s just that most reporters are not lawyers and thus miss the details that matter. This past week, the United States Supreme Court denied a stay application related to a new Texas statute that bars abortion after the sixth week of a pregnancy and allows private individuals to enforce that bar by filing a civil case against anybody who aided the woman in getting the abortion — with the remedy being a $10,000.00 payment from the defendant to the person bringing the case. Given the news coverage, I have three comments.
First, most of the impact of the law will come from its nuisance value. The actual age of a fetus is an estimate. Barring some other method that gives a more accurate estimate, gestational age is estimated based on a woman’s last menstrual period (which assumes a regular menstrual cycle and not all women have a regular cycle). Even the woman herself may not know the exact date of conception (unless she only had sex once since her last period). And in the early stages of pregnancy (and most abortions occur in the first trimester), it is impossible for the average person to know the gestational age of the fetus by simply looking at the woman. So unless the woman tells her friend who is driving her to the doctor’s office that she is ten weeks pregnant, the friend will have no idea that the gestational age is beyond six weeks. While I haven’t read the full statute, it seems at first glance that it will be hard for plaintiffs to win. But, particularly for abortion providers, the new statute will mean that they are regularly in court with significant legal expenses and average people might be reluctant to help their friends given the expense of defending against these claims.
Second, the empowering of private citizens to bring claims on behalf of the government is not new. The exact way that these cases will work might have some new wrinkles, but there is an established legal procedure known as qui tam (a shortened title for a latin phrase that translate as “he who sues in this matter on behalf of the king as well as for himself”). As the reference to the king in the translation hints, this procedure is quite old. Usually, in the U,S., qui tam statutes involve allowing those with inside information to bring fraud claims on behalf of the government. If certain legal requirements are met, the successful qui tam plaintiff splits the recovery with the government. Even without the precedent of qui tam, however, it is clear that any legal claim is state action for the purpose of constitutional law which is why libel suits are restricted by the First Amendment.
Posted in Judicial
Also tagged Chief Justice John Roberts, Justice Brett Kavanaugh, Justice Ruth Bader Ginsburg, qui tam, stay, Supreme Court, temporary injunction, Texas
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October Term 2020 — Supreme Court Preview (Part Two)
As we saw in Part One, COVID-19 has caused a rather unique set-up for the first two argument sessions of the upcoming term. October are the cases that would have been argued last term but for COVID-19 requiring the postponement of arguments. As such, as the more politically significant cases were heard in May, October features very few “political” cases. On the other hand, highlighted by the on-going attempt of the Republicans to use the courts to undo the Affordable Care Act, November has several very significant cases.
There are two big cases on December’s docket. First, there is the on-going disputes related to President Trump’s legal troubles. In particular, Trump’s taxpayer-funded law firm (the Department of Justice) is trying to block the House Judiciary Committee from obtaining grand jury transcripts from the Mueller investigation that might be demonstrate that Trump committed impeachable offenses. The technical issue is whether the House Judiciary Committee when doing a preliminary investigation into impeachment fits within the limited group authorized by the Federal Rules of Criminal Procedure to access grand jury testimony.
Second, there is a case-involving the Federal Housing Finance Agency (one of the agencies created after the Bush financial market crash of 2008) and whether it is legally-structured. We saw a similar case this past term involving the Consumer Finance Protection Bureau. So, even if the Republicans do not manage to get another conservative judicial activist onto the Court before this argument, the odds of a ruling upholding the validity of the restrictions on removal are slim and none.
Posted in Impeachment, Judicial
Also tagged Impeachment, Mueller Investigation. Robocalls, Second Amendment, Separation of Powers, Supreme Court
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Supreme Court — Progressive Pyrrhic Victories and Conservative Triumphs
This week the Supreme Court issued five opinions. Putting aside a case about when [generic term].com can be trademarked, the other four cases represent two big wins for conservatives and two narrow wins for progressives in which the reasoning adopted by the controlling vote — in both cases, the Chief Justice — signals bad news for progressives in future cases.
But first, there are some housekeeping details. This week’s opinion finished the outstanding cases from January and February. The only cases left are from May, but we still have eight of the ten cases left. As a result, it is practically wide open as for as which justice has which case. Justice Gorsuch and Justice Ginsburg have both authored six opinions for the Court this year (implying that they are probably done, but Justice Gorsuch still has an outside chance at picking up one of the May cases). Justice Thomas has only authored four opinions for the Court, so he may get two May opinions. Everybody else appears to be due for one May opinion.
This past week, the Supreme Court issued opinions on the Consumer Finance Protection Bureau, abortion, tax credits for religious schools, and conditions on aid to foreign non-governmental organizations. In all of these cases, the controlling opinion established rules that conservatives will love, even if they hate the result in the individual case.
Posted in Judicial
Also tagged Consumer Finance Protection Bureau, Free Speech, Religion, Supreme Court
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Supreme Court — The COVID-19 Term (Updated)
In normal years, the Supreme Court would probably have wrapped up business for the term by now. It has been a long time since the last time that the Supreme Court was still issuing opinions in an argued case after June. There is still a chance that the Supreme Court might finish this term by June 30, but we are getting mixed messages from the court. (I do expect to see opinions in all of the cases before the Supreme Court recesses, but there is a chance that some cases could be set for reargument in the fall.)
On the one hand, we have yet to get any opinions from the May arguments. While the May arguments were two weeks later than the usual time for the April arguments, it is usual to have some of the April opinions by the early part of June. We also have not seen the pace of opinions pick up. In the last weeks of the term, it is not unusual to see three or more opinion days per week, and multiple opinions on each opinion day. At the present time, while we have had second opinion days for the last two weeks, we have only gotten a total of five opinions over the last two weeks (as opposed to the more usual eight to ten opinions per week). And the Supreme Court has only announced two opinion days for this upcoming week.
On the other hand, the Supreme Court has announced that they will have a conference on Wednesday and release orders on Thursday (rather than the normal Monday order day). That sounds like Wednesday could be the “wrap-up” conference.
Posted in Judicial
Also tagged Affordable Care Act, Consumer Finance Protection Bureau, electoral college, Faithless Electors, Free Speech, Native American Rights, Religious Freedom Restoration Act, Supreme Court, Title VII, Trump Finances
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Roberts’s World
We are entering what would normally be the home stretch of the annual Supreme Court term. And it is becoming relatively clear that most of the major opinions for this term will be coming from Chief Justice John Roberts.
As we have noted in past end-of-term posts, the U.S. Supreme Court attempts to balance the number of lead opinions that each chamber has. This balancing occurs in two ways: within each monthly two-week argument session and over the entire term. For example, if there are ten cases argued during a given month, one justice will be assigned two cases and the other justices will be assigned one case each. And a justice who gets two cases in one month will probably one get one case the next month.
By this time of the term, we usually have enough opinions issued to have a sense (not 100% certain because it is possible that a 5-4 case may flip after the first draft of the tentative majority opinion and the tentative dissent are circulated) of who probably has the case. This year, we have almost all of the cases from October, November, and January and all of the cases from December. While we only have about half of the cases from February (and obviously none from May), the look from the first four arguments is somewhat conclusive.
Posted in Judicial
Also tagged Consumer Finance Protection Bureau, DACA, Free Exercise Clause, LGBTQ rights, Title VIII
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Supreme Court Preview: October 2019 Term (Part IV) (EDIT — 10/5)
As noted in Part I, the Supreme Court has yet to issue the calendar for its January argument session. However, for the first time in several years, the Supreme Court has ten cases left over after the December argument session; so there are enough cases already granted to fill the five days of argument in January 2020. There is a chance that the Supreme Court might bump some of these cases to one of the later argument sessions, but — for each of these cases — it is more likely than not that they will be heard in January.
Among the cases set for argument, you have the following issues: 1) can the beneficiary of a pension plan seek relief for misconduct by the plan managers without first proving that they have suffered actual loss; 2) whether changes to the Foreign Sovereign Immunities Act (governing when foreign governments can or can’t be sued in U.S. courts) are retroactive; and 3) whether federal employees claiming that the federal government discriminated against them due to age must — similar to private employees — prove that age was a “but for” cause of the adverse employment decision.
There are three potentially big cases for January. First, there is Kelly vs. United States. This is the “bridgegate” case from New Jersey. The ultimate issue is whether a public official who uses false statements to create the pretense that their order to employees is legal is guilty of defrauding the government (by wasting public resources).
Posted in Judicial
Also tagged Bridgegate, Establishment Clause, Free Exercise Clause, Native American Rights, Supreme Court, unions
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Update on Missouri’s Anti-choice laws
With so-many Republican-controlled states passing laws designed to make abortion illegal, it’s going to be hard over the next several years to track what is happening with each of these laws as they potentially make their way to the Supreme Court. (And the moderate conservatives are going to try to avoid this issue as long as they can.) But I can, at least, track what is happening at the local level.
Missouri passed one of these laws this year — House Bill 126,
First, some brief background on Missouri’s legislative process. Missouri’ legislature meets in an annual session that runs from early January until mid-May (technically, the session ends at the end of May, but all work on legislation must end by mid-May with the last two weeks for the Speaker/President Pro Tempore to sign the official copies of the bills that pass). The Governor then has until Mid-July to sign or veto the bills (with an earlier deadline for bills passed early in the session). The Missouri Constitution generally treats an unsigned bill as if the Governor had signed it. (In other words, the Governor can’t block a bill by leaving it unsigned.) Generally speaking, new laws take effect on August 28, but — by a two-thirds vote in both Houses — the legislature can agree that there is an “emergency” for having it take effect at a different time.
Posted in Civil Rights, Judicial
Also tagged Louisiana, Missouri, Supreme Court
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Supreme Court — End of Term
The Supreme Court recessed for the summer after their last conference (the wrap-up conference) on Monday afternoon. After the order from that conference was issued on Tuesday morning, the Supreme Court has filled twenty-nine of the thirty argument slots for the fall. (A little below average as they normally have some carry-over for the January argument session. )
Monday featured three significant opinions — the Texas abortion case, Governor McDonnell’s corruption case, and an interesting case involving gun control and domestic violence. These cases saw some interesting combinations of Justices as very different judicial philosophies combine to reach the same result.
Posted in Judicial
Also tagged Bob McDonnell, Domestic Violence, First Amendment, Gun Control, Second Amendment, Supreme Court
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