Tag Archives: Second Amendment

Supreme Court Preview — October Term 2023 — Part 1

By tmess2 | Published September 10, 2023

We are three weeks away from the First Monday in October which means that the Supreme Court will soon be back in session.  Putting to the side the continued questions about the ethical failings of certain ultra-conservative justices (who unfortunately would never be convicted by the Senate even in the unlikely event that the more ethically-challenged Republican caucus in the House would actually allow articles of impeachment to pass), that means time to look ahead to the politically-significant cases on this year’s docket.

For a brief refresher, during its annual term, the U.S. Supreme Court sits in seven argument sessions.  Each of these argument sessions lasts for two weeks.  After five of these argument sessions, the U.S. Supreme Court takes a two-week break (with longer breaks over the holidays and after the January argument session).   Typically, for ease of convenience, the sessions are referred to as the October, November, December, January, February, March, and April sessions even though some sessions will begin in one month and conclude in another month (like the November session this year which will begin on October 30).  During the argument session, the Supreme Court hears oral arguments on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, that day is skipped.  There is no firm rule (as the Supreme Court will make adjustments if the docket requires it), but a “full” docket will have two arguments in the morning on each day.  Subject to adjustment if a third party (usually the Solicitor General if a case involves a federal statute) is permitted to argue, the party that lost below gets thirty minutes to argue and answer questions followed by thirty minutes for the party that won below followed by a brief rebuttal argument by the party that lost below.

On the Friday before the argument session, the justices meet to review pending petitions for review and to finalize any opinions to be released the following week.  There are similar conferences on the Fridays on the weeks in which there are arguments at which the justices also discuss the arguments that were heard that week and take an initial vote on those cases which is used to assign a justice to write an opinion.  On the Mondays of argument week (and the Monday after the argument week), the Supreme Court releases on order list announcing the decision on pending petitions for review.   In the early part of the term, there might be a separate list announcing the cases accepted for review on Friday to give the parties additional time to start preparing their briefs (the written arguments on the case) as the time schedule gets rather tight for completing the briefs before the oral argument.  Because of those time limits on the written briefs, the January argument session is effectively the cut-off date for a case being heard during the term.  If review is granted after January, the case is held for the following term.  Thus, the cases that we are about to discuss are those that the Supreme Court granted review on between February and June.  (On rare occasions, as it did for one case this year, the Supreme Court may add a case during its summer recess, but the norm is that — other than emergency matters — the period between July 1 and October 1 is quiet.)  The cases that they will accept (some of which may be discussed in Part III of this preview) in the next several weeks will be argued in the second half of this term. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 2)

By tmess2 | Published September 28, 2022

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

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The Supreme Court — Faux Originalism and the Reactionary Ascendency

By tmess2 | Published June 26, 2022

This is a hard week to post about.  There were three opinion days this week.  And each one featured a new decision that ripped at the fabric of modern society and featured a rewriting of history in the service of originalism to allow the reactionary members of the court to push through an agenda that lacks electoral support based on a misreading of the Constitution.

Tuesday started off the week with Carson vs. Makin, the Maine school voucher case.   Traditionally, there have been two prongs to the Free Exercise Clause — one prong involves the power to follow one’s religious beliefs without penalty and the other prong involves discrimination based on religion.  Posed against the Free Exercise Clause is the Establishment Clause which forbids the government from establishing an official religion or religions.  Traditionally, the big fights have been in the “no penalty” prong.

On the penalizing religion prong, the battle has always been the reasonableness of the proposed accommodations measured against the significance of the government interest.  And in the late 1980s, after one of the low points of religious freedom in which Justice Scalia basically limited this prong to the right to have beliefs without penalty for those beliefs (but no right to act on those beliefs), Congress overreacted by enacting the Religious Freedom Restoration Act which went to the other extreme.  The RFRA and the Free Exercise Clause are on the verge of being interpreted as allowing people to claim religious exemptions from civil rights laws.  And we are likely to see another case in this prong later this week allowing a coach at a public school to pray publicly while on the job at a school function. Continue Reading...

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Supreme Court — End of Term Preview 2022

By tmess2 | Published June 12, 2022

Normally, by this time of the year, the Supreme Court term is coming into focus.  With three weeks to go, typically, there is one or two cases left from the Fall.   While there are always question marks, it is possible to try to figure out results in the key case by who is in the running for getting the remaining opinions from a month.

This year is different.  There are still 29 opinions outstanding out of 62 cases.  While there have been years with more opinions outstanding heading into the last three weeks, those years were back when the Supreme Court was hearing a lot more cases per year.

To date, almost all of the opinions have been in cases that (other than the parties) mostly interested those practicing in that field.  The biggest attention getting case was the decision reinstating (at least for now) the death penalty against the surviving Boston Marathon bomber.  The legally biggest case of the year so far also came from Boston in a Free Exercise/Free Speech case involving Boston’s refusal to let a Christian group use one of the city’s flagpoles in connection with an event even though it routinely gave such permission to nonreligious groups.  That decision may be an indicator of the likely result in some of the remaining cases, but it was merely a continuation of the recent trend in Free Exercise cases. Continue Reading...

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Supreme Court October Term 2021 Preview — Part I

By tmess2 | Published September 19, 2021

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. Continue Reading...

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October Term 2020 — Supreme Court Preview (Part Two)

By tmess2 | Published September 26, 2020

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. Continue Reading...

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The Argument That Wasn’t — Will the Supreme Court Address Gun Rights This Term?

By tmess2 | Published December 7, 2019

When I attended law school, the general consensus of legal scholars and the controlling cases held that the Second Amendment protected a “collective” right rather than an individual right.  However, around that time, a movement was starting among conservative interest groups (with some support from conservative scholars) to push the idea that there was an individual aspect to the Second Amendment.  The historical argument on this issue is murky due, in large part, to the way that cases were decided pre-1800.  About a decade ago, conservatives prevailed (by a 5-4 vote) in having the Supreme Court hold that individuals did have some rights under the Second Amendment and that those rights were “incorporated” against the states by the Fourteenth Amendment.  However, to get to five votes, the Supreme Court left unaddressed much of the details about the nature of the right protected by the Second Amendment.

Since the Supreme Court issued its two opinions, lower courts have been handling challenges to individual laws restricting the ability to purchase firearms — some involving the type of gun, some involving who can purchase firearms, and some involving other details.  The decisions in these cases have been somewhat narrower than pro-gun activists would like.  They have been hoping to get a case to the Supreme Court so that the Supreme Court could establish the legal test that will be applied in Second Amendment cases.  Earlier this year, conservatives thought that they had found the perfect test case.

Last January, the Supreme Court granted review in New York Rifle and Pistol Association vs. New York, NY.  The case involves a challenge to a New York city ordinance that is very restrictive on where gunowners can take their guns.  (Basically, New York State has two types of permits for gun ownership — one only covers general ownership — sometimes referred to as a target license and sometimes referred to as a premises license — and the other permits carrying a weapon — a carry license.  The New York City ordinance provided that people who only have the general permit can only take their gun out of their in-city home to go to an in-city gun range and could not take them to a second home outside the city or to an out-of-city gun range.)  Seeing the writing on the wall, New York State passed a new gun law that essentially invalidated the New York City ordinance and New York City repealed its ordinance and passed a new one that was significantly less restrictive. Continue Reading...

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Supreme Court Term Preview: October 2019 (Part III)

By tmess2 | Published September 25, 2019

As noted in Part I and Part II of this series, there are some very big cases in the first two months of the upcoming Supreme Court term — the applicability of Title VII to sexual orientation and issues related to the board managing Puerto Rico’s debt in October and DACA in November.  Likewise, December has a big case — maybe.

That big case — New York State Rifle and Pistol Association vs. City of New York — is currently set on the first day of the December argument session.  At issue is a New York City ordinance which limits the transportation of firearms by gunowners.  The corporate gun lobby has pushed a Second Amendment challenge to this ordinance. Now, for the catch.  When the Supreme Court took this case, New York City and New York State saw the writing on the wall with this Court.  The original ordinance probably went too far even for those who want tighter restrictions on the sale of handguns.  So New York City repealed the original ordinance and passed a new less restrictive ordinance, and New York State passed legislation clarifying the powers of cities in this matter.  Because the ordinance being challenged no longer exists, the City wants the Supreme Court to dismiss the case as there is no longer a live “controversy” — and under the Constitution the Supreme Court can only hear “cases and controversies.”  There are exceptions which allow a court to review repealed statutes and, one of the issues at the October 1 term opening conference is whether to dismiss this case or keep it on the calendar for argument.

The second case on December 2 involves how copyright law applies to government documents.  Generally speaking, past decisions hold that governments are not allowed to copyright judicial opinions or statutes.  So, any person can go to the library (or an internet site) and copy a judicial opinion or a statute and then establish their own internet site (or publish and sell their own books) containing those opinions or statutes.  This limitation on government copyrights assure that the public has access to the decisions of their government.  One of the things that publishers do to enhance value is create “annotated” copies of statutes — a version in which each statute is followed by a series of notes setting forth the cases that have considered that statute and what those cases have held.  For the most part, these annotated versions are created by private companies.  Georgia, however, has an official copy of its annotated statutes.  The issue is — since a state can’t copyright its statutes or court cases — whether a state can copyright an annotated version of its statutes.  Many of the main legal publishing companies have filed briefs generally in support of Georgia (for fear that a holding in favor of the public interest groups in this case might eventually be used to attack their copyrights on their annotations as well). Continue Reading...

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Supreme Court — End of Term

By tmess2 | Published June 30, 2016

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.

Continue Reading...

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