Category Archives: Judicial

Supreme Court — 2015-16 Term — Two Weeks to Go (Updated 6-20)

By tmess2 | Published June 19, 2016

While the Supreme Court does not have a hard and fast rule on when it recesses for the summer, traditionally the Supreme Court tries to issue opinions in all the outstanding cases before July 4.  As a result, the last part of June typically sees the media remembering that we have a Supreme Court as major decisions pour out of the court in a flood during this time of year.  It’s not that the Justices intentionally save the major cases until the end, but rather that these cases are the ones that are most likely to go back and forth with drafts and counter-drafts until the deadline for resolving the cases hits.

This year, there are thirteen cases left to be decided.  The Supreme Court has actually been making decent progress over the past month — having gone to two opinion days per week two weeks ago and issuing eleven opinions over the past two weeks.  While the Supreme Court will not announce additional opinion days for this week until after issuing opinions on Monday, it is likely that there will be at least one more opinion day (and maybe two more opinion days) later this week.  Of the remaining thirteen cases, three or four of them have major political implications.

Continue Reading...

Tagged , , , , , | Comments Off on Supreme Court — 2015-16 Term — Two Weeks to Go (Updated 6-20)

The Supreme Court and Puerto Rico — Part Two

By tmess2 | Published June 16, 2016

As noted in Part One, the Supreme Court had two cases involving Puerto Rico this term.  The first, decided, last Thursday was the more philosophical of the two cases — focusing on Puerto Rico’s status under the Constitution.  The ink was barely dry on that opinion when the Supreme Court issued the second opinion — dealing with the more immediately practical question of how bankruptcy law applies to Puerto Rico’s debt.

As a general matter, the Constitution gives Congress the power to enact a “uniform” law governing bankruptcy — a process that allows private individuals, businesses, and even government to restructure (and in some cases partially reduce) their debts.  As the fact that it is one of the enumerated powers in the original text of the Constitution shows, bankruptcy is not a new concept and predates the United States.  The Bankruptcy Code (Title 11 of the United States Code) is divided into chapters with different chapters applying to different entities and the circumstances of that entity — one for businesses that just want to wind up their affairs, one for businesses that want to try to continue, one for private individuals, and one (which applies here) governing the debts of municipalities (Chapter 9).

Continue Reading...

Tagged , | Comments Off on The Supreme Court and Puerto Rico — Part Two

The Supreme Court and Puerto Rico — Part One

By tmess2 | Published June 12, 2016

This year, in a somewhat unusual turn of events, the status of Puerto Rico has been a significant part of national politics — at least at the actual level of governing.  Both the Supreme Court and Congress are considering Puerto Rico’s public debt.  Congress with legislation to fix it; the Supreme Court looking at the legal effect of Puerto Rico’s own efforts to fix it.  While technically these two are not directly related, the Supreme Court is still working on its decision on its case; and nobody knows whether the Supreme Court is keeping one eye on what is working through Congress in writing that opinion.  (The opinion is likely being written by Justice Thomas or Justice Alito).

The Supreme Court also had under review a second case involving Puerto Rico.  Technically, the case was about double jeopardy — the right of a person not to face the same charges twice.  However, there are some exceptions to this general rule and one of them involves what is called the “dual sovereign” exception.  Stripped to its bare bones, this exception recognizes that — under the Constitution — states and tribes retain some vestige of sovereignty.  Because of this legal separateness, two states or two tribes or a state and the federal government can file similar charges against the same individual arising from the same incident without running afoul of the ban on double jeopardy.  However, because a territory does not have the same vestiges of sovereignty, it violates double jeopardy for a territory and the federal government to both file similar charges.  (Similarly, a city within a state and that state may not both file similar charges.)  In the pending case, both the United States and Puerto Rico had filed charges.  The issue presented was whether Puerto Rico’s current status made it more like a state than a territory for double jeopardy purposes.

Continue Reading...

Tagged , , | Comments Off on The Supreme Court and Puerto Rico — Part One

A Divided Court(?)

By tmess2 | Published May 21, 2016

This week at the United States Supreme Court saw eight opinions in the argued cases (leaving 28 cases still to be decided).  The actual opinions raise questions about the ability of the Supreme Court to function with only eight justices.   Since the actual discussions between justices occur in private, it is hard to tell whether the decisions reflect divisions on the merits or just a tendency to only decide what absolutely needs to be decided.  However, in several cases this week, the Supreme Court — having taken review on a broad issue — issued a very narrow decision sending the case back to the lower court to re-examine the broad issue.

Tagged , , | Comments Off on A Divided Court(?)

Affordable Care Act — The Next Challenge

By tmess2 | Published May 14, 2016

While still having to deal with the current attempt to derail the Affordable Care Act (round two of the battles over the contraceptive mandate in the Supreme Court), the next challenge is working through the lower courts.  On Thursday, a Bush appointee to the U.S. District Court for the District of Columbia found that one part of the Affordable Care Act required annual appropriations.  In particular, the part involved requires insurer’s to reduce deductibles and co-payments for certain low-income persons.  In return, the federal government reimburses the insurer’s for those reductions.  While the insurer’s have a right to those payments, the District Court found that this entitlement still requires Congress to appropriate the money.  In the absence of an appropriation, an insurer only obtains payment upon filing a lawsuit (adding additional costs to the process).

The next step in this case will be an appeal to the D.C. Circuit.  At that stage, besides challenging the merits of this ruling, there will almost certainly be a claim that members of the House lack standing to pursue this challenge.  However, the one thing that this case makes clear is that — as long as Republicans have hopes of having the courts gut the Affordable Care Act — they will continue to file challenges to every section of the act.  Of course, given the current balance on the Supreme Court, voters can put this version of shopping for judicial activism to rest by electing a Democratic President and a Democratic Senate.  Maybe then, we will be able to turn our focus to making the health care system work better rather than fighting in court over the last reform.

Tagged , , | Comments Off on Affordable Care Act — The Next Challenge

Supreme Court — Pending Opinions 2015-16

By tmess2 | Published May 7, 2016

Now that arguments have ended for the term, the next seven weeks (starting on May 16) will focus primarily on  issuing opinions in the cases heard over the past seven months.  (There is also the small matter of deciding what cases to hear in the fall.  In the three months of argument since Justice Scalia died, the Supreme Court accepted a grand total of seven cases for the fall — the average over the past decade is 17-18.  With only twelve cases currently on the docket for the fall, there are approximately fifteen to twenty available argument slots.  Given the delicate balance on the court, the Justices may be stingy with grants over the next two months.)  There are currently, thirty-three cases still awaiting opinions.

It is still too early in the term to guess at who will have the significant opinions that still remain.  While there are decision in most of the cases from October-January, the death of Justice Scalia scrambles the number of cases that we would expect each Justice to have from these months.   (Justice Scalia would have been assigned at least one opinion in both months, but died before any of his December or January opinions were issued.  Those opinions would have been re-assigned.  Additionally, his death caused one of the January cases — the union dues case — to be affirmed on a 4-4- vote.  We do not know if Justice Scalia had that opinion or if Justice Alito had that opinion.    If Justice Alito had that opinion, he might not have been in the majority on the last case remaining from January.)  As I have discussed in the past, not every case that the Supreme Court hears is politically sensitive or a close call.  There are several potentially significant cases that will be a close call, and the absence of Justice Scalia may influence the results in these cases.

Continue Reading...

Also posted in Civil Rights | Comments Off on Supreme Court — Pending Opinions 2015-16

Supreme Court: First Amendment and Politics

By tmess2 | Published April 30, 2016

The Supreme Court ended the argument portion of its term this week.  After taking its last two week recess, the remainder of this term will be about attempting to issue opinions in the argued cases.  The question remains how many of these cases will end up in 4-4 split or be rescheduled for reargument in 2017.   Both this week’s one opinion and the last argument of the term had a strong First Amendment component.

Also posted in Civil Rights, Elections, Money in Politics | Tagged , , | Comments Off on Supreme Court: First Amendment and Politics

Supreme Court — Immigration and Redistricting

By tmess2 | Published April 23, 2016

This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term.  Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of  “favors” by a government official will support a conviction under the statutes involved).  After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term.  This week was bookended by two cases of interest to the issues covered by this site.  On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants.  On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.

The issues in the case challenging the President’s immigration policy falls into three categories:  1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law).  As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.

Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.”  The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging.  Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have.  Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision.  When multiple parties join together in a case, the case can continue as long as one of them has standing.  In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court. Continue Reading...

Also posted in Civil Rights | Tagged , , | Comments Off on Supreme Court — Immigration and Redistricting

Redistricting & Equal Protection

By tmess2 | Published April 4, 2016

Today, before taking the next to last recess of the term, the Supreme Court handed down its opinion in Evanwel vs. Abbott.  This case involved an attempt by some Texas Republicans to challenge the use of total population in redistricting.  Instead, the petitioners wanted the Supreme Court to hold that the Equal Protection Clause required states to use some measure of voting population (a measure that would presumably exclude children, non-citizens, and those ineligible to vote for some other reason).

All eight justices rejected this attempt to change the law, but the three opinions in this case were vastly different.  Six justices — in an opinion written by Justice Ginsburg — held that total population was a permissible measure while suggesting that other measures were, at the very least, questionable.  Justice Alito (joined in part by Justice Thomas) while acknowledging that a state could choose to use total population questioned any suggestion that total population was a legally preferred measurement.  Finally, Justice Thomas (writing only for himself) questioned the last fifty years of case law holding that courts had any right to require states to draw districts in roughly equal size in the absence of evidence of discriminatory intent.

The positive side from this opinion is that the attempt of Texas Republicans to exclude large segments of the minority community from counting in the drawing of district lines failed.  The negative side is that there were not five justices to say that the alternative measures proposed by Republicans were not constitutionally permissible.  It is almost certain that some Republicans around the country will attempt to amend state laws to allow them to use these alternative measures.  Hopefully, by that time, we will have a majority on the Supreme Court willing to enforce all of the provisions of the Voting Rights Act and to look behind this facially race-neutral proposal to see the actual discriminatory intent.

Also posted in Civil Rights, Elections | Tagged , | Comments Off on Redistricting & Equal Protection

Religion and the Contraceptive Mandate

By tmess2 | Published March 21, 2016

In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith.  For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to  claims that a law infringed on practices of individual religions.  In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life.  (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.)  In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.

On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine.  Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities).  This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.

Continue Reading...

Also posted in Civil Rights | Tagged , , , | Comments Off on Religion and the Contraceptive Mandate