Category Archives: Judicial

A Republic if You Can Keep It

By tmess2 | Published July 4, 2021

While many American today are celebrating the anniversary of the issuance of the Declaration of Independence, the United States Supreme Court spent this week giving a green light to Republican attempts to cook the ballot box.  Forty years ago, both parties supported the Voting Rights Act.  Democrats wanted to increase minority representation in government, and Republicans realized that compliance with the Voting Rights Act made it easier for them to pack Democrats into “minority” districts and, thereby, make swing districts lean Republicans.

But drawing district lines is merely one way to reduce minority influence.  And, most importantly, district lines play no role in state-wide race.  To reduce minority influence in state-wide races, you need to keep minorities from voting.  And, while the Voting Rights Act clearly bars the blatant techniques like literacy tests which can be directed at minority voting, the question has remained about techniques which merely make it more difficult for minorities to vote.

Unfortunately, we now have a generation of Republican lawyers who have been hostile to the Voting Rights Act in the majority on the Supreme Court.  And we saw the results this week in a decision out of Arizona — Brnovich vs. Democratic National Committee.   This is not the first time that the issue of the meaning of Section 2 and the test that Congress wants the courts to use in analyzing Section 2 claims has been before the Supreme Court.  The original version of Section 2 merely barred practices which states were using to abridge the right of minority groups to vote.  After the Supreme Court interpreted that provision as only barring practices upon proof of a discriminatory intent, Congress amended Section 2 bar practices which “result” in the abridgment of the right of minorities to vote. Continue Reading...

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The Supreme Court and the War on the New Deal

By tmess2 | Published June 27, 2021

Back when I was in law school, the fringier aspects of conservative legal thought were laying the ground work for attacking several key doctrines of the New Deal.  Now those fringier elements are at the core of the conservative theory, and we are seeing the fruits of those efforts.  This week, there were several key decisions by the Supreme Court in cases dealing with the “Administrative State” and labor unions.

Prior to the New Deal, the Supreme Court had stood in the way of attempts empower executive branch agencies.  By the 1940s, the Supreme Court had made several key decisions that allowed independent agencies and executive branch departments to operate.  These decisions included:  1) limiting the scope of the non-delegation doctrine (the doctrine that Congress could not delegate the power to make laws to administrative agencies); 2) deference to the decisions of executive branch agencies; 3) the  existence of independent agencies (agencies whose heads could only be removed for cause); and 4) quasi-judicial administrative hearings in which “administrative law judges” reviewed the claims of parties with their decisions reviewed by courts rather than political appointees.  In recent years, we have seen cases calling into question all of these doctrines.  This week, we got decisions in two cases involving two of these issues.

Up first is Collins.  This case, in which Justice Alito wrote the majority opinion, is the latest involving the independence of executive branch agency heads.  For certain agencies, Congress has attempted to protect the agencies from political interference by giving the agency head a set term with the president only being able to remove that appointee for cause.  This case involves some of the reforms enacted in response to the mortgage crisis.  The specific statute created the Federal Housing Finance Agency as part of the rescue of two private companies — the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Association (Freddie Mac) — to oversee those two corporations.  The agency is managed by a single director who is removable for cause.  Part of this director’s authority is to act as a receiver for these two organizations.   In that capacity, the director negotiated changes to the terms of the loan that the U.S. Treasury made to Freddie Mac and Fannie Mae.  Because these two organizations are technically private organization (although chartered by the federal government to serve specific roles in the housing market), they have private investors who sued to challenge the renegotiated agreement.  Following up on prior decisions, the Supreme Court continued its war on limitations on the power of the president to remove an  agency head.  At some point, this war will have serious policy impact when a president chooses to remove an agency head for following the law and replaces that agency head with somebody who will not follow the law. Continue Reading...

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Supreme Court — The Final Week (Updated)

By tmess2 | Published June 26, 2021

This past week was a busy week with the justices issuing eleven opinions which means that there are only five cases left to be decided — two of which are extremely significant.

As discussed in last week’s post, the Supreme Court tries to keep assignments to each justice balanced both within each month and as the term progresses.  That gives us a clue as to which justice could have an opinion.  But within each month, once you have identified the candidates, it is pure speculation as to which justice seems most likely to have the opinion.  And as we have already seen several times this term, trying to guess which justice will get assigned the opinion from the potential candidate will often be wrong.  For example, last week, I guessed that Chief Justice Roberts was most likely to have Brnovich (the voting rights case) from February.  While the Chief Justice did have a February opinion, it ended up being Arthex — a patent case involving the Appointments clause.  Similarly, many had the Chief Justice writing the Obamacare case from November with the Justice Alito writing Fulton, but Justice Breyer got the Obamacare case and the Chief Justice got Fulton.  

The big question is how many opinions each justice will get.   With fifty-four opinions and nine justices, each justice in theory should have six opinions.  But Justice Barrett started one month late.  Currently, Justice Thomas has seven opinions which means that, at least one justice should have five opinions).  So far, Justice Barrett has been one opinion behind the pace for the entire term (one through November, three through February).  As such it seems like Justice Barrett will end up with five opinions for the term with Justice Thomas having the extra opinion and the remaining justices having six opinions each.  The problem with that theory is that Justice Breyer had the extra opinion in October/November and Justice Thomas did not pick up the extra opinion until April.  So does Justice Breyer still have one opinion left (in which case he is due for one in the December-February period and some other justice besides Justice Barrett only has five opinions)? Or did that extra opinion migrate over the course of the term (in which case any justice with only five opinions for the term could be the justice who had the extra opinion at the end of February)? Continue Reading...

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Supreme Court — Two Weeks to Go

By tmess2 | Published June 20, 2021

As I noted in my post on Thursday’s decisions, we are nearing the end of the active part of the Supreme Court term.  (Technically, the term starts in October, but the Supreme Court is in recess over the summer barring any emergency case.)  While the Supreme Court does not list opinion days far in advance, they have fifteen argued cases left to decide.  Based on past practice, we are likely looking at four to six opinion days over the next two weeks to wrap everything up — likely Monday of both weeks and Thursday of this week with the other dates depending on when things are ready.

The easy part of this post is that the Supreme Court has now wrapped up October and November.  And we have most of the cases from December and January.    But this year’s docket offers several complications.  First, while the Supreme Court tries to keep each month’s opinion assignments balanced (and the term as a whole balanced), we have multiple months with fewer than nine opinions.  Second, we have several unsigned opinions from December and two opinions that covered multiple argued cases.  Third, Justice Barrett did not start until the November docket.  Based on what we know, there should be six opinions per justice (54 signed opinions for the term.)  As Justice Thomas has seven opinions, it looks like Justice Barrett will only have five opinions.

October and November had 18 cases which should have meant two opinions per justice which held true for every justice except Justice Breyer who had three opinions and Justice Barrett had one opinion which seems to reflect that Justice Breyer picked up the extra October opinion that would have gone to Justice Barrett.  (Justice Breyer may end up with seven opinions and somebody may have lost an opinion in light of Justice Thomas’s seven opinions or the court might just have altered who got the extra case as the term went along.) Continue Reading...

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Supreme Court — Thursday Blockbusters

By tmess2 | Published June 18, 2021

Normally, at this time of the year, I am posting a look at the big cases to be decided in the last two to three weeks.  I got a little delayed this year by the redistricting posts, and  The Supreme Court beat me to the punch by releasing two of the biggest opinions of the term  — Texas vs. California and Fulton vs. Philadelphia.  

Texas is the latest, and hopefully last, round of the Republicans attempts to use the courts to accomplish what they can’t do in Congress — repeal the Affordable Care Act.  The latest theory was that, by repealing the tax penalty that is part of the individual mandate, Congress effectively repealed the entire Affordable Care Act.

Understanding the issues in the case requires a brief detour into the back history of the case and some basic things that most lawyers learn in law school (but which the dissent kindly forgets).  Before the New Deal, there were a lot of doctrines that a conservative Supreme Court used to block progressive legislation.  And, as will be discussed in the post on the remaining cases, it is important to understand that many in the Federalist Society think that the “Old Court” got it right and oppose the changes that the Supreme Court made in the 1940s to those doctrines.  One of those changes was a much broader definition of the power of the federal government to regulate economic matters under the Commerce Clause.  And when the Affordable Care Act was enacted, most thought that the individual mandate was authorized by the Commerce Clause.  And when the Republicans first challenged the individual mandate, the defense of the mandate relied, in part, on its significance in the overall scheme.  Unfortunately for the future of the Affordable Care Act, when the Supreme Court first analyzed the Affordable Care Act, the Chief Justice sided with the conservatives on the Commerce Clause issue but was willing to find that it was authorized as a tax.  When Republicans managed to repeal the tax in 2017, conservatives saw an opportunity to use that repeal to take a second run at the individual mandate and the Affordable Care Act. Continue Reading...

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The Chauvin Case and What It Might Mean

By tmess2 | Published April 18, 2021

The Derek Chauvin-George Floyd case is set to go to the jury on Monday.  Last year, Floyd’s death sparked a wave of tense protests across the country, and it is likely that there will be a response to the verdict in this case.

Before talking about the potential impact of this decision, it is important to keep several things in mind as this week unfolds.

First, on Monday, the attorneys for both sides will give closing arguments.  The nature of closing arguments is that it is a chance for the attorneys to point out the key evidence in the case and how that evidence supports the requested verdict.  In part, closing argument also points out why the other side’s evidence is not believable.  After the attorneys are done, the court will instruct the jury.  The instructions basically tell the jury what “facts” they have to find in order to return a guilty verdict.  After that, probably some time on Monday afternoon, the jury will begin deliberations. Continue Reading...

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The Supreme Court and Elections — Post 2020 Editions

By tmess2 | Published March 7, 2021

This past argument session (the February Session) saw the last gasps of the 2020 election.  There were three very different issues on the table:  1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.

On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference).  The second one is a Pennsylvania case involving the issue discussed below.  Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.

The second issue is likely to arise again.  Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues.  Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state.  In recent years, there has been a significant amount of litigation involving these clauses.  There are two key legal questions:  1) what is the scope of “manner”; and 2) what is the “legislature.” Continue Reading...

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Safe Harbor Day — UPDATED

By tmess2 | Published December 6, 2020

Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality. Continue Reading...

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Trump and the Supreme Court (UPDATED)

By tmess2 | Published November 29, 2020

Even though Joe Biden will become President on January 20, Donald Trump is still the president.  Thus, until January 20, the policies of President Trump are still the policies of the U.S. Government, and Bill Barr and Noel Francisco still get to decide what position the U.S. will take in pending litigation

This week, the U.S. Supreme Court returns for its first set of oral arguments since Joe Biden became the presumptive President-elect.    And the session begins with a very big case — Trump vs. New York.  The issue in the case is whether unauthorized immigrants count as part of U.S. population in the census for the purpose of allocating congressional seats and government funding.

The big development on this case is that the Census Bureau will apparently be unable to meet the statutory deadline of late December for reporting the total count due to certain issues that have arisen in finalizing the count.    The U.S. Supreme Court had shortened the time limits on this case to make sure that they could hear arguments on it and issue a decision in a timely fashion.  But if the numbers will not be available until after January 20, and President Biden opts to use the full count, this case could disappear as moot.  I would prefer that the Supreme Court issue a decision upholding the plain language of the Constitution requiring a count of all persons residing in the U.S., but, as long as the Republicans attempt to manipulate the numbers fails, I can live with a non-decision. Continue Reading...

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Affordable Care Act Back at the Supreme Court

By tmess2 | Published November 8, 2020

Now that we know that our long national nightmare is almost at an end, it’s time to return to looking at the mess that he has left behind.  And on Tuesday, the Supreme Court will be looking at one of the messes that Trump created — the continued validity of the Affordable Care Act.

While the exact issue arises from the “Cut Trump’s Taxes” tax legislation passed in 2017 by some very unusual procedural maneuvers, the core of the issue comes from the Court’s decision upholding the Affordable Care Act, in part, in 2012.   Extreme conservative lawyers are partially right about that decision.  It was an atrocious decision, but not for the reasons identified by the far right.

For seventy-five years, from 1938 to 2012, the Supreme Court had taken a very expansive view of the Commerce Clause (which allows the federal government to regulate interstate and foreign commerce) and the Necessary and Proper Clause (which allows the federal government to pass legislation that is related to the fields expressly allocated to the federal government).  This interpretation is what allows the federal government to criminalize the growing of marijuana for personal use or street level drug offenses.  Somehow, the Supreme Court decided that even though people with health insurance (or without health insurance) may travel in interstate commerce and have to use that insurance in other states, the individual mandate was not authorized by either the Commerce Clause or the Necessary and Proper Clause.  Now, if the Supreme Court had struck down the Affordable Care Act (requiring the average American to purchase health insurance), Congress would have had to turn to an alternative like a single payer system.  So, the Chief Justice wanting to both deliver a victory for the far right (by selectively restricting the scope of the Commerce Clause) without destroying the insurance industry found an alternative justification for the Affordable Care Act — classifying the individual mandate as a tax authorized by Congress’s power to raise taxes. Continue Reading...

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