Category Archives: Judicial

Can Justices Get the Issues that they Want

During her confirmation hearings, soon-to-be Justice Amy Coney Barret conveyed the impression that Supreme Court justices do not control the issues that come before them.  This impression is only very slightly true and is mostly false.

The Constitution does limit court to deciding cases and controversies.  A judge does not get to wake up in the morning and say that today I am going to look at absentee voting rules in Texas.  Instead, the judge must have some party bring that case.  But, there are two ways that judges, especially Supreme Court justices, can influence what cases are brought to them.

First, the United States Supreme Court is mostly a discretionary court.  In other words, the Supreme Court gets to choose what cases they take.  If four justices want to look at Second Amendment issues, the Supreme Court will take a Second Amendment case.  The justices, for the most part, understand that there are certain circumstances where they should take a case.  Thus, you have a lot of cases involving issues of federal statutes on which the lower courts have split.  But, for the most part, it is up to the justices how many abortion or civil rights or Fourth Amendment or Free Speech cases they take. Continue Reading...

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Election Cases

Right now we are in the midst of phase one of election cases.  Here are some basic to understanding the disputes that are currently occurring and may occur over the next several weeks.

As noted in previous posts on legal issues and elections, the United States is big on the concept of federalism.  There is a very sharp, but not absolute, division between state law and federal law.

For the most part, election law is a matter of state law.  As such, many election disputes occur in state court.  For an election dispute to go to federal court, there has to be a federal issue.  Since only a handful of federal statutes restrict state discretion on federal elections, most federal cases involve a claim that the state election law implicates the United States Constitution (most frequently, the Equal Protection Clause of the Fourteenth Amendment).  This division between state court and federal court can be rather significant for this first phase of election case. Continue Reading...

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Census Talk

With a little less than two weeks to go before the election, developments concerning the 2020 Census are likely to get buried beneath the latest nonsense spouting from our President.  But the 2020 Census is going to be a very big deal next Spring, and what happens between now and January could have a significant impact.

The main purpose of the Census is to provide population figures for use by Congress in apportioning house seats to the states and for use by the states (and local government) in then drawing district lines for everything from congressional seats to city council seats.  As a secondary effect, some government grants to states and localities are also based on population.

Typically, the Census can be viewed as having three phases.  Phase One has historically been conducted by mail  — sending forms to every residential address and having the residents complete those forms.  This year, this phase was modified to allow people to respond on-line, but the essence of this phase remains the same in terms of it mostly relying on voluntary participation.  Phase Two is the field operation.  In this phase, workers go to residences that did not respond to try to get answers to the census by personal contact.  Finally, Phase Three is the compilation of this data. Continue Reading...

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The Confirmation Hearings

In the past five years, we have seen the Turtle (Senator Mitch McConnell) go from the unprecedented blocking consideration of a Supreme Court nomination made eight months before an election change into the Hare trying to force an unprecedented vote on a Supreme Court nomination made after Labor Day prior to the election.  While the Senate did not have to approve the nomination of Merrick Garland in 2016, the very rules that the Republicans are relying on now to justify their consideration of Amy Coney Barrett mandated giving Judge Garland a hearing and a vote (at least a procedural vote).   And given the modern procedures, giving Judge Barrett a vote before the election requires cutting the process short.  The simple fact is that conservative Republicans are trying to pack the court.  While, barring some type of miracle, Democrats will not be able to prevent a vote from taking place before the election, there are some issues that should be front and center at the confirmation hearings that will take place this week.

At the top of the list is health care.  While the nominee will probably try to evade the question, it is important to make crystal clear that — if confirmed on the current schedule — Judge Barrett may be the one vote that removes the current protection for people with preexisting conditions.  In the November argument session, the Supreme Court will consider the constitutionality of the Affordable Care Act.  This case arises from the 2012 decision upholding the Affordable Care Act.  In that decision, after rewriting the law to avoid finding that the Affordable Care Act was authorized by the impact on interstate commerce, the 5-4 majority found that the individual mandate was authorized as a tax.  When the Republican Congress failed to repeal the entire act but did repeal the tax, Texas and other red states filed the current suit alleging that the repeal of the tax also repealed the individual mandate and the rest of the Affordable Care Act.

While Judge Barrett will probably try to avoid talking about the merits of the case (as she will be sitting on the Supreme Court when this case is heard), she should be at least forced to explain her approach to one of the key issues in the case.   That issue is “severability.”  Stripped of legal jargon, severability is about whether one invalid clause in a bill or statute requires the courts to reject the entire bill.  Under most of the recent decisions, there is no plausible basis for the Supreme Court to strike the entire Affordable Care Act because Congress expressly decided to repeal one part and leave the rest intact. Continue Reading...

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The Electoral College and Election Law

In recent weeks, there has been a proliferation of articles on how President Trump could effectively change the rules after the election if it appears that he is likely to lose.  For now, I am putting to the side the possibility of an actual coup in which he prevents the new Congress from meeting and certifying a Biden-Harris win or prevents Joe Biden from taking the oath of office after being certified as the winner.  I just don’t see the circumstances in which members of the military or the Secret Service or the D.C. police force would participate in such an extreme stance.  So I will limit myself to an attempt to change the legal winner of the election.

For federal offices, including the president, there are three main sources of law governing the election of such officials– the Constitution, federal statutes, and state laws (which can be the state constitution, state statutes, or state regulations).

Most of the arguments for legal manipulation are based on past history and a misreading of the Constitution.  There are two key provisions in Article II of the Constitution.  First, the electors are chosen “in the manner that the Legislature shall direct.”  The key thing about this provision is that it says that the Legislature directs the manner of choosing the electors.  It does not say that the state legislatures get to choose the electors.  While, in the early days of the country, some legislatures opted to have the legislature actually choose the electors.  that was because the legislature opted for that mechanism.  Today, every state has opted to choose the electors through a popular vote.  While the legislatures could theoretically change the manner of choosing electors, I will get back below to why this will not happen. Continue Reading...

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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. Continue Reading...

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The Ginsburg Vacancy and the Future of the Supreme Court

The death of Justice Ruth Bader Ginsburg occurs when our country was already at a crossroad.  By historical accident, there has been a “Republican” majority on the court since 1972.    For the past thirty years, there has been a movement among conservative interest groups and supportive lawyers to rewrite the Constitution to undermine the protection given to constitutional rights during the Warren Court and to undermine the legal consensus that arose from the New Deal era.

The Constitution says very little about the structure of the judiciary.  It says that there will be a  Supreme Court with some cases on which the Supreme Court has original jurisdiction.  For the most part, however, the Constitution left it to Congress to fill in the details.  And, while the justices are appointed by the President with the “advice and consent” of the Senate, the Constitution is silent on the details of the confirmation process.

The latter issue is currently front and center.  When there was a vacancy in February 2016, Moscow Mitch cited a non-existent Biden rule as barring any confirmation hearing in a presidential election year.  This year, Moscow Mitch has put forth a modified version of the rule holding that confirmation hearings are only barred if the Senate is controlled by the opposing party.  Of course, that is not a principled rule.  It is a rule about power.  Namely, that the Senate majority gets to do what it wants regardless of what is in the best interest of the American people. Continue Reading...

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October Term 2020 — Supreme Court Preview (Part One)

Last night, Justice Ruth Bader Ginsburg lost her fight against cancer.  In the upcoming days, much will be written commemorating her long fight for justice.  Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents).  But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer.  The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.

Before starting a look at the cases on the docket, three key things to note.  First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal).  That creates the possibility of a 4-4 tie.  In the case of a 4-4 tie, there are two options.  On the one hand, the Supreme Court can “affirm by an equally divided court.”  Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases.  On the other hand, the Supreme Court can set the case for re-argument when there is a full court.  It is really up to the justices to decide which option to take.   Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant.  Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney.  The audio from these arguments will be livestreamed by several news organizations.

October is likely to be the calm before the storm.  Back last Spring, the Supreme Court had to cancel the March and April argument sessions.  The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session.  That left about half of the cases that would have been heard in March or April on the docket.  Those cases are being heard in October.  The biggest case in October is probably the first case up for argument — Carney v. Adams.  This case arises from Delaware.  Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party.  So, on a seven judge court, there would likely be four Democratic judges and three Republican judges.   The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants. Continue Reading...

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Trump Law Update

You know that something is wrong when you have to watch the appellate courts to know what is happening in the White House.  And this week has already seen several interesting rulings.

The biggest — because it is from the full U.S. Circuit Court for the D.C. Circuit — concerns the Michael Flynn case.  As you may recall, Michael Flynn (National Security Advisor for a day) pleaded guilty to charges of lying to federal agents as part of the Mueller investigation.  After Mueller wrapped things up and turned things over to the career prosecutors, William Barr became Attorney General of Trump and decided to start undoing what he could of the Mueller investigation and prosecutions.  Rather than proceeding with sentencing of the admitted criminal, A.G. Barr is willing to allow Flynn to withdraw his plea on a flimsy theory and then dismiss the charges.  Because this seems fishy and motivated by something other than normal prosecution operations, the judge who took Flynn’s plea decided to appoint an attorney as amicus curiae (literally friend of the court) to brief why the plea should stand and the request to dismiss the case should be denied.  (This procedure is not unusual at tbe appellate level.  Typically, once or twice a year, the Supreme Court will appoint an attorney to defend a lower court decision when both sides contend that the decision below was erroneous.  Rarely does the appellate court side with the amicus, but it does make sure that the best arguments in favor of the lower courts decision are heard.)

Mr. Flynn and his friends in the administration did not like this road bump in their attempt to wipe away any incentive for Mr. Flynn to decide to start telling the truth about his ties to Russia; so Mr. Flynn filed what is called a petition for writ of mandamus (essentially an order directing a lower court or government agency to do a specific act which contrasts with an injunction which orders a party not to do something).  Mr. Flynn got very lucky with the initial panel assignment somehow ending up with the two Trump appointees to the D.C. Circuit on his three-judge panel.  And the initial panel voted 2-1 to grant the petition and order the trial judge to grant the motion to dismiss.  The rest of the judges on the D.C. Circuit on their own motion decided to take the case from the panel and conduct a rehearing “en banc” (that is in front of all of the regular judges of the court).  On Monday, the full D.C. Circuit issued its ruling — an 8-2 decision denying the petition. Continue Reading...

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Pardon this Interruption

Pardon this interruption to the viewing of tonight’s speeches from President Obama and Senator Harris, but the United States Supreme Court has, in its unintentional way, given us a reminder about what this election is about.

Today, the United States Supreme Court announced its November argument session.  That session begins on November 2, the day before the election, and continues until November 10.   (While the argument session usually has six argument days, the last day would fall on Veteran’s Day; so there will only be five argument days.)

While the United States Supreme Court normally tries to avoid doing anything overtly political on election day, this year’s docket brings political issues to the center more than some on the Court would probably like.  While one of the two cases being heard on election day is a typical federal criminal law statutory dispute of the type that puts non-lawyers to sleep, the other case (Jones vs. Mississippi) is a continuation of the Supreme Court’s examination of what sentences are appropriate for juveniles tried as an adult. Continue Reading...

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