Tag Archives: 2020 Census

Supreme Court — The Final Push

By tmess2 | Published June 25, 2019

We are down to the last two (probably) opinion days of the term.  We know that the Supreme Court will be issuing opinions tomorrow (Wednesday).  More likely than not, the last opinion day will be Thursday, but there is still a possibility that it might be on Friday or there could be opinion days on both Thursday and Friday.  For the past several opinion days, there have been four opinions per day which would imply only two opinion days but things could change.

Besides continuing the pace of four opinions per day, Monday was a day of follow-up cases with the two biggest opinions being Brunetti and Davis.  Brunetti involved the law on registering trademarks, in particular a provision barring the registration of immoral or scandalous trademarks.  Following up on Tam which had struck down a provision barring the registration of disparaging trademarks, the Supreme Court unanimously struck down the bar on immoral trademarks and by a 6-3 vote struck down the bar on scandalous trademarks (although some justices suggested Congress might be able to adopt a narrower bar on profane trademarks that might survive review).  Davis involved the “residual clause” — a clause placed in several criminal and immigration laws as a catch-all to the definition of violent crimes which includes crimes that by their nature involve a substantial risk of the use of physical force.  In several previous cases, the Supreme Court has found that particular versions of this clause were “void for vagueness.”  In Davis, the Supreme Court struck down the residual clause in the statute barring the use of firearms in a violent crime.

With eight cases left, the tea leaves are becoming clearer.  And that is generally not good news.  We have one case left from each of the December, January, and February argument sessions.  There are three cases left from March (although it is possible that the two partisan gerrymandering cases will be consolidated).  Finally, there are two cases left from April.  Continue Reading...

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The Supreme Court and the Census

By tmess2 | Published April 18, 2019

If you have been a follower of this site since the beginning, you know that we think that the Census and redistricting are very big things.  Getting an accurate count and fair lines tends to help the Democrats win elections. 

At the same time, we have also been big followers of the Supreme Court.  For good or evil, both sides of the political spectrum have learned that, if you lose the battle in Congress or with an executive agency, you can turn to the courts to continue the battle.  And many of these fights ultimately get decided by the Supreme Court.

By the time that this posts, we will be at the end of the first week of the last argument session of the October 2018 Term.   (For brief explanation of argument sessions and review process, see appendix.)  On Tuesday of next week, the United States Supreme Court will hear a case that combines our focus on the Supreme Court and our focus on the Census — U.S. Department of Commerce vs. New York.  Continue Reading...

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Supreme Court: Mid-term Update

By tmess2 | Published January 6, 2019

The  Supreme Court is set for a somewhat early start for its January arguments session.  While the Supreme Court has yet to release its calendar for the March and April argument sessions, we do have some idea of the general numbers for the remainder of the term.  There will be ten new cases (and one reargument) in January, eight new cases in February, and up to nine in March.  There are still some opportunity to add cases to the April docket, but for now there are four additional cases that could be set for argument in April.


Starting with the rearument case for January, that case is a Takings Clause case.  In 1985, the U.S. Supreme Court essentially held that a person claiming an improper takings without adequate compensation had to pursue their claim for adequate compensation in state court.  Because every state provides a mechanism for litigating the adequacy of compensation, this requirement essentially eliminates the ability to raise the federal aspect of the claim in federal court.  Conservatives do not like this rule and have been questioning it since it was created.  This case was originally argued in front of an eight-justice court in October.  Then it got set for re-argument in January.  While the order scheduling the case for reargument includes the fig-leaf of requesting additional briefing on a point raised during the first argument, it doesn’t take a rocket scientist to guess that the justices were split 4-4 and that it is now up to Justice Kavanaugh to break the tie. 

Also up for argument in January is Merck.  As the party name should suggest, this case is about pharmaceuticals.  Federal law controls the contents of the warnings that a drug company must give about the side effects, but that law also requires the drug companies to provide adequate information to the FDA.  If the company complies with these rules and the FDA determines that the label need not warn about a potential side effect, then injured patients may not bring a cause of action based on the failure to warn.  The problem is that the FDA does not always provide a conclusive rejection of any warning and merely turns down the warning as drafted.   The injured patients are contending that the rejected warning was poorly drafted and that a properly drafted warrant might have been accepted.  As such, the company may not use the rejection of its warning to bar a claim based on a slightly different warning. Continue Reading...

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