Tag Archives: Abortion

Supreme Court — The COVID-19 Term (Updated)

By tmess2 | Published June 26, 2020

In normal years, the Supreme Court would probably have wrapped up business for the term by now.  It has been a long time since the last time that the Supreme Court was still issuing opinions in an argued case after June.  There is still a chance that the Supreme Court might finish this term by June 30, but we are getting mixed messages from the court.  (I do expect to see opinions in all of the cases before the Supreme Court recesses, but there is a chance that some cases could be set for reargument in the fall.)

On the one hand, we have yet to get any opinions from the May arguments.  While the May arguments were two weeks later than the usual time for the April arguments, it is usual to have some of the April opinions by the early part of June.  We also have not seen the pace of opinions pick up.  In the last weeks of the term, it is not unusual to see three or more opinion days per week, and multiple opinions on each opinion day.   At the present time, while we have had second opinion days for the last two weeks, we have only gotten a total of five opinions over the last two weeks (as opposed to the more usual eight to ten opinions per week).  And the Supreme Court has only announced two opinion days for this upcoming week.

On the other hand, the Supreme Court has announced that they will have a conference on Wednesday and release orders on Thursday (rather than the normal Monday order day).  That sounds like Wednesday could be the “wrap-up” conference. Continue Reading...

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Roberts’s World

By tmess2 | Published June 13, 2020

We are entering what would normally be the home stretch of the annual Supreme Court term.  And it is becoming relatively clear that most of the major opinions for this term will be coming from Chief Justice John Roberts.

As we have noted in past end-of-term posts, the U.S. Supreme Court attempts to balance the number of lead opinions that each chamber has.  This balancing occurs in two ways:  within each monthly two-week argument session and over the entire term.  For example, if there are ten cases argued during a given month, one justice will be assigned two cases and the other justices will be assigned one case each.  And a justice who gets two cases in one month will probably one get one case the next month.

By this time of the term, we usually have enough opinions issued to have a sense (not 100% certain because it is possible that a 5-4 case may flip after the first draft of the tentative majority opinion and the tentative dissent are circulated) of who probably has the case.  This year, we have almost all of the cases from October, November, and January and all of the cases from December.  While we only have about half of the cases from February (and obviously none from May), the look from the first four arguments is somewhat conclusive. Continue Reading...

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Supreme Court Preview: October 2019 Term (Part IV) (EDIT — 10/5)

By tmess2 | Published September 28, 2019

As noted in Part I, the Supreme Court has yet to issue the calendar for its January argument session.  However, for the first time in several years, the Supreme Court has ten cases left over after the December argument session; so there are enough cases already granted to fill the five days of argument in January 2020.  There is a chance that the Supreme Court might bump some of these cases to one of the later argument sessions, but — for each of these cases — it is more likely than not that they will be heard in January.

Among the cases set for argument, you have the following issues:  1) can the beneficiary of a pension plan seek relief for misconduct by the plan managers without first proving that they have suffered actual loss; 2) whether changes to the Foreign Sovereign Immunities Act (governing when foreign governments can or can’t be sued in U.S. courts) are retroactive; and 3) whether federal employees claiming that the federal government discriminated against them due to age must — similar to private employees — prove that age was a “but for” cause of the adverse employment decision.

There are three potentially big cases for January.  First, there is Kelly vs. United States.  This is the “bridgegate” case from New Jersey.  The ultimate issue is whether a public official who uses false statements to create the pretense that their order to employees is legal is guilty of defrauding the government (by wasting public resources). Continue Reading...

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Update on Missouri’s Anti-choice laws

By tmess2 | Published July 14, 2019

With so-many Republican-controlled states passing laws designed to make abortion illegal, it’s going to be hard over the next several years to track what is happening with each of these laws as they potentially make their way to the Supreme Court.  (And the moderate conservatives are going to try to avoid this issue as long as they can.)  But I can, at least, track what is happening at the local level.

Missouri passed one of these laws this year — House Bill 126,

First, some brief background on Missouri’s legislative process.  Missouri’ legislature meets in an annual session that runs from early January until mid-May (technically, the session ends at the end of May, but all work on legislation must end by mid-May with the last two weeks for the Speaker/President Pro Tempore to sign the official copies of the bills that pass).   The Governor then has until Mid-July to sign or veto the bills (with an earlier deadline for bills passed early in the session).  The Missouri Constitution generally treats an unsigned bill as if the Governor had signed it.  (In other words, the Governor can’t block a bill by leaving it unsigned.)  Generally speaking, new laws take effect on August 28, but — by a  two-thirds vote in both Houses — the legislature can agree that there is an “emergency” for having it take effect at a different time. 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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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...

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Supreme Court Midterm Report

By tmess2 | Published January 26, 2016

When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone.  The first argument day of each term is always the first Monday in October.  There are other key points in the term, but they float a bit.  One of those floating dates is the Monday after the last January argument.  That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules.   Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case.  Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October.  That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June.  With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.

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Supreme Court and Abortion Politics

By tmess2 | Published November 15, 2015

Over the last two weeks, the United States Supreme Court has granted review in two sets of cases that will bring the abortion issue to the front and center of the opinions likely to be issued in May and June of 2016 and thus into the presidential campaign.  How the Supreme Court addresses these issues will determine who sees a need to win the election to protect their rights.

The first set of cases involve the Affordable Care Act and the Religious Freedom Restoration Act.  In 2014, the Supreme Court decided to view the coverage requirements of the Affordable Care Act from the perspective of the employer paying for coverage rather than from the employee deciding how to use that coverage.  Viewing the scope of coverage from the perspective of the employer, the Supreme Court decided that a mandate to purchase coverage which included benefits for contraceptives would substantially infringe on the religious freedom of corporation which had religious objections to such coverage.  (Many of these organizations express the religious belief that certain contraceptives are abortifacients, notwithstanding that from a medical perspective these items are not abortifacients.)  Because there were alternative ways to provide contraceptive coverage to employees, the Supreme Court found that the Affordable Care Act violated the Religious Freedom Restoration Act (which applies a compelling interest/narrowly tailored test to federal laws that substantially infringe on religious beliefs).

Since the 2014 decision, the Department of Health and Human Services has created a form to allow employers to opt-out of paying for coverage.  The form, however, requires the employer to provide information about that employer’s insurance policy that allows the government to pay the additional premium to make contraceptive coverage for the employees of the company.  Several non-profit organizations with religious affiliations object to the form claiming that any cooperation with the government’s provision of such coverage makes the organization an accomplice to the provision of contraceptive coverage, thereby violating the organization’s religious beliefs. Continue Reading...

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Supreme Court Term 2015-16:Part Two

By tmess2 | Published September 26, 2015

When the Supreme Court meets on Monday in what is commonly referred to as the “long conference” (because it covers three months worth of petitions that have piled up during the summer), it will begin the process of filling the second half of its argument schedule — cases that will be decided by the end of June.  As with the cases already set for argument this fall, there will be a mix of criminal cases, routine matters of statutory interpretation, and the politically explosive.  While the criminal cases and the statutory cases are important to practitioners and businesses, it is the politically explosive cases that I will focus on for this blog.

In recent years, the Supreme Court has changed how it grants cases.  In the past, the Supreme Court tended to accept or reject a case immediately (at its initial conference).  However, after several cases had hidden problems (preliminary issues that had to be addressed before the Supreme Court could reach the issue presented in the petition), the Supreme Court has tended to “relist” (postpone consideration to a later conference) the cases that it is seriously considering granting to take a closer look for such potential problems.  In addition, even putting aside the large number of petitions with little or no chance of being granted, there are more cases that raise significant issues than the Supreme Court is inclined to take.

In the current conference, one potentially interesting case involves a criminal prosecution from Puerto Rico.  Generally, federal law recognizes a “dual sovereign” exception to the rule against double jeopardy (that you can’t be tried twice for the same offense).  Thus, for the same course of conduct, a person can be charged by multiple states or by a state and the federal government.  The issue in this case is whether Puerto Rico is a separate sovereign from the federal government.  While legally, this case is probably not a close issue, the impact of the Supreme Court explaining Puerto Rico’s current status (essentially a territory of the U.S. with any home rule being by grace of Congress) could crystalize the debate over Puerto Rico’s status. Continue Reading...

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