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Recent Posts
- Election Night Preview — Part Five — The Local News and the West Coast (11:00 To 11:59 P.M. Eastern)
- Election Night Preview — Part Four — Prime Time Hour Three (10:00 to 10:59 P.M. Eastern)
- Election Night Preview — Part Three — Prime Time Hour Two (9:00 To 9:59 P.M. Eastern)
- Election Night Preview — Part Two — Prime Time Hour One (8:00 to 8:59 p.m. Eastern)
- Exit Polls and Projections
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Tag Archives: Chief Justice John Roberts
Supreme Court Update — Appropriations and Redistricting
We are at that point of the Supreme Court terms when we are waiting for the other shoe to drop. All the arguments and briefing for the term is done, and what is left is for the opinions to slowly drip out. For now, the Supreme Court is only holding one opinion day per week. That will be changing soon.
In May, we tend to get the older cases (October, November, and December) that have multiple opinions and newer cases (March and April) that were “easy” unanimous decisions. As we get later into June, we will get the 5-4 decisions from February, March, and April, and the number of cases will pick up.
So far, in May, there have been three opinion days (with one more set for this Thursday). On those opinion days, we have gotten, two, three, and three opinions. With eight opinions down, we still have approximately thirty-five opinions (approximately because there are a few cases that could be consolidated) left to come over the next five weeks. That number is why we are likely to get multiple opinion days per week in the latter part of June as we need nine to twelve opinion days.
Posted in Judicial
Also tagged Appropriations Clause, Bankruptcy, Chevron deference, Consumer Finance Protections Bureau, Equal Protection, Free Speech, Immigration, income tax, opioids, Originalism, Purdue Pharma, Second Amendment, Securities and Exchange Commission, South Carolina, Supreme Court, textualism, Voting Rights
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The Texas Abortion Law and the Supreme Court
As is typically the case with legal news, it is very possible to follow the main stream media and get a very inaccurate perception of what is happening in the courts. This misreporting isn’t intentional, it’s just that most reporters are not lawyers and thus miss the details that matter. This past week, the United States Supreme Court denied a stay application related to a new Texas statute that bars abortion after the sixth week of a pregnancy and allows private individuals to enforce that bar by filing a civil case against anybody who aided the woman in getting the abortion — with the remedy being a $10,000.00 payment from the defendant to the person bringing the case. Given the news coverage, I have three comments.
First, most of the impact of the law will come from its nuisance value. The actual age of a fetus is an estimate. Barring some other method that gives a more accurate estimate, gestational age is estimated based on a woman’s last menstrual period (which assumes a regular menstrual cycle and not all women have a regular cycle). Even the woman herself may not know the exact date of conception (unless she only had sex once since her last period). And in the early stages of pregnancy (and most abortions occur in the first trimester), it is impossible for the average person to know the gestational age of the fetus by simply looking at the woman. So unless the woman tells her friend who is driving her to the doctor’s office that she is ten weeks pregnant, the friend will have no idea that the gestational age is beyond six weeks. While I haven’t read the full statute, it seems at first glance that it will be hard for plaintiffs to win. But, particularly for abortion providers, the new statute will mean that they are regularly in court with significant legal expenses and average people might be reluctant to help their friends given the expense of defending against these claims.
Second, the empowering of private citizens to bring claims on behalf of the government is not new. The exact way that these cases will work might have some new wrinkles, but there is an established legal procedure known as qui tam (a shortened title for a latin phrase that translate as “he who sues in this matter on behalf of the king as well as for himself”). As the reference to the king in the translation hints, this procedure is quite old. Usually, in the U,S., qui tam statutes involve allowing those with inside information to bring fraud claims on behalf of the government. If certain legal requirements are met, the successful qui tam plaintiff splits the recovery with the government. Even without the precedent of qui tam, however, it is clear that any legal claim is state action for the purpose of constitutional law which is why libel suits are restricted by the First Amendment.
Posted in Judicial
Also tagged Abortion, Justice Brett Kavanaugh, Justice Ruth Bader Ginsburg, qui tam, stay, Supreme Court, temporary injunction, Texas
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Supreme Court Term Preview — October 2019 Term (Part I)
It’s that time of year again. October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments. This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions. Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.
(For a little explanation of what I mean about argument sessions and filling them. From October through April, the Supreme Court has seven argument sessions. Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays. A “normal” argument day consists of two arguments on two cases. Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position. Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session. A Supreme Court case has two rounds of written arguments. The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari. These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take. While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions. If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument. The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of. Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better. So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June, And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session. Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)
At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions. While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible). Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term. Any attempt to guess what is likely to be granted is highly speculative. The Supreme Court accepts about 1% of the cases for actual full review. Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review.
Posted in Civil Rights, Judicial, LGBT
Also tagged employment discrimination, Justice Anthony Kennedy, Justice Brett Kavanaugh, Puerto Rico, Sexual Orientation, Supreme Court, Title VII
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Supreme Court and Abortion Politics
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.
Posted in Judicial
Also tagged Abortion, Afforcable Care Act, Justice Anthony Kennedy, Religious Freedom Restoration Act, Supreme Court
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