Tag Archives: civil rights

Supreme Court — October 2022 Term — First Look at the Remaining Cases

By tmess2 | Published June 4, 2023

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

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Supreme Court Mid-Term Update

By tmess2 | Published January 7, 2023

As a New Year starts, the Supreme Court returns on Monday for the first of four argument sessions.  This term is already shaping up as a weird term.  By the fourth argument session of the term, you typically have at least one opinion from an argued case and a handful of opinions granting summary reversals in cases in which the lower courts clearly erred.  While the bigger “political” cases normally take longer, the Supreme Court also takes “routine” cases that simply involve conflicting interpretations of statutes and regulations by different circuits.  It is not unusual for these cases to be resolved by unanimous opinions.  Maybe it’s just that none of the October cases (with the exception of the Andy Warhol case) fits that criteria, but the lack of an opinion is unusual.

At this point, the first half of the term saw some rather significant cases that will undoubtedly get attention when they are decided — the Voting Rights Act dispute regarding Alabama’s new district lines and the failure to create a second majority minority district (which will also impact the lines in Florida, Georgia, and Lousiana); the challenges to the Affirmative Action programs at Harvard and the University of North Carolina; the challenge to the Indian Child Welfare Act; challenges to the ability of Immigration and Customs Enforcement to set priorities related to deportation; whether state courts can use state constitutions to regulate congressional redistricting; and whether there is a free speech exception to civil rights laws (specifically those barring discrimination based on sexual orientation).

The January session should be relatively quiet.  There are two labor cases on the docket — one involving the weird hybrid status of certain national guard employees and whether that hybrid statute makes them subject to certain protections for federal workers and the other whether an employer can maintain a state tort against a labor union for timing the start of the strike to damage the property of the employer. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 2)

By tmess2 | Published September 28, 2022

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

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Senate Bill 8 and the Supreme Court

By tmess2 | Published October 31, 2021

This week, the Supreme Court will take up issues related to Texas’s new abortion law — Senate Bill 8.  There are several key things to know about this case.

First, this case has been expedited.  The Supreme Court turned down the request for a stay and granted review on the  “merits” on October 22.  The  Supreme Court ordered the parties to file the written arguments on the merits by October 27.  The Supreme Court will be hearing argument on November 1, just ten days after granting review.  By contrast, the “normal” schedule set forth in the rules (which is typically condensed somewhat for cases in which review is granted between October and January) establishes a minimum of 115 days between the grant of review and argument.  This expedited hearing, probably represents a compromise between the Justices that wanted to reinstate the trial court’s stay of the law and those that wanted to take this case in the ordinary course of Supreme Court review.

Second, the Supreme Court permitted the parties to bypass the Court of Appeals.  While the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) has issued rulings on the stay entered by the trial court, it has not yet ruled on the merits of the case.  The Rules of the Supreme Court permit parties to ask to bypass the appellate court (a petition for certiorari before judgment), but the Supreme Court rarely grants that request.  Again, this decision probably represents a compromise between those that wanted to grant the stay (which would have been in effect until the Fifth Circuit decided the case) and those that wanted things to proceed in the ordinary course of review.   It may also reflect the view that the Supreme Court has of the Fifth Circuit.  There are several circuits known for their tendencies in litigation.  There are three or four perceived to be ultra liberal with the Supreme Court needing to frequently correct them.  The Fifth Circuit has the same reputation for being ultra conservative and has been frequently reversed on abortion cases.  Given this reputation, the Supreme Court may have decided that there was no need to see what the Fifth Circuit would write. 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 Supreme Court and Immigration

By tmess2 | Published July 1, 2017

The Statue of Liberty stands as a symbol that this nation was built on immigration.  This past term (and apparently this upcoming term) immigration was a significant part of the Supreme Court docket.  Of the eight cases involving immigration or the border, the Supreme Court issued decisions in five, sent one back to the lower courts (in light of one of the four decisions), and set two for re-argument in the fall (as both were argued before Justice Gorsuch joined the bench, the implication is that there was a 4-4 split or that the majority lacked a consensus on the legal theory for the result).  In addition, the Supreme Court is going to hear argument on the travel ban.

Going in chronological order, at the end of May, the Supreme Court issued a decision on the crimes that trigger deportation — narrowly interpreting the statute to limit the state offenses that trigger deportation.  The decision involved charges of sexual abuse against minors with the court defining minor as under 16 and requiring that the state offense be limited to minors under sixteen.  On the cases that were decided, as discussed in an earlier post, the Supreme Court struck down the law governing birth citizenship when a child is born abroad to parents with split citizenship (i.e. one is a U.S. citizen and the other is not) because the law discriminated based on the gender of the U.S. citizen.

In the next to last week of the term, the Supreme Court issued three more decisions.  The first case — involving a challenge to immigrants arrested after 9/11 — technically was not about immigration but about the right to sue the government and government official for civil rights violations.  While there is a federal statute authorizing individuals to sue state officials, there is no such statute for civil rights violations by federal officials.  While the Supreme Court has authorized such suits in a limited number of circumstances, the Supreme Court has been reluctant to expand that right.  The Supreme Court found that the claim in the most recent case were not similar to the previously recognized claims and decided that it was up to Congress to decide whether to enact a statute authorizing such claims.  That decision also led to the decision to send the second civil rights case (involving a cross-border shooting) back to the lower court to review whether it was the type of claim that could be brought.  (The lower court had originally decided the case on the issue of whether it was a civil rights violation.  In sending the case back, the Supreme Court raised doubts about some of that reasoning.) Continue Reading...

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Supreme Court 2016-17-Two Weeks Left

By tmess2 | Published June 17, 2017

One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend.  (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible.  Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.)  That will make for a very packed last two weeks.  It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term.  For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term.  This year, they have only heard 64 cases.  The last two weeks of the terms have seen the court issuing between 9 and 17 opinions.  This year, we still have 17 cases waiting for opinions.  (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)

Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks.  In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22).  But last second “non-substantive” edits that delays the Court’s printshop from having all of  the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term.  (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues.  In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases.  Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case.  In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)

As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term.  Of course, the number of outstanding opinions does make it a little bit harder this year.  The general rule of thumb is that the Supreme Court tries to keep the workload balanced.  With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions.  Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month.  At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch).  If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions.  If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions.  The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around. Continue Reading...

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Supreme Court Preview (Part One): Eight is Not Enough

By tmess2 | Published September 17, 2016

Time for the annual Supreme Court preview.  When we last left the eight, they had punted several significant cases on a 4-4 tie or with very narrow decisions that avoided the main issue in the case.  They had also only granted review on twenty-nine cases for the fall.   The delay in filling the vacancy was clearly causing problems.

Summer at the Supreme Court tends to be quiet.  Most of the summer work is internal.  Parties file the briefs for the fall cases and petitions for review on new cases and responses to those petitions.  The justices and law clerks spend most of their time reading these materials with the clerks writing memorandums summarizing the petitions for the justices and discussing the cases to be heard in the fall with their own justice.  The big actions during the summer are decisions on stay applications and the release of the argument schedule for the fall.

Continue Reading...

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Civil Rights and the Supreme Court

By tmess2 | Published July 12, 2015

Depending on how you define a civil rights case, this past term was, at least, on the surface a very good year for civil rights groups.  I say on the surface because some of the “wins” were only partial wins.  Of the cases most viewed as “civil rights” cases, the side seeking to protect/expand civil rights won 4-6 cases and the only loss was on a procedural issue.

It was a particularly good year if your claim involved religious discrimination.  In Holt v. Hobbs, the Supreme Court found (in a rare win for an inmate) that Arkansas had to permit an inmate to have a half-inch beard under the Religious Land Use and Institutionalized Persons Act.  In E.E.O.C. v. Abercrombie & Fitch, the Supreme Court held that a person suing an employer for religious discrimination need only show that the employer’s perception of the possibility that the prospective employee would need a religious accommodation was one of the factors behind the decision to not hire that person.  (In this case, the applicant was a female Muslim who wore a hijab to the interview.  While the applicant’s religious beliefs were not expressly discussed during the interview, the store declined to hire her based on the belief that she would want an exemption from the company’s policy that employees could not wear any head covering.)

In a very technical decision, in two companion cases out of Alabama, the Supreme Court indicated that — even though preclearance is no longer required — the rules against a racial gerrymander of legislative districts will still have bite.  This case has already had a cascading effect on other reviews of the lines drawn for the 2012-20 elections.  Of course,  the fact that we are on the eve of the third round of elections under these lines is one of the reason why pre-clearance was such a big deal. Continue Reading...

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Supreme Court and Equality

By tmess2 | Published March 25, 2015

Today, the United States Supreme Court issued two opinions, both 5-4 decisions with the majority opinion authored by Justice Breyer, in cases involving equality issues.

The first case, Young vs. United Parcel Service, involved Title VII (precluding discrimination in employment based on race or gender).  Specifically, it involved the interpretation of the Pregnancy Discrimination Act — an amendment to Title VII passed in the 1970s after the Supreme Court had originally ruled that discriminating based on the fact that an employee was pregnant or might get pregnant was not discrimination based on gender.  The generally understood intent of Congress was that an employer could not discriminate against an employee simply because the employee was pregnant or might get pregnant.  The particular provision at issue in the case was the requirement that employers had to treat pregnant workers the same as other workers who are similar in their ability to work or not work.  The employee in this case had a medical restriction due to her pregnancy that limited the weight that she could lift.  This weight limit was less than what UPS expected its drivers to be able to lift; so the employee asked for the company to accommodate her condition, but UPS refused.  The employee claimed that the decision violated Title VII because UPS was willing to make that accommodation for other drivers who had a medical restriction.

The majority (by one vote) decided in favor of the employee.  But rather than following the spirit of the law — requiring an accommodation unless it was unreasonable if the employer granted a similar accommodation to other workers — the majority crafted a balancing test to determine what workers are similar.  Under this balancing test, the fact that an employer was willing to accept a medical restriction for other workers (for example, one who got injured on the job) would merely be one factor in determining whether the distinction that the employer makes between pregnancy and other conditions that require accommodation is based on a  legitimate reasons or whether the reason given seems to be a pretext for discriminating against pregnant women. Continue Reading...

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