As noted in the first part of this series, the highlights of the four-day October argument session are full days devoted to whether the term “sex” in Title VII includes sexual orientation (which might also lead to similar interpretations for other provisions barring discrimination in contexts other than employment) and to the board managing Puerto Rico’s financial issues.  With Veteran’s Day falling on a Monday this year, the November session will only have five argument days — the highlight of which will be DACA day.

DACA is not the only immigration issue in the November argument session.  The first case to be heard in that session in November 4 — Barton vs. Barr is also an immigration case.  That case involves the rules governing deportation.  Overly simplified, certain conduct authorize deportation.  However, an immigration judge can decide to cancel deportation under some circumstances.  One of those circumstances is that the immigrant has been a permanent resident for at least five years and has continuously resided in the United States for seven years.  However, for purposes of calculating that time period, that time stops when the immigrant commits an offense that would render them inadmissible.  The issue presented in Barton is whether a person who is not seeking admission can be rendered inadmissible.  (The paragraph governing “time stops” applies to both the provisions governing lawful permanent residents — who do not need to seek admission — and other immigrants like visa holders who do need to seek admission.  That same paragraph also stops the clock from running if the immigrant commits an offense that renders them removable — a concept that would apply to both lawful permanent residents and to visa holders.)  There is a logical argument for reading the paragraph in both ways, and this case will give a hint about how strictly this Court will read current immigration laws.

The other case on November 4 is a criminal law — Kansas v. Glover — case involving “reasonable suspicion.”  To grossly simplify matters, law enforcement can detain somebody for a brief period to investigate possible criminal activity including traffic offenses if they have “reasonable suspicion” that a crime is being committed.  A reasonable suspicion is basically objective reason(s) that lead the officer to believe that a crime might be in progress.  Here, the exact issue is whether the fact that the owner of a motor vehicle has a suspended license is a sufficient reason to justify stopping that vehicle to see if the owner is driving.  (In this case, the owner was driving, but the issue is not whether the officer was right.  Instead, the issue is whether the inference that the owner was driving is a reasonable inference for the officer to make.)  As you may have noticed, this case is the third criminal law-related case coming from Kansas.   The vast majority of the cases heard by the Supreme Court come from the federal courts.  Last year, the Supreme Court only took ten cases from state appellate courts, and — depending upon how you characterize some of the cases — only six involved criminal-law related issues.   For the Supreme Court to grant certiorari on three appeals from the same state in the same term is highly unusual and rarely happens even for larger states like Texas and California.  For a small state like Kansas, that is highly unusual.  On the other hand, Kansas has been gaining a reputation for loosely applying prior Supreme Court decisions (mostly in cases in which the Kansas Supreme Court has found that something about the state’s death penalty system violates the federal constitution), and Kansas has been involved in at least three major Supreme Court cases over the past twenty years. Continue Reading...