Tag Archives: Consumer Finance Protection Bureau

Supreme Court — Progressive Pyrrhic Victories and Conservative Triumphs

By tmess2 | Published July 3, 2020

This week the Supreme Court issued five opinions.  Putting aside a case about when [generic term].com can be trademarked, the other four cases represent two big wins for conservatives and two narrow wins for progressives in which the reasoning adopted by the controlling vote — in both cases, the Chief Justice — signals bad news for progressives in future cases.

But first, there are some housekeeping details.  This week’s opinion finished the outstanding cases from January and February.  The only cases left are from May, but we still have eight of the ten cases left.  As a result, it is practically wide open as for as which justice has which case.  Justice Gorsuch and Justice Ginsburg have both authored six opinions for the Court this year (implying that they are probably done, but Justice Gorsuch still has an outside chance at picking up one of the May cases).  Justice Thomas has only authored four opinions for the Court, so he may get two May opinions.  Everybody else appears to be due for one May opinion.

This past week, the Supreme Court issued opinions on the Consumer Finance Protection Bureau, abortion, tax credits for religious schools, and conditions on aid to foreign non-governmental organizations.  In all of these cases, the controlling opinion established rules that conservatives will love, even if they hate the result in the individual case. Continue Reading...

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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 October 2019 Term — COVID 19 Reset

By tmess2 | Published April 18, 2020

As with other institutions of government, COVID 19 has caused a degree of chaos in the court system.  The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.

The Supreme Court, like every other judicial institution, has had to find ways to cope.  Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology.  It was the last federal court to accept electronic filing.  As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.

As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court.  That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari).  The Supreme Court then decides if it wants to hear the case.  So most of the decisions of the Supreme Court are decisions to not take a case.  There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court.  One category is frequently referred to as “grant, vacate, and remand.”  Those cases typically involve an issue that the Supreme Court decided while the application for review is pending.  In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue.  The other is summary reversal.  These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court.    But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives). Continue Reading...

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