Tag Archives: First Amendment

October Term 2020 — Supreme Court Preview (Part One)

By tmess2 | Published September 19, 2020

Last night, Justice Ruth Bader Ginsburg lost her fight against cancer.  In the upcoming days, much will be written commemorating her long fight for justice.  Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents).  But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer.  The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.

Before starting a look at the cases on the docket, three key things to note.  First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal).  That creates the possibility of a 4-4 tie.  In the case of a 4-4 tie, there are two options.  On the one hand, the Supreme Court can “affirm by an equally divided court.”  Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases.  On the other hand, the Supreme Court can set the case for re-argument when there is a full court.  It is really up to the justices to decide which option to take.   Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant.  Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney.  The audio from these arguments will be livestreamed by several news organizations.

October is likely to be the calm before the storm.  Back last Spring, the Supreme Court had to cancel the March and April argument sessions.  The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session.  That left about half of the cases that would have been heard in March or April on the docket.  Those cases are being heard in October.  The biggest case in October is probably the first case up for argument — Carney v. Adams.  This case arises from Delaware.  Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party.  So, on a seven judge court, there would likely be four Democratic judges and three Republican judges.   The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants. Continue Reading...

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Election Law — Supreme Court Edition

By tmess2 | Published June 14, 2018

While we are still waiting for the decision on the two partisan and one racial gerrymander cases (with less than two weeks to go in the term), we did receive two opinions related to the election process.  The first case — Husted vs. A. Phillip Randolph Institute — was a 5-4 decision on the validity of Ohio’s process for verifying the address of voters and correcting their voter rolls by, in theory removing the voters who had moved or died.  The second case — Minnesota Voters Alliance vs Mansky — was a 7-2 First Amendment case on wearing political apparel into the precinct on election day.

As the close vote indicates, the issue in Husted was more significant and more controversial.  The basic conflict is that federal election law both requires states to take efforts to improve the accuracy of the voter registry and forbids states from removing a voter solely because they did not vote.  Ohio basically has a three-step process:  Step one — not voting in a cycle (a two-year period); Step 2 — a verification notice sent to voters who did not vote in the last cycle; step 3 — not voting in two cycles (a four-year period) after failing to verify their address.   The majority — in an opinion written by Justice Alito — found that the Ohio procedure was consistent with federal law because failure to vote was not the only reason for the removal of the voter.  The main dissent, by Justice Breyer, critiques Step 1.  According to Justice Breyer, Step 2 and Step 3 comply with the “confirmation process” authorized by federal law that states are to use if they believe that a voter may have changed their address.  However, Justice Breyer interprets federal law as requiring that the election authority have a reason — other than the failure to vote — to believe that a voter has moved.  Justice Breyer argues that common sense and census data reveals that Ohio’s method is likely to result in the removal of a significant number of voters who have not changed address.  In a separate dissent, Justice Sotomayor notes that these overly aggressive purges tend to eliminate voters from vulnerable populations — minorities and the poor who already vote infrequently — thereby suppressing their votes.  Even aside from federal law on voter registration, this disparate impact may violate the Equal Protection Clause and Voting Rights Act.   While not discussed in these opinions, my hunch is that Ohio makes no effort at outreach to notify voters that these notices are coming and that they need to respond.  That lack of outreach and simple experience of recent Republican efforts to make voting more difficult confirms Justice Sotomayor’s theory that this law has nothing to do with complying with the federal requirement that states make efforts to improve the accuracy of voter registration information.

Not surprising for a First Amendment case, the majority opinion in Mansky is written by Chief Justice Roberts.  The Minnesota law at issue bans the wearing of political apparel in the polling place.  While finding that polling places are “non-public forums” for the purpose of First Amendment law (meaning that the government can ban speech),  the majority finds a problem with the way that Minnesota has written its law.  The essential problem is that Minnesota law does not define what qualifies as political apparel (unlike many other states with similar laws).   While the state election authority has attempted to give local election authorities some guidance on this issue, even that guidance is somewhat ambiguous.  This lack of clarity was made abundantly clear during the oral argument in Mansky during which the only conclusion that could be drawn about the current state of the law in Minnesota is that the definition of political falls into the “I know it when I see it” category.  Given the broad discretion that the law appears to place in election judges and the lack of clear notice to the voter, the majority found that, as currently written, the law is not reasonable. Continue Reading...

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Free Speech Uber Alles

By tmess2 | Published June 24, 2017

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.) 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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Redistricting Advanced Course

By tmess2 | Published May 27, 2017

We are four years away from the next full round of redistricting.  The redistricting process is a combination of federal law, state law, and local politics.  The fact that there are legal rules governing the process means that individuals who do not like one of the many maps (congressional, state senate, state house, county commission, city council) can bring a court challenge to that map.  When discussing federal law, there are two crucial provisions — the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (Additionally, there is some suggestion that the First Amendment may have an impact on certain types of gerrymanders.)  This week the Supreme Court issued an opinion on North Carolina’s congressional districts that attempted to reconcile the Fourteenth Amendment and the Voting Rights Acts.

The background of this case is that, two decades ago, the Supreme Court (in a case involving North Carolina) held that a racial gerrymander — one in which race played a significant role in the drawing of the lines — would be subject to strict scrutiny (the most state unfriendly form of review — requiring showing of both a “compelling interest” justifying the use of race and that the use of race was “narrowly tailored” to meet that compelling interest).  Over the years, the Supreme Court has clarified that, to trigger state scrutiny, race must be the predominate factor in drawing the lines.  The Supreme Court has also clarified that Section 2 of the Voting Rights Act can be a compelling interest.

North Carolina currently has three Democratic representatives in Congress — from the 1st district, the 4th district, and the 12th district.  Before the last round of redistricting, African-Americans represented around 48% of the voting age population (BVAP in election law jargon) of the 1st district and 43% of voting age population of the 12th.  That BVAP was enough to make African-Americans into a very significant segment of the Democratic primary vote in those districts and there are enough white Democrats in those districts that — even in bad years nationally, the Democratic candidate gets well over 60% of the vote in those districts.  In short, African-Americans could get their preferred candidate selected in those districts even though they did not have 50% of the vote.  In the trial court, North Carolina conceded that they did take race into account in drawing the 1st district but claimed that they did so to meet Section 2 (that is by making the 1st district into a majority-minority district),  On the 12th district, North Carolina claimed that they did not draw that district to pack it with African-Americans but rather to pack it with Democrats.  However, there was some evidence that — at least for one county in the district — they did expressly consider race and, also, that they used race as a proxy for partisanship.  Additionally, the 12th was already compliant with “one man, one vote” even if North Carolina had kept the old district lines and the changes added mostly African-Americans while removing mostly whites. Continue Reading...

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Supreme Court and Politics

By tmess2 | Published October 29, 2016

no_more_hate (2)In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree.  By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular.  Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies.  The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices.  (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years.  Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)

The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics.  To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much.  However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election.  This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split).  Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines.  That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review.  While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.

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Supreme Court Preview Part Four — Cases in the Pipeline

By tmess2 | Published September 24, 2016

On Monday, the Supreme Court will meet in what is commonly called “The Long Conference” — reflecting the fact that its been three months since the Justices last met to consider petitions for review (officially petitions for a writ of certiorari) creating a long list of cases to consider.  Maybe Monday afternoon, maybe later in the week, the Supreme Court will announce which cases it will hear arguments on.  The following Monday (October 3), the new term officially begins and the Supreme Court will issue an order list which will, at the very least, contain a long list of the cases that it has decided not to review on the merits.

Predicting which cases the Supreme Court will actually take is almost impossible.  The Supreme Court receives almost 10,000 petitions per year but only grants full review on about 70-80 cases.  Of course, a lot of the petitions are clearly long shots — many written by the petitioners themselves — that simply assert error in the lower courts without giving any reason why the case matters to anybody other than the petitioner.  But even after eliminating the chaff, there are way more cases that raise significant issues than the Supreme Court will take.

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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.

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Supreme Court: First Amendment and Politics

By tmess2 | Published April 30, 2016

The Supreme Court ended the argument portion of its term this week.  After taking its last two week recess, the remainder of this term will be about attempting to issue opinions in the argued cases.  The question remains how many of these cases will end up in 4-4 split or be rescheduled for reargument in 2017.   Both this week’s one opinion and the last argument of the term had a strong First Amendment component.

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