Tag Archives: free exercise

Supreme Court October Term 2021 Preview — Part I

By tmess2 | Published September 19, 2021

Once again, it’s that time of year.  Every year, the Supreme Court starts a new term on the first Monday in October.  This is the first full term for the new alignment of justices.  While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right,  Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.

As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions).  In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday.  The same thing occurs in Week 2.  In Week 3, there is an order list issued on Monday.  Finally, in Week 4, the Supreme Court meets in a conference on Friday.  At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases.  Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion.  Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision).  (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference.  If no justice believes that an application should be granted, it is denied.)  During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs).   The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari.  As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status).  In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue.  While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter).   If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments.    The Supreme Court calendar features seven argument sessions.  After the last argument session, May and June are spent finalizing the remaining opinions from the year.  After the Supreme Court releases its last opinion, they recess for the summer.  Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).

As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days).  On a typical day, there are two arguments (of approximately one hour each) in the morning.  Rarely, there are additional afternoon arguments.  More often, there is only one argument on a day.  The argument docket for a month tends to be released approximately two months prior to the argument.    There are currently nine cases set for October and nine cases set for November. Continue Reading...

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Supreme Court Preview 2018-19 Term: Part III (Rest of the Term)

By tmess2 | Published September 22, 2018

In Part I and Part II of this series, I discussed the highlights of the cases set for the October argument session and the November argument session.  Between those two months, the Supreme Court will hear 22 arguments on 23 cases.  As of this point in time, the Supreme Court has accepted 38 cases for argument.  That means that there are fifteen cases already accepted that do not yet have an argument date.  The cases for the December argument session will be announced in the next several weeks.  It is more likely than not that the Supreme Court will fill all the morning slots for that session (twelve cases).  The best bet will be that the Supreme Court will schedule the remaining three cases for the January argument session.  However, sometimes, the Supreme Court has scheduled afternoon argument sessions for December rather than carrying a case over to January.

Besides the existing cases that the Supreme Court will carry over to January, the Supreme Court will begin the process of filling the rest of the 2019 arguments sessions with its initial conference on September 24.   However, there are only a limited number of cases that the Supreme Court has to take.  Even with those cases, the Supreme Court can resolve those cases with a short unsigned (formally per curiam) opinion and does not have to accept full briefing and argument.  Everything else on the docket requires four justices to vote to accept the case.    Which means that the Supreme Court can decline to accept any case — no matter how important — because six justices do not want to address the issue at the present time or because they think that there is something unusual in the current case that interferes with reaching that issue.  Because, in a typical year, the Supreme Court gets over 8,000 petitions from parties that want the Supreme Court to take their case but grants review in less than 80 cases, it is hard to predict which cases will be accepted.   According to certpool.com, Monday’s conference will cover over 1,200 cases.  Even before relists (a decision by the Supreme Court to table a petition to a second conference before making a final decision — which has tended to become more common for cases under serious consideration in recent years), the October 5 conference will cover approximately 250 cases.   Even a site like Scotusblog which tries to list the most interesting of the petitions filed each week misses some grants and lists cases that are denied.  With all of these caveats, I will try to list some of the cases that appear to be in the pipeline that are of interest.

Among the cases already accepted, there are a handful that could have some significant impact.  For example, there is an anti-trust case looking at how to make the traditional rules fit apps for the I-phone.  Typically, Apple would be considered a mere intermediary between the purchaser and the suppliers and, thus, would not be subject to anti-trust claims.  However, Apple plays a unique role in the marketplace and does that unique role require anti-trust protection for both purchasers and suppliers.   Similarly there is a case (involving Merck) about the interaction between FDA labeling requirements and state “failure to warn” claims for the side effects of medications.   The Supreme Court has also accepted a case in which it may reconsider the “dual sovereign” exception to double jeopardy (basically that, if a defendant’s conduct violates the laws of multiple states or a state and the federal government, the defendant could be charged by both governments).  The Supreme Court will also consider whether the Excessive Fines Clause of the Eighth Amendment applies to the states and how that impacts civil forfeiture cases.  There are also two cases involving the relationship between treaties with two native tribes and state court jurisdiction over criminal matters. Continue Reading...

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June at the Supreme Court — October 2017 Term

By tmess2 | Published June 3, 2018

Because the Supreme Court has a custom of publishing opinions in the same term as the oral argument on a case and the justices like to wrap up their work before July 4, June is always an active month at the Supreme Court — the legal equivalent of an everything must go closeout sale.  Because during the rest of the year, the Supreme Court issues decisions as the opinions are ready for release, the June opinions reflect two groups of cases.  First, there are the cases from late in the year — March and April primarily — for which a June decision would reflect a somewhat normal opinion pace.  Even for a unanimous decision, it takes time to write an opinion, and sixty days is somewhat the norm even for unanimous opinion.  Second, there are the difficult cases.  While sixty days from argument to opinion is a good pace when everyone agrees, if other justices want to write an opinion (dissenting or concurring) in response to the initial opinion that extends things considerably — particularly if the original author revises their draft to respond to the other opinions as sometimes happens.

This year’s caseload for June is somewhat on the high end for recent years with 29 cases still pending.  (For now the Supreme Court is just issuing cases on Monday, but, at some point this month, the Supreme Court will add additional days each week.  Needing to issue seven cases per week, my hunch is that they will go to two days per week starting June 11, but they might hold off to June 18.)  While there have been other years with more cases still pending at this point in time, what makes this year exceptional is the low number of cases decided.  The Supreme Court only had 63 arguments this year, reflecting the continued decline in accepting cases.  Of those 63 cases, two were dismissed meaning that the Supreme Court has only decided 32 argued cases this year.   As would be expected, the Supreme Court has decided most of the cases from argued between October and January — 28 decisions out of 34 cases.  Of the twenty-nine cases argued in February, March, and April, the Supreme Court has dismissed two cases and decided four cases.  Because the Supreme Court tries to balance out opinion assignments from each argument session, that means that there is some clue as to who is handling the pending cases from the first four argument sessions, but very little clue as to the last three sessions.

From October, there is only one case left and it is bigly important — Gill vs. Whitford on partisan gerrymandering.  Based on the other opinions from October, it appears that Chief Justice Roberts got the initial assignment on the case.  Normally, that would be a bad sign for those who believe that the Supreme Court has some role to play in assuring fair elections.  However, after the initial conference, the Supreme Court did accept a second case on partisan gerrymandering.  I can also see a situation in which the majority saw problems with the standard used by the panel but could not agree on what the standard should be.  That split would allow Chief Justice Roberts to assign the case to himself but could lead to a situation (like the last time that the Supreme Court considered this issue) in which there was no majority opinion.  Or the argument in the second case may have clarified issues resulting in one of the other justices now having the majority opinion. Continue Reading...

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To Bake or Not to Bake

By tmess2 | Published December 2, 2017

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law. Continue Reading...

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The Supreme Court — Year in Review; Year yet to Come

By tmess2 | Published January 2, 2017

The big court story of 2016 was the February death of Justice Antonin Scalia.  In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama.  However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general.  The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess).  By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court.  A win this past November would have led to a solid Democratic majority for the next two or three decades.  However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues.  As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners.  (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.)  At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet.  The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters.  Democratic voters may soon suffer for this failure of leadership.

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