Tag Archives: Free Speech

Supreme Court Preview — Part 2 — December and January Arguments (?)

By tmess2 | Published September 22, 2024

In last week’s post, we covered the cases that already have argument dates scheduled for October and November.  In this week’s post, we cover cases which the Supreme Court accepted this past Spring.   As of today, the Supreme Court has not yet released its December argument schedule.  Thus, we do not know which of these cases will be heard in December and which might be held over for January.

The Supreme Court tends to schedule cases in the order in which they were accepted for review.  However, all of the cases that might be scheduled for December or January were accepted for review in the last three weeks of the old term (June 17, June 24, and July 2).   So this post will go in order by the date on which review was granted.

From June 17, only one case remains to be set for argument.  (The other cases will be heard in November.)  Kousisis vs. United States is a criminal case, but it implicates two issues of political significance.  The first is that this case is a fraud case involving government benefits.  The harm to the government is that the false statements allowed defendants to get a government contract over a potential alternative bidder.  But there is no indication that the defendants failed to properly fulfill the core of the contract.  In recent years, the Supreme Court has been pushing back against broad reading of fraud statutes and have not been inclined to allow charges based on noneconomic harm.  The second is that the fraud related to minority participation in the contract.  The business in its bid claimed to meet the goals for minority participation but, on closer analysis, the proposed minority participation was a mere shell to create the illusion of minority participation.  Again, the Supreme Court has been pushing back on such affirmative action programs in recent years.  This case presents another opportunity to minimize the role of attempts to assure minority businesses have the chance to participate in federal contracts. Continue Reading...

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Supreme Court Update — Appropriations and Redistricting

By tmess2 | Published May 25, 2024

We are at that point of the Supreme Court terms when we are waiting for the other shoe to drop.  All the arguments and briefing for the term is done, and what is left is for the opinions to slowly drip out.  For now, the Supreme Court is only holding one opinion day per week.  That will be changing soon.

In May, we tend to get the older cases (October, November, and December) that have multiple opinions and newer cases (March and April) that were “easy” unanimous decisions.  As we get later into June, we will get the 5-4 decisions from February, March, and April, and the number of cases will pick up.

So far, in May, there have been three opinion days (with one more set for this Thursday).  On those opinion days, we have gotten, two, three, and three opinions.  With eight opinions down, we still have approximately thirty-five opinions (approximately because there are a few cases that could be consolidated) left to come over the next five weeks.  That number is why we are likely to get multiple opinion days per week in the latter part of June as we need nine to twelve opinion days. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 1

By tmess2 | Published September 10, 2023

We are three weeks away from the First Monday in October which means that the Supreme Court will soon be back in session.  Putting to the side the continued questions about the ethical failings of certain ultra-conservative justices (who unfortunately would never be convicted by the Senate even in the unlikely event that the more ethically-challenged Republican caucus in the House would actually allow articles of impeachment to pass), that means time to look ahead to the politically-significant cases on this year’s docket.

For a brief refresher, during its annual term, the U.S. Supreme Court sits in seven argument sessions.  Each of these argument sessions lasts for two weeks.  After five of these argument sessions, the U.S. Supreme Court takes a two-week break (with longer breaks over the holidays and after the January argument session).   Typically, for ease of convenience, the sessions are referred to as the October, November, December, January, February, March, and April sessions even though some sessions will begin in one month and conclude in another month (like the November session this year which will begin on October 30).  During the argument session, the Supreme Court hears oral arguments on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, that day is skipped.  There is no firm rule (as the Supreme Court will make adjustments if the docket requires it), but a “full” docket will have two arguments in the morning on each day.  Subject to adjustment if a third party (usually the Solicitor General if a case involves a federal statute) is permitted to argue, the party that lost below gets thirty minutes to argue and answer questions followed by thirty minutes for the party that won below followed by a brief rebuttal argument by the party that lost below.

On the Friday before the argument session, the justices meet to review pending petitions for review and to finalize any opinions to be released the following week.  There are similar conferences on the Fridays on the weeks in which there are arguments at which the justices also discuss the arguments that were heard that week and take an initial vote on those cases which is used to assign a justice to write an opinion.  On the Mondays of argument week (and the Monday after the argument week), the Supreme Court releases on order list announcing the decision on pending petitions for review.   In the early part of the term, there might be a separate list announcing the cases accepted for review on Friday to give the parties additional time to start preparing their briefs (the written arguments on the case) as the time schedule gets rather tight for completing the briefs before the oral argument.  Because of those time limits on the written briefs, the January argument session is effectively the cut-off date for a case being heard during the term.  If review is granted after January, the case is held for the following term.  Thus, the cases that we are about to discuss are those that the Supreme Court granted review on between February and June.  (On rare occasions, as it did for one case this year, the Supreme Court may add a case during its summer recess, but the norm is that — other than emergency matters — the period between July 1 and October 1 is quiet.)  The cases that they will accept (some of which may be discussed in Part III of this preview) in the next several weeks will be argued in the second half of this term. Continue Reading...

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Immigration Week at the Supreme Court

By tmess2 | Published June 25, 2023

While the timing of the release of cases by the Supreme Court is somewhat random, ocassionally, we get several unrelated cases in the same area of law.  This week, out of eight cases released by the Supreme Court, three were somewhat significant immigration cases.

The most favorable for immigrants, and the one most likely to be significant for other areas of law was United States vs. Texas. The basic facts of this case is that the law on immigration mandates that the government pursue “removal” (i.e. deportation) against a wide range of immigrants — both those who unlawfully entered the U.S. (or unlawfully remained after their authorization expired) and those who have engaged in some act which justifies terminating the authorization to remain in the U.S.  The problem is that  (as is true for other areas of criminal and civil law enforcement) enforcing the law takes resources.  You need agents to investigate, attorney to handle the cases on behalf of the U.S., and judges to hear the cases once they are brought. And Congress is only willing to budget for a certain number of agents, attorneys, and immigration judges.  Thus, the enforcement agency (Immigrations and Customs Enforcement which is part of the Department of Homeland Security) has to set priorities.  In setting priorities, it is conceivable that an agency could pursue a “first in” policy in which it pursues all cases in the order in which they come in.  But that creates a never ending backlog in which the most serious cases get delayed.  On the other hand, the government can decide which casses qualify as the “most serious” and let “minor” cases slide.  Every administration for the past fifty years has set (and over the course of the administration adjusted) its own priorities.

In the past, states have typically recognized that federal government decisions are federal government decisions and that the states have no authority to challenge the decisions.  But in recent years, state Attorney Generals have switched from building up their reputation via criminal cases to filing frivolous claims against the federal government.  So today, every decision made by the federal government inevitably results in Attorney Generals of the other party filing a suit on behalf of their state.  And thus, when the Biden Administration implemented its priorities for enforcing immigration law, red state Attorney Generals led by accused felon Ken Paxton, Attorney General of Texas, filed suit claiming that the policy was improperly adopted (claiming that such a directive needed to be adopted through the same process as a formal regulation) and failed to comply with the statutory mandate.  Because this case was filed in federal court in Texas (heard by a very Trumpy judge) and appealed to the Fifth Circuit, the lower courts were more than willing to grant relief to Texas and bar the Biden priorities.  The United States Supreme Court reversed finding that the states lacked “standing” (or in plain English, the right to sue).   Stripped to its essence, the Supreme Court found that, while the failure to more vigorously enforce immigration laws might, in some way, harm the states, finding that the government’s priorities were in some sense wrong would not eliminate the harm.  In short, enforcement priorities are inherently a matter of discretionary decision making by the Executive branch and it would be improper for the courts to interfere with that discretionary authority. 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 — End of Term Preview 2022

By tmess2 | Published June 12, 2022

Normally, by this time of the year, the Supreme Court term is coming into focus.  With three weeks to go, typically, there is one or two cases left from the Fall.   While there are always question marks, it is possible to try to figure out results in the key case by who is in the running for getting the remaining opinions from a month.

This year is different.  There are still 29 opinions outstanding out of 62 cases.  While there have been years with more opinions outstanding heading into the last three weeks, those years were back when the Supreme Court was hearing a lot more cases per year.

To date, almost all of the opinions have been in cases that (other than the parties) mostly interested those practicing in that field.  The biggest attention getting case was the decision reinstating (at least for now) the death penalty against the surviving Boston Marathon bomber.  The legally biggest case of the year so far also came from Boston in a Free Exercise/Free Speech case involving Boston’s refusal to let a Christian group use one of the city’s flagpoles in connection with an event even though it routinely gave such permission to nonreligious groups.  That decision may be an indicator of the likely result in some of the remaining cases, but it was merely a continuation of the recent trend in Free Exercise cases. Continue Reading...

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The Supreme Court this Week — Puerto Rico and Signs

By tmess2 | Published April 24, 2022

We are nearing the turn for home of the current Supreme Court term.  This upcoming week is the last week of arguments for the term.  After the upcoming Friday conference, the Supreme Court will take its last two-week recess which will be followed by several weeks of issuing opinions until all of the opinions are done.

Thursday saw the first large opinion dump from the Supreme Court.  This post will focus on the two with the most political significance.

First up is the latest on Puerto Rico.  The U.S. Constitution implicitly assumes that territorial status is temporary with Congress having ultimate control over the territory and the laws that apply in the territory until it can become a state.  On the other hand, once a territory becomes a state, it has equal status to other states. Continue Reading...

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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 — The Final Week (Updated)

By tmess2 | Published June 26, 2021

This past week was a busy week with the justices issuing eleven opinions which means that there are only five cases left to be decided — two of which are extremely significant.

As discussed in last week’s post, the Supreme Court tries to keep assignments to each justice balanced both within each month and as the term progresses.  That gives us a clue as to which justice could have an opinion.  But within each month, once you have identified the candidates, it is pure speculation as to which justice seems most likely to have the opinion.  And as we have already seen several times this term, trying to guess which justice will get assigned the opinion from the potential candidate will often be wrong.  For example, last week, I guessed that Chief Justice Roberts was most likely to have Brnovich (the voting rights case) from February.  While the Chief Justice did have a February opinion, it ended up being Arthex — a patent case involving the Appointments clause.  Similarly, many had the Chief Justice writing the Obamacare case from November with the Justice Alito writing Fulton, but Justice Breyer got the Obamacare case and the Chief Justice got Fulton.  

The big question is how many opinions each justice will get.   With fifty-four opinions and nine justices, each justice in theory should have six opinions.  But Justice Barrett started one month late.  Currently, Justice Thomas has seven opinions which means that, at least one justice should have five opinions).  So far, Justice Barrett has been one opinion behind the pace for the entire term (one through November, three through February).  As such it seems like Justice Barrett will end up with five opinions for the term with Justice Thomas having the extra opinion and the remaining justices having six opinions each.  The problem with that theory is that Justice Breyer had the extra opinion in October/November and Justice Thomas did not pick up the extra opinion until April.  So does Justice Breyer still have one opinion left (in which case he is due for one in the December-February period and some other justice besides Justice Barrett only has five opinions)? Or did that extra opinion migrate over the course of the term (in which case any justice with only five opinions for the term could be the justice who had the extra opinion at the end of February)? Continue Reading...

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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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