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Tag Archives: Justice Anthony Kennedy
Supreme Court Term Preview — October 2019 Term (Part I)
It’s that time of year again. October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments. This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions. Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.
(For a little explanation of what I mean about argument sessions and filling them. From October through April, the Supreme Court has seven argument sessions. Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays. A “normal” argument day consists of two arguments on two cases. Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position. Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session. A Supreme Court case has two rounds of written arguments. The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari. These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take. While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions. If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument. The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of. Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better. So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June, And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session. Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)
At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions. While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible). Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term. Any attempt to guess what is likely to be granted is highly speculative. The Supreme Court accepts about 1% of the cases for actual full review. Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review.
Posted in Civil Rights, Judicial, LGBT
Also tagged Chief Justice John Roberts, employment discrimination, Justice Brett Kavanaugh, Puerto Rico, Sexual Orientation, Supreme Court, Title VII
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The Future of Redistricting
At 10 a.m. on Tuesday, October 3, the Supreme Court Justices will take the bench and the Chief Justice will call for arguments in Gill vs. Whitford — a case on direct appeal from a three-judge panel in which the majority of the panel found that the legislative districts in Wisconsin were the results of an unconstitutional partisan gerrymander. Then, on Friday, the justices will discuss the case in conference, and — depending on the vote — either Chief Justice Roberts and Justice Anthony Kennedy will assign this case to one of the justices to write the opinion. Then — probably in February or March — we will get a series of opinions (with possibly no opinion having the support of five justices) that will define the rules for the next cycle of redistricting starting in 2021.
This case has its roots in the framing of the Constitution. The original structure of the British parliament awarded a certain number of seats to each incorporated borough (town) and to each shire (county). When combined with the fact that only freeholders (property owners) had the right to vote, by the middle of the Eighteenth Century, there were boroughs that were very small with only a handful of voters (so-called “rotten boroughs”). The non-representative nature of the British Parliament was one of the reasons why colonists did not accept the argument that they were represented by the British Parliament. In drafting the U.S. Constitution, at least for the House of Representatives, the framers decided that representation in Congress would depend upon population based on a decennial census.
By requiring that representation in the House would be based on representation, the Constitution created a de facto requirement that states draw new congressional districts (at least when a state’s representation changed). Some, but not all, states also based representation in state legislatures on population — again requiring periodic redistricting. In simply requiring redistricting, the U.S. Constitution was ahead of its time. Now, most countries that use a first-past-the-post system also have periodic redistricting. The vast majority of them also use a non-partisan commission with specific criteria to draw fair and competitive district lines. The framers, however, did not have the extra two centuries of seeing what works and what doesn’t work in the redistricting process. And it is some of what happened next in the U.S. that has led the other countries to have neutral agencies handle redistricting.
Posted in Civil Rights, Elections, Judicial
Also tagged Gill, partisan gerrymander, redistricting, Supreme Court
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Supreme Court and Abortion Politics
Over the last two weeks, the United States Supreme Court has granted review in two sets of cases that will bring the abortion issue to the front and center of the opinions likely to be issued in May and June of 2016 and thus into the presidential campaign. How the Supreme Court addresses these issues will determine who sees a need to win the election to protect their rights.
The first set of cases involve the Affordable Care Act and the Religious Freedom Restoration Act. In 2014, the Supreme Court decided to view the coverage requirements of the Affordable Care Act from the perspective of the employer paying for coverage rather than from the employee deciding how to use that coverage. Viewing the scope of coverage from the perspective of the employer, the Supreme Court decided that a mandate to purchase coverage which included benefits for contraceptives would substantially infringe on the religious freedom of corporation which had religious objections to such coverage. (Many of these organizations express the religious belief that certain contraceptives are abortifacients, notwithstanding that from a medical perspective these items are not abortifacients.) Because there were alternative ways to provide contraceptive coverage to employees, the Supreme Court found that the Affordable Care Act violated the Religious Freedom Restoration Act (which applies a compelling interest/narrowly tailored test to federal laws that substantially infringe on religious beliefs).
Since the 2014 decision, the Department of Health and Human Services has created a form to allow employers to opt-out of paying for coverage. The form, however, requires the employer to provide information about that employer’s insurance policy that allows the government to pay the additional premium to make contraceptive coverage for the employees of the company. Several non-profit organizations with religious affiliations object to the form claiming that any cooperation with the government’s provision of such coverage makes the organization an accomplice to the provision of contraceptive coverage, thereby violating the organization’s religious beliefs.
Posted in Judicial
Also tagged Abortion, Afforcable Care Act, Chief Justice John Roberts, Religious Freedom Restoration Act, Supreme Court
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