Tag Archives: Native American Rights

Religious Freedom (for some) — Supreme Court Overtime Edition 2

The big news out of the Supreme Court today is that Thursday is the last opinion day of the court.  Under normal practice, the justices would hold a public session in their courtroom to announce the opinions.  Opinions would be announced in reverse order of seniority (with some exceptions for companion cases) with the justice who wrote the opinion reading a brief summary of the opinion and (sometimes) a dissenting justice reading a statement as well (but such a statement is a rare event).  With the Supreme Court not being open to the public (and no public information office handing out copies to reporters), the opinions are merely being posted on-line but at roughly the same pace (one every ten minutes) as would be true if the Supreme Court was actually proceeding as normal with the opinions being released in the courtroom.  As we have already seen this term, sometimes the Supreme Court’s website  is not quite up to the traffic associated with a major opinion.  But, if you wish to go to www.supremecourt.gov at 10am EDT and repeatedly refresh, you can see the opinions as they are being released.   As discussed further below, my expectation is that the Chief Justice will have one of the two (or maybe both) of the Trump tax cases.  If that is the case, I would expect the Oklahoma opinion to be released at 10 (regardless of who has the opinion) followed by two Trump tax cases at 10:10 and 10:20., but there is a chance of one of the two Trump tax cases at 10:00 followed by the Oklahoma case at 10:10 and the Chief Justices opinion at 10:20.  It all depends on how closely connected the holding in the two Trump tax cases are.

Today, the Supreme Court released the two remaining “religion” cases.  The first case, written by Justice Alito, concerned the “ministerial exception” as it applies to school teachers.  The ministerial exception has its roots in the Free Exercise Clause.  Basically, under the Free Exercise Clause, the government has no power over the religious leaders of a religious organization.  Courts only play a limited role in deciding intra-faith disputes and only when the issue to be resolved is a secular matter like which group of opposing claimants to leadership actually has title to the assets of a religious organization (including the right to use the name).  Today’s case, however, takes the exception to (and arguably past) the breaking point.  The issue is whether teachers at a parochial school are covered by the ministerial exception.  On the one hand, teachers at a parochial school — especially an elementary school where one teacher handles all subject matters — do teach some religious materials and are expected to comply with a code of conduct.  On the other hand, many parochial schools — while having a preference that teachers belong to the same sect that runs the school — do not expressly mandate that teachers are members of the religious group running the school.  The majority — in a 7-2 decision — essentially held that all teachers in religious schools are minister based solely on the school’s assertion that it views them as ministers and that the decision to fire was based on non-religious grounds.  As the purpose of the ministerial exception is to avoid courts from having to decide whether a particular minister is sufficiently “orthodox,” this broadening of the exception is significantly divorced from the purpose behind the exception.   In this consolidated case, the two teachers claimed that they were fired based on age (violating the law against discriminating based on age) and medical condition (breast cancer, violating the laws governing medical leave).  The schools — while asserting an absolute bar to proceeding on the merits due to the ministerial exception — asserted that they were fired because they were not good teachers.  In short, religious issues had nothing to do with the case, and a court could have decided which secular reason was the main motivating factor in the decision to fire these two teachers.

The other case involved the contraception mandate.  Amazingly, the majority opinion by Justice Thomas only made a passing reference to the Religious Freedom Restoration Act.  Instead, the gist of the opinion was whether the Affordable Care Act gave the government discretion to create a religious exemption to the contraception mandate.  Technically, the majority opinion does not resolve the final issue of whether the current regulation is valid.  Instead, it merely held that the Affordable Care Act granted the government the discretion to create an exception for religious groups (and private companies) with moral objections to the mandates and that the government complied with the procedural requirements of the Administrative Procedure Act.   The case is sent back to the lower court to decide if the regulation was adequately supported by the administrative record.  (Which means that the future of the contraceptive mandate and this religious exemption depends on the results of the election.) Continue Reading...

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Supreme Court — The COVID-19 Term (Updated)

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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Supreme Court Preview: October 2019 Term (Part IV) (EDIT — 10/5)

As noted in Part I, the Supreme Court has yet to issue the calendar for its January argument session.  However, for the first time in several years, the Supreme Court has ten cases left over after the December argument session; so there are enough cases already granted to fill the five days of argument in January 2020.  There is a chance that the Supreme Court might bump some of these cases to one of the later argument sessions, but — for each of these cases — it is more likely than not that they will be heard in January.

Among the cases set for argument, you have the following issues:  1) can the beneficiary of a pension plan seek relief for misconduct by the plan managers without first proving that they have suffered actual loss; 2) whether changes to the Foreign Sovereign Immunities Act (governing when foreign governments can or can’t be sued in U.S. courts) are retroactive; and 3) whether federal employees claiming that the federal government discriminated against them due to age must — similar to private employees — prove that age was a “but for” cause of the adverse employment decision.

There are three potentially big cases for January.  First, there is Kelly vs. United States.  This is the “bridgegate” case from New Jersey.  The ultimate issue is whether a public official who uses false statements to create the pretense that their order to employees is legal is guilty of defrauding the government (by wasting public resources). Continue Reading...

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June and the Supreme Court

As the calendar flips to June, the Supreme Court tends to move to center stage of political life in America.  While, technically, the annual term of the Supreme Court runs from October to September, the Supreme Court tries to finish issuing opinions in its cases by the end of June.  As a result, June has most of the opinions on the most divisive and politically important cases. 

At this point, we have some information on what to expect for this month.  We know the cases that were argued (as the last argument was on April 24). We also know which cases have been decided and which cases remain to be decided and when those cases were argued.  That is a key fact because of how the Supreme Court usually operates.  At the Supreme Court, cases are argued in a two-week argument session (followed by a period of at least two weeks without argument).  In each argument week, the cases are discussed at a weekly conference (typically on Friday) and a tentative vote is taken.  After that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) assigns a justice to write the case.  (With the current splits on the court, in most cases, the senior justice will be either Chief Justice Roberts or Justice Ginsburg.)  Regardless of who assigns the cases, the assigning justice tries to keep the assignments balanced within the argument session (no more than two per argument session) and over the term as a whole.  This year, the argument sessions ranged from six cases to thirteen cases.  When all of the argument sessions are combined, there were sixty-nine argued cases (actually seventy, but one was quickly dismissed without opinion) for which an opinion either has been or will be issued.  Thus, we expect each justice to have seven or eight opinions for the entire term. 

At this point in time, we have the most information on the first four argument sessions.  Typically, opinions are issued between three and five months after the argument; so the Supreme Court has issued opinions in most of the “early” cases.  In October, there were nine cases argued (technically ten, but one of the cases was argued during the first week before Justice Kavanaugh was on the court and was quickly set for reargument in January implying a 4-4 split).  Of those nine cases, eight have an opinion.  In November, there were twelve cases argued; and opinions have been issued in eleven cases.  In December, there were ten cases argued; and opinions have been issued in eight cases.  Finally, in January, there were eleven cases argued; and opinions have been issued in eight cases.  On the opposite side, we only have a total of three opinions from the cases argued in February and March and none from the April arguments. Continue Reading...

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