Tag Archives: Supreme Court

Judicial Restraint vs. Judicial Activism — Conservative Style

By tmess2 | Published July 21, 2019

When the Supreme Court was expanding the rights of minorities and women back in 1950-1975, conservatives were strongly emphasizing the need for judicial restraint and condemning the Supreme Court as an activist court.  Now that the shoe is on the other foot, we are beginning to see how much conservatives really believe in judicial restraint and how activist they are willing to be to get what they want.

There are several doctrines that courts have traditionally used that “restrain” courts from reaching to strike down laws or at least from striking down more laws than they should.  Currently, there is the latest case challenging the Affordable Care Act.  This case claims that, when the Republicans passed there tax cut last year, Congress by setting the penalty for not complying with the individual mandate at zero made the entire Affordable Care Act unconstitutional.

To understand the theory, you have to go back to the decision upholding the individual mandate in 2012.  Under that decision, the individual mandate was only constitutional because it was a tax.  Under the theory being pushed by Republicans, because the tax is now set at zero, the individual mandate is unconstitutional. And the trial court — accepting this theory — found,  that because the individual mandate is unconstitutional, the entire act is unconstitutional.  This case is currently before the Fifth Circuit and the three-judge panel seemed likely to affirm — at least the finding that the individual mandate is unconstitutional. Continue Reading...

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Update on Missouri’s Anti-choice laws

By tmess2 | Published July 14, 2019

With so-many Republican-controlled states passing laws designed to make abortion illegal, it’s going to be hard over the next several years to track what is happening with each of these laws as they potentially make their way to the Supreme Court.  (And the moderate conservatives are going to try to avoid this issue as long as they can.)  But I can, at least, track what is happening at the local level.

Missouri passed one of these laws this year — House Bill 126,

First, some brief background on Missouri’s legislative process.  Missouri’ legislature meets in an annual session that runs from early January until mid-May (technically, the session ends at the end of May, but all work on legislation must end by mid-May with the last two weeks for the Speaker/President Pro Tempore to sign the official copies of the bills that pass).   The Governor then has until Mid-July to sign or veto the bills (with an earlier deadline for bills passed early in the session).  The Missouri Constitution generally treats an unsigned bill as if the Governor had signed it.  (In other words, the Governor can’t block a bill by leaving it unsigned.)  Generally speaking, new laws take effect on August 28, but — by a  two-thirds vote in both Houses — the legislature can agree that there is an “emergency” for having it take effect at a different time. Continue Reading...

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The Supreme Court and Republican Lies

By tmess2 | Published June 29, 2019

As we approach Independence Day, I tend to listen to my version of patriotic songs.  One of those songs is a Crosby, Stills, Nash, and Young track that they labeled as “49 Bye-Byes/America’s Children” (basically a modified live version of the Buffalo Springfield song “For What It Is Worth” a/k/a “There’s Something Happening Here” with an intro.)  Thursday’s Supreme Court Opinions brought to mind that intro — “Forty-nine reasons all in a line.  All of them good ones.  All of them lies.”

The most prominent example of this concept is the decision in the Commerce Department case concerning the census question.  The ultimate decision in this case was a 4-1-4 split.  On the one side, you had the four most conservative members of the Supreme Court.  These four did not care to look at the truthfulness of the reasons given for asking a citizenship question on the 2020 census.  It was enough that they thought that it was possible to make an argument with a sort of straight face that those reasons would justify adding the question to the census.  The four most liberal members thought that it was clear that the Administration had a solution designed to achieve a political end and went searching for a problem that would justify their proposal.  The deciding vote was Chief Justice Roberts who continued a history of occasionally throwing liberals a bone while pushing a conservative agenda.  Because he had the four conservative justices joining him on the conservative part of the opinion and the liberal justices joining him on the liberal part of the opinion, the Chief Justice’s opinion is an opinion of the “Court” (i.e. it had five votes, so it is precedent for lower courts).

The Chief Justice’s opinion first gives this Administration broad authority to act.  It finds few if any limits on the Census Bureau’s ability to place questions on the census in the statutes governing the census.  It also recognizes that the Census Bureau is entitled to use the census to obtain whatever information the Census Bureau (or the Commerce Secretary) deems is useful.  It also gives broad authority to the Commerce Secretary to determine what weight to put on the information developed by the experts in evaluating the potential questions.  So even though the best characterization of the record is that the question is likely to interfere with the primary goal of the census (an accurate enumeration of all people in the United States), the Commerce Secretary has the power to disregard that evidence as “speculative.”  Continue Reading...

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Supreme Court — The Final Push

By tmess2 | Published June 25, 2019

We are down to the last two (probably) opinion days of the term.  We know that the Supreme Court will be issuing opinions tomorrow (Wednesday).  More likely than not, the last opinion day will be Thursday, but there is still a possibility that it might be on Friday or there could be opinion days on both Thursday and Friday.  For the past several opinion days, there have been four opinions per day which would imply only two opinion days but things could change.

Besides continuing the pace of four opinions per day, Monday was a day of follow-up cases with the two biggest opinions being Brunetti and Davis.  Brunetti involved the law on registering trademarks, in particular a provision barring the registration of immoral or scandalous trademarks.  Following up on Tam which had struck down a provision barring the registration of disparaging trademarks, the Supreme Court unanimously struck down the bar on immoral trademarks and by a 6-3 vote struck down the bar on scandalous trademarks (although some justices suggested Congress might be able to adopt a narrower bar on profane trademarks that might survive review).  Davis involved the “residual clause” — a clause placed in several criminal and immigration laws as a catch-all to the definition of violent crimes which includes crimes that by their nature involve a substantial risk of the use of physical force.  In several previous cases, the Supreme Court has found that particular versions of this clause were “void for vagueness.”  In Davis, the Supreme Court struck down the residual clause in the statute barring the use of firearms in a violent crime.

With eight cases left, the tea leaves are becoming clearer.  And that is generally not good news.  We have one case left from each of the December, January, and February argument sessions.  There are three cases left from March (although it is possible that the two partisan gerrymandering cases will be consolidated).  Finally, there are two cases left from April.  Continue Reading...

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Supreme Court — Eight Down, Twelve to Go

By tmess2 | Published June 22, 2019

On Thursday and Friday, the Supreme Court issued eight opinions in cases.  That leaves twelve cases still pending (including the two partisan gerrymander cases from March and the census case from April) heading into the last week.  Given that the Supreme Court has been issuing four opinions per day, it is likely that they will be adding two more opinion days to Monday’s opinion/order day.

The big story of this term continues to be that know precedent is safe from reconsideration by the “conservative” majority.  In four separate cases, there was a suggestion that the governing case be overruled or, at least, substantially modified. 

Gundy involved a provision of the Sex Offender Registration and Notification Act.  The provision occurs in the section governing when individuals subject to the Act need to register.  The other provisions in this section dictate when new offenders have to register.  The questioned provision leaves it up to the Attorney General to establish the rules for when prior offenders have to register.  For the first time in decades, the Supreme Court was considering whether such a delegation violated the non-delegation doctrine (barring giving legislative power to an executive official).  Prior to 1940, this doctrine was used to undermine the early regulatory agencies.  Currently, the rule is that — as long as the statute granting the power to adopt regulations contains some “intelligible principle” — the delegation is merely about how to implement the legislative scheme and is valid.  This case resulted in a 4-1-3 split (as it was argued in the first week of October before Justice Kavanaugh joined the Supreme Court).  The four in the majority found — given the rest of the act and the rest of the section — that the Act had the goal of eventually requiring all sex offenders to register and that the delegation to the Attorney General was merely to establish the timing of when prior offenders would have to register.  The three in the dissent declined to infer such a principle — broadly reaffirming the validity of the non-delegation doctrine and strictly reading the requirement for an “intelligible principle.”  The fifth vote in the majority came from Justice Alito who indicated that he wanted to reconsider the last eighty years of cases on the non-delegation doctrine and only voted in the majority because there are worse examples than the Act.  (Basically a dissenting opinion styled as concurring in the judgment because a 4-4 vote would have resulted in an order showing the lower court affirmed by an equally divided court without opinions setting the stage for a drastic revision of the non-delegation doctrine once Justice Kavanaugh is able to sit on one of these cases (which may take some time as many of the regulatory cases come from the D.C. Circuit).  Only time will tell what these revisions might mean for the Securities Exchange Commission, the Environmental Protection Agency, the Food and Drug Agency, and the Equal Employment Opportunity Commission. Continue Reading...

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June and the Supreme Court

By tmess2 | Published June 1, 2019

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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Supreme Court and Sexual Orientation

By tmess2 | Published May 12, 2019

While we wait for the major decisions from this term over the next seven weeks, the Supreme Court has added three cases for next term (likely to be argued in the Fall and decided next Spring) involving sexual orientation and employment.  Two cases involve gay men who allege that they were terminated for being homosexual and one involves a transgender individual who alleges discrimination based on that status.  While at the lower court level, all three claimed, in part, that one of the factors in the employment decision was their failure to comply with gender stereotypes (i.e. they did not conform to the employer’s expectations for male behavior), that claim is only part of the Supreme Court case for the transgender individual.

These cases are going to be difficult for the employees to win, especially the two gay men.  Their claim is statutory, based on Title VII (of the Civil Rights Act of 1964 as amended) which bars discrimination in employment “because of sex.”  And the natural reading of “because of sex” is “because of gender.”  That is the way that the Supreme Court has always read the provision.  And, even today, many states and government agencies use “sex” when they mean gender (e.g., on driver’s licenses and application forms).  The arguments of the employees is hindered by the fact that their claim is statutory rather than constitutional.  Other than the most conservative justices, the justices are somewhat willing to apply constitutional texts and principles to new issues.  Put simply, a constitutional amendment is viewed as an extraordinary thing.  Thus, if a claim is similar enough to existing constitutional protections, courts will sometimes find that it fits under those protections. 

On the other hand, notwithstanding the current problems in Congress, courts tend to see statutory problems as something that the legislature could fix if the legislature wanted to fix the problems.  And Congress has failed to pass proposed legislation that would amend Title VII to include sexual orientation (or create Title VII-type protections against discrimination based on sexual orientation).  Continue Reading...

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The Supreme Court and the Census

By tmess2 | Published April 18, 2019

If you have been a follower of this site since the beginning, you know that we think that the Census and redistricting are very big things.  Getting an accurate count and fair lines tends to help the Democrats win elections. 

At the same time, we have also been big followers of the Supreme Court.  For good or evil, both sides of the political spectrum have learned that, if you lose the battle in Congress or with an executive agency, you can turn to the courts to continue the battle.  And many of these fights ultimately get decided by the Supreme Court.

By the time that this posts, we will be at the end of the first week of the last argument session of the October 2018 Term.   (For brief explanation of argument sessions and review process, see appendix.)  On Tuesday of next week, the United States Supreme Court will hear a case that combines our focus on the Supreme Court and our focus on the Census — U.S. Department of Commerce vs. New York.  Continue Reading...

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The Supreme Court and Redistricting — Again.

By tmess2 | Published March 9, 2019

Next Monday, the Supreme Court begins its March argument session.  Over the following two weeks, the Supreme Court will hear three case on redistricting.  These cases represent the fifth consecutive year in which the Supreme Court is looking at the rules for redistricting.  While memory is always a tricky thing, I can’t remember a redistricting cycle in which there were these many cases this late in the cycle.  At this point, these cases are more about setting the ground rules for 2021 than getting valid lines for the 2020 election (as, regardless of the decisions in these cases, the lower courts will not have much time to redraw the lines or have those new lines reviewed before 2020).

The session starts on March 18 with another look at the lines for the Virginia House of Delegates.  Two years ago, the Supreme Court found that the trial court applied the wrong standard in considering whether the Republicans in the legislature had improperly considered race in drawing those lines.  On the reconsideration ordered by the Supreme Court, the trial court changed its earlier decision and found that race improperly predominated in the line drawing decisions.  As with earlier cases this cycle, this latest racial gerrymander case involves the fine balancing of the interests of the Voting Rights Act (requiring the State to create majority-minority districts) and the Equal Protection Clause.  The question in these cases ultimately are two questions.  First, whether in the name of creating winnable districts for minorities, the legislature is actually engaged in packing more minorities into the district than is really necessary to meet the requirements of the Voting Rights Act.  Second, whether the districts created are such a departure from the normal districting principles that the lines are clearly the result of a racial gerrymander. 

In previous cases, the Supreme Court has rejected the concept of a one-size-fits-all approach to how many minorities an individual district must have to give minorities the ability to elect the candidate of their choice.  The last time that these districts were in front of the Supreme Court, the majority found that the record showed that the legislature had used such a mechanical rule, drawing the lines so that each of the twelve minority districts had a voting-age population which was at least 55% African-American.  The question on remand (and the issue on appeal) is whether that percentage was appropriate given the history of voting in these area and, assuming that it was not, whether the lines drawn were still appropriate give the other concerns (compactness, contiguity, incumbent protection, existing community lines, etc.) that traditionally govern the redistricting process. Continue Reading...

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Supreme Court: Mid-term Update

By tmess2 | Published January 6, 2019

The  Supreme Court is set for a somewhat early start for its January arguments session.  While the Supreme Court has yet to release its calendar for the March and April argument sessions, we do have some idea of the general numbers for the remainder of the term.  There will be ten new cases (and one reargument) in January, eight new cases in February, and up to nine in March.  There are still some opportunity to add cases to the April docket, but for now there are four additional cases that could be set for argument in April.


Starting with the rearument case for January, that case is a Takings Clause case.  In 1985, the U.S. Supreme Court essentially held that a person claiming an improper takings without adequate compensation had to pursue their claim for adequate compensation in state court.  Because every state provides a mechanism for litigating the adequacy of compensation, this requirement essentially eliminates the ability to raise the federal aspect of the claim in federal court.  Conservatives do not like this rule and have been questioning it since it was created.  This case was originally argued in front of an eight-justice court in October.  Then it got set for re-argument in January.  While the order scheduling the case for reargument includes the fig-leaf of requesting additional briefing on a point raised during the first argument, it doesn’t take a rocket scientist to guess that the justices were split 4-4 and that it is now up to Justice Kavanaugh to break the tie. 

Also up for argument in January is Merck.  As the party name should suggest, this case is about pharmaceuticals.  Federal law controls the contents of the warnings that a drug company must give about the side effects, but that law also requires the drug companies to provide adequate information to the FDA.  If the company complies with these rules and the FDA determines that the label need not warn about a potential side effect, then injured patients may not bring a cause of action based on the failure to warn.  The problem is that the FDA does not always provide a conclusive rejection of any warning and merely turns down the warning as drafted.   The injured patients are contending that the rejected warning was poorly drafted and that a properly drafted warrant might have been accepted.  As such, the company may not use the rejection of its warning to bar a claim based on a slightly different warning. Continue Reading...

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