Tag Archives: Supreme Court

Supreme Court 2016-17-Two Weeks Left

By tmess2 | Published June 17, 2017

One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend.  (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible.  Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.)  That will make for a very packed last two weeks.  It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term.  For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term.  This year, they have only heard 64 cases.  The last two weeks of the terms have seen the court issuing between 9 and 17 opinions.  This year, we still have 17 cases waiting for opinions.  (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)

Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks.  In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22).  But last second “non-substantive” edits that delays the Court’s printshop from having all of  the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term.  (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues.  In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases.  Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case.  In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)

As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term.  Of course, the number of outstanding opinions does make it a little bit harder this year.  The general rule of thumb is that the Supreme Court tries to keep the workload balanced.  With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions.  Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month.  At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch).  If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions.  If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions.  The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around. Continue Reading...

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Birth Citizenship — Supreme Court sends issue back to Congress

By tmess2 | Published June 13, 2017

There are two ways that a person can be a natural born U.S. citizen.  First, under the Fourteenth Amendment, they can be born in the U.S.  Second, they can be born to U.S. citizens.  For this second category, Congress has established some conditions that must be met related to how long the U.S. citizen parent has resided in the U.S.

Looking at this second categories, there are eight possible combinations of three crucial factors — is the mother a U.S. citizen; is the father a U.S. citizen; and are the parents married.  (Actually, there are six, if neither parent is a U.S. citizen, the child can’t inherit citizenship from her parents.)  Having six different combinations in which at least one parent is a U.S. citizen, Congress has enacted different rules based on which parent is a U.S. citizen.  In particular, an unwed U.S. citizen mother has to spend less time in the U.S. than an unwed citizen father or married couples in which one member is a U.S. citizen.  Earlier this week, the Supreme Court issued an opinion on the constitutionality of these rules.

The case involved a man facing deportation.  That man’s father was a U.S. citizen but had left the U.S. twenty days before meeting the statutory requirements for conveying citizenship to his children.  As such, even though the father had returned to the U.S. with his family (including the person seeking citizenship in this case), the man was not entitled to automatic citizenship and — because he had not sought naturalization — could be deported. Continue Reading...

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Supreme Court 2016-17: Forthcoming Opinion Watch

By tmess2 | Published April 30, 2017

Like much in government (including the school-year that many of us remember from growing up), the Supreme Court follows a cyclical calendar.  Beginning with the first Monday in October, the Supreme Court has seven argument sessions each year.  Each session is two weeks followed by a recess.  Five of these recesses are for two weeks, but the recesses taken over Christmas and after the January arguments are usually for four weeks.  During these approximately thirty weeks, the Supreme Court is engaged in three basic tasks:  1) reviewing applications from parties that want their cases heard by the Supreme Court; 2) preparing for and holding arguments in those cases that have been accepted; and 3) writing opinions.  Because the task of preparing for arguments (reading the written arguments of counsel and reviewing the record from the trial court to get an idea of the “facts” underlying to which the law has to be applied) is time consuming, opinions tend to slowly dribble out during these first thirty weeks.  As a result, when the arguments end in late April (or early May depending upon the calendar), there are typically a significant number of cases still waiting for opinions.

During this year’s term, as is not unusual, there were a handful of opinions issued in December and January (a total of six) with the number going up slightly during February, March, and April (a total of twenty-one so far with the possibility of several more on Monday before the Supreme Court leaves for its final recess.  However, with arguments for the year having wrapped up this past Wednesday, there are currently thirty-eight cases in which opinions have not yet been issued.  While there are some exceptions to the rule, by this time of year, the Supreme Court has issued opinions in most of the cases heard last Fall.  During the argument portion of the year, it takes between two and six months to get an opinion.  The simple cases in which there is unanimous agreement among the Justices (which represent about half of the cases) tend to come quickly.  When the Justices disagree, the process stretches out as the Justices in the minority draft opinions responding to the majority opinion, and the majority opinion then makes changes to address the issues raised by the minority (and so on until everyone believes that no further changes are needed).    The bottom line is that, at this point of the year, opinions have been issued for all of the October arguments, for about two-thirds of the November and December arguments, for about half of the January and February arguments, and for none of the March and April arguments.  The expectation, especially for the remaining cases from November and December, is that the delay represents some significant disagreement in the early cases.

Before going into the highlights of what is left to come down — either on Monday or more likely between mid-May and the end of June when the Supreme Court returns from its last recess — one point to make.  Justice Gorsuch only participated in the arguments for this last two-week session.  The tradition is that a Justice does not vote in cases heard before the Justice joined the Supreme Court.  However, it is not unusual to schedule a case for re-argument if the a Justice joins the Court after argument and the vote of the eight Justices who heard the case is split 4-4. Continue Reading...

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The Week in Review

By tmess2 | Published March 25, 2017

There is an old saying that a week is a lifetime in politics.  In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching).  It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.

The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act.   There are several significant aspects to this non-event.

First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years.  While Trump may have been a great negotiator, it is very easy to reach a two-sided deal.  (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions.  He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board.  This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy.  At that point, it’s not really about negotiating but selling. Continue Reading...

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The Never-ending Battle — Redistricting 2011

By tmess2 | Published March 5, 2017

One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate.  The same is unfortunately true of disputes over the redistricting process.   We are now almost six years into the current ten-year cycle of district lines.  The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again.  You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over.  Unfortunately, we are not at that point yet.

This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission).  This week’s decision involved the Virginia House and whether the  drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment.  The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race.  Such a challenge focuses on particular district lines.

In this case, the challenges concerned twelve districts.  The original three judge panel found that race was only the predominate reason for one of the twelve districts.  In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations.  While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason. Continue Reading...

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Transgender Rights and the Supreme Court (UPDATED — 3/6/17)

By tmess2 | Published February 25, 2017

At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students.  After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration.   (Updated 3/6/17 — This morning, the Supreme Court sent the case back to the Fourth Circuit for reconsideration.)

As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females.  The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender.  At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender.  When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required.  When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation.  In taking the case, the U.S.  Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.

Because the Fourth Circuit decision relied on a judicial doctrine (Auer deference) that dictates that courts should defer to an agency’s interpretation of its own regulation, it was dependent on the agency not changing that interpretation.  When the Supreme Court took the case in October, the Department still interpreted the regulation consistent with the student’s position in this case.  After Trump won the election, it was unclear whether the new administration would change its interpretation of the regulation. Continue Reading...

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Supreme Court and Politics

By tmess2 | Published October 29, 2016

no_more_hate (2)In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree.  By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular.  Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies.  The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices.  (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years.  Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)

The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics.  To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much.  However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election.  This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split).  Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines.  That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review.  While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.

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What If (the Republicans Try to Dump Trump)?

By tmess2 | Published October 9, 2016

Heading into tonight’s debate, the Republican Party is very uneasy.  Even before Friday, things were not going well in Trump land — a poor debate performance, his taxes, his connections to Russia, his record of disgraceful behavior towards women, minorities, and the disabled.  Then came Friday’s latest revelation that Trump is an even bigger cad than we thought.  As Donald Trump continues to implode, the question is what options exist for the Republican establishment to salvage the election.  The problem for the Republican establishment comes in two forms — the political and the legal.

The political problem is the fourteen million people who voted for Trump in the primary (and some additional like-minded people who did not vote in the primary).  While some of these voters might now think that Trump has finally stepped over the line, many of them still support Trump or would be upset if the Republican leadership tried some form of coup to replace Trump.  If eight or nine million Trump supporters declined to support the rest of the Republican ticket (about 5% of the vote nationally), that could make a difference in several races.  On the other hand, Trump — like Todd Akin in 2012 — could become a lead weight pulling down the rest of the party.  From the point of view of the Republican establishment, the best strategy may be quietly shifting resources to states with key Senate, House, and Governor’s races (particularly as Trump lacks a coherent strategy to begin with) and pretending that Trump does not exist.

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Supreme Court Preview Part Four — Cases in the Pipeline

By tmess2 | Published September 24, 2016

On Monday, the Supreme Court will meet in what is commonly called “The Long Conference” — reflecting the fact that its been three months since the Justices last met to consider petitions for review (officially petitions for a writ of certiorari) creating a long list of cases to consider.  Maybe Monday afternoon, maybe later in the week, the Supreme Court will announce which cases it will hear arguments on.  The following Monday (October 3), the new term officially begins and the Supreme Court will issue an order list which will, at the very least, contain a long list of the cases that it has decided not to review on the merits.

Predicting which cases the Supreme Court will actually take is almost impossible.  The Supreme Court receives almost 10,000 petitions per year but only grants full review on about 70-80 cases.  Of course, a lot of the petitions are clearly long shots — many written by the petitioners themselves — that simply assert error in the lower courts without giving any reason why the case matters to anybody other than the petitioner.  But even after eliminating the chaff, there are way more cases that raise significant issues than the Supreme Court will take.

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Supreme Court Preview Part Three — December (?) Arguments

By tmess2 | Published September 22, 2016

As noted in Part One of this series, the Supreme Court has not yet announced its December argument schedule.  However, they have eleven cases that they have accepted for review and six argument dates in December.  While it is possible that the Supreme Court might postpone some of these cases to January, there are enough available argument slots in December to hear all of the cases currently on the argument docket.

Looking at the cases accepted, there are the three cases from last January that have been postponed to December (discussed more below).  In addition from the cases accepted in June, there are two re-districting cases, an intellectual property case, a bankruptcy case, a capital punishment case, an anti-trust case involving credit cards, an immigration case, and a federal criminal case.   The contentiousness of these eleven cases might result in some of these cases being pushed even further back in the hope that a ninth justice might arrive this term.

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