Tag Archives: Supreme Court

Supreme Court Midterm Report

By tmess2 | Published January 26, 2016

When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone.  The first argument day of each term is always the first Monday in October.  There are other key points in the term, but they float a bit.  One of those floating dates is the Monday after the last January argument.  That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules.   Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case.  Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October.  That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June.  With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.

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2016 — The Year Ahead

By tmess2 | Published January 10, 2016

January is a traditional time for looking ahead.   The last year of a President’s second term also tends to focus political attention on what the next Administration might look like.

In some ways, the Democrats start this year in good shape, but, in other ways, the Democrats are looking at continuing serious problems.  On the positive side, the Democratic presidential primary field is down to three national candidates.  Depending on the results in the early states, the Democratic nominee should be decided by mid-March allowing the party to focus on November.  Additionally, the economy looks to be in good shape.

Continue Reading...

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Equal Representation and the Supreme Court

By tmess2 | Published December 20, 2015

Earlier this month, the United States Supreme Court heard arguments in Evanwel vs. Abbott.  The issue in this case is how to measure population for the purposes of determining if districts have roughly equal population.  The challengers are asserting that population should be based on voters rather than the total population.  The State of Texas is claiming that each state gets to choose the appropriate measure of population.  This case involves both theoretical discussion of the nature of representation as well as very serious political impact.  The decision could vastly alter the politics of the U.S.

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Supreme Court and Abortion Politics

By tmess2 | Published November 15, 2015

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. Continue Reading...

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Supreme Court Term 2015-16:Part Two

By tmess2 | Published September 26, 2015

When the Supreme Court meets on Monday in what is commonly referred to as the “long conference” (because it covers three months worth of petitions that have piled up during the summer), it will begin the process of filling the second half of its argument schedule — cases that will be decided by the end of June.  As with the cases already set for argument this fall, there will be a mix of criminal cases, routine matters of statutory interpretation, and the politically explosive.  While the criminal cases and the statutory cases are important to practitioners and businesses, it is the politically explosive cases that I will focus on for this blog.

In recent years, the Supreme Court has changed how it grants cases.  In the past, the Supreme Court tended to accept or reject a case immediately (at its initial conference).  However, after several cases had hidden problems (preliminary issues that had to be addressed before the Supreme Court could reach the issue presented in the petition), the Supreme Court has tended to “relist” (postpone consideration to a later conference) the cases that it is seriously considering granting to take a closer look for such potential problems.  In addition, even putting aside the large number of petitions with little or no chance of being granted, there are more cases that raise significant issues than the Supreme Court is inclined to take.

In the current conference, one potentially interesting case involves a criminal prosecution from Puerto Rico.  Generally, federal law recognizes a “dual sovereign” exception to the rule against double jeopardy (that you can’t be tried twice for the same offense).  Thus, for the same course of conduct, a person can be charged by multiple states or by a state and the federal government.  The issue in this case is whether Puerto Rico is a separate sovereign from the federal government.  While legally, this case is probably not a close issue, the impact of the Supreme Court explaining Puerto Rico’s current status (essentially a territory of the U.S. with any home rule being by grace of Congress) could crystalize the debate over Puerto Rico’s status. Continue Reading...

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Supreme Court by the Numbers and the 2016 Election

By tmess2 | Published July 26, 2015

Wrapping up the 2014-15 Supreme Court Term, the most significant number is four.  That is the number of Justices who are over 75.  Justice Ginsburg is 82; Justices Scalia and Kennedy are 79; and Justice Breyer will turn 77 in August.  While Justice Stevens did not retire until he was 90, it is more likely than not that these four Justices will retire soon.  Given that this group of four is split 2-2 between the conservative wing of the Supreme Court and the liberal wing of the Supreme Court (and Justice Thomas, the next oldest Justice is ten years younger than Justice Breyer), control of the Supreme Court for the next decade may depend upon what happens in the 2016 election.

The next key number is 30 out of 66.  That is the number of cases that were decided by a 6-3 or a 5-4 vote.  With almost half of the cases from this term within two votes of swinging the other way, moving from a 5-4 Republican majority to a 7-2 Republican majority or a 6-3 Democratic majority could alter a lot of the decisions in these close cases or result in additional cases firming up the rule recognized this past term.

Next is 13 out of 19.  That is the number of 5-4 decisions in which Justice Kennedy was the deciding vote in what was otherwise a 4-4 split between the more conservative Justices and the more liberal Justices.  (Justice Kennedy went with the liberals 8 times and the conservatives 5 times.) Continue Reading...

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Supreme Court and Free Speech

By tmess2 | Published July 19, 2015

One of the broad themes of the Roberts Court has been an expansive interpretation of free speech rights (best exemplified by its campaign finance cases).  Over the past seven terms, the Supreme Court has heard twenty-four cases with some free speech aspect.  Despite the public perception, the Supreme Court has not uniformly held in favor of free speech (free speech only having clear wins in 14 of the twenty-four cases and partial wins in 2 of the twenty-four cases).  This term, however, was the roughest term for free speech advocates since at least 2009.

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Civil Rights and the Supreme Court

By tmess2 | Published July 12, 2015

Depending on how you define a civil rights case, this past term was, at least, on the surface a very good year for civil rights groups.  I say on the surface because some of the “wins” were only partial wins.  Of the cases most viewed as “civil rights” cases, the side seeking to protect/expand civil rights won 4-6 cases and the only loss was on a procedural issue.

It was a particularly good year if your claim involved religious discrimination.  In Holt v. Hobbs, the Supreme Court found (in a rare win for an inmate) that Arkansas had to permit an inmate to have a half-inch beard under the Religious Land Use and Institutionalized Persons Act.  In E.E.O.C. v. Abercrombie & Fitch, the Supreme Court held that a person suing an employer for religious discrimination need only show that the employer’s perception of the possibility that the prospective employee would need a religious accommodation was one of the factors behind the decision to not hire that person.  (In this case, the applicant was a female Muslim who wore a hijab to the interview.  While the applicant’s religious beliefs were not expressly discussed during the interview, the store declined to hire her based on the belief that she would want an exemption from the company’s policy that employees could not wear any head covering.)

In a very technical decision, in two companion cases out of Alabama, the Supreme Court indicated that — even though preclearance is no longer required — the rules against a racial gerrymander of legislative districts will still have bite.  This case has already had a cascading effect on other reviews of the lines drawn for the 2012-20 elections.  Of course,  the fact that we are on the eve of the third round of elections under these lines is one of the reason why pre-clearance was such a big deal. Continue Reading...

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Green Light for Redistricting Commissions

By tmess2 | Published June 29, 2015

In several states, voters (not trusting their legislators to be able to resist “stacking the deck” when drawing congressional district boundaries) have opted to take that power away from their legislators and place it with a non-partisan commission.  Today, in a 5-4 decision, the United States Supreme Court found that the U.S. Constitution gave the voters of the states the right to choose this method for drawing congressional district lines.

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Marriage is a Fundamental Right

By tmess2 | Published June 26, 2015

Most people would not debate that statement.   And the Supreme Court has previously recognized that basic principle.  Some, however, believe that their definition of marriage is the only definition of marriage that has ever been recognized in this country.  Today, in a 5-4 decision by Justice Kennedy, the majority of the Supreme Court thoroughly set forth the historical facts showing that the definition of marriage and what it means to be married has been ever-changing throughout history.  In light of the ever-changing nature of marriage, laws banning gays and lesbians from marrying their preferred partners simply represented discrimination against gays and lesbians, violating the equal protection clause.

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