Tag Archives: Supreme Court

Supreme Court Mid-Term Update

By tmess2 | Published January 7, 2023

As a New Year starts, the Supreme Court returns on Monday for the first of four argument sessions.  This term is already shaping up as a weird term.  By the fourth argument session of the term, you typically have at least one opinion from an argued case and a handful of opinions granting summary reversals in cases in which the lower courts clearly erred.  While the bigger “political” cases normally take longer, the Supreme Court also takes “routine” cases that simply involve conflicting interpretations of statutes and regulations by different circuits.  It is not unusual for these cases to be resolved by unanimous opinions.  Maybe it’s just that none of the October cases (with the exception of the Andy Warhol case) fits that criteria, but the lack of an opinion is unusual.

At this point, the first half of the term saw some rather significant cases that will undoubtedly get attention when they are decided — the Voting Rights Act dispute regarding Alabama’s new district lines and the failure to create a second majority minority district (which will also impact the lines in Florida, Georgia, and Lousiana); the challenges to the Affirmative Action programs at Harvard and the University of North Carolina; the challenge to the Indian Child Welfare Act; challenges to the ability of Immigration and Customs Enforcement to set priorities related to deportation; whether state courts can use state constitutions to regulate congressional redistricting; and whether there is a free speech exception to civil rights laws (specifically those barring discrimination based on sexual orientation).

The January session should be relatively quiet.  There are two labor cases on the docket — one involving the weird hybrid status of certain national guard employees and whether that hybrid statute makes them subject to certain protections for federal workers and the other whether an employer can maintain a state tort against a labor union for timing the start of the strike to damage the property of the employer. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 2)

By tmess2 | Published September 28, 2022

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 1)

By tmess2 | Published September 24, 2022

It’s that time of year again.  After upending the Constitution at the end of the 2021-22 term in June, the Supreme Court begins its 2022-23 term in just over a week.

A quick refresher.  From October through late April/Early May., the Supreme Court will have seven two-week argument sessions.  With the exception of extended breaks after the “December” and January argument sessions, the typical schedule is two weeks of arguments followed by a two-week recess.  In most of the weeks, the Supreme Court will have arguments on Monday, Tuesday, and Wednesday (except when one of those days is holiday — either legal or religious).  On argument days, the Supreme Court will usually hear two cases in the morning.  (That “usual” is very flexible.  With the declining number of cases granted in recent years, we have been seeing more single argument days.  Additionally, if there is a very complex case, they might give that case extended time and limit themselves to one case.  Rarer is having enough cases that they also schedule an afternoon argument.)  They will then meet in a “conference” on Friday to discuss the cases heard that week and to consider petitions for review (officially called petitions for certiorari).  They also meet in a conference on the Friday before the argument session to consider petitions for review.  Orders on the petitions for review are released on the Monday after the conference.  In discussing the cases heard, the Supreme Court will take a tentative vote and the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice) will assign one of the justices to write an opinion. Opinions can be released at any time after the argument.

The October argument session (and the term) officially begins on the first Monday in October (October 3, this year).  They will meet in the “long conference” to kick off the term on September 28.  (It is called the long conference because petitions for review have been piling up since the last conference of the 2021-22 back in late June.) Continue Reading...

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The Supreme Court — Faux Originalism and the Reactionary Ascendency

By tmess2 | Published June 26, 2022

This is a hard week to post about.  There were three opinion days this week.  And each one featured a new decision that ripped at the fabric of modern society and featured a rewriting of history in the service of originalism to allow the reactionary members of the court to push through an agenda that lacks electoral support based on a misreading of the Constitution.

Tuesday started off the week with Carson vs. Makin, the Maine school voucher case.   Traditionally, there have been two prongs to the Free Exercise Clause — one prong involves the power to follow one’s religious beliefs without penalty and the other prong involves discrimination based on religion.  Posed against the Free Exercise Clause is the Establishment Clause which forbids the government from establishing an official religion or religions.  Traditionally, the big fights have been in the “no penalty” prong.

On the penalizing religion prong, the battle has always been the reasonableness of the proposed accommodations measured against the significance of the government interest.  And in the late 1980s, after one of the low points of religious freedom in which Justice Scalia basically limited this prong to the right to have beliefs without penalty for those beliefs (but no right to act on those beliefs), Congress overreacted by enacting the Religious Freedom Restoration Act which went to the other extreme.  The RFRA and the Free Exercise Clause are on the verge of being interpreted as allowing people to claim religious exemptions from civil rights laws.  And we are likely to see another case in this prong later this week allowing a coach at a public school to pray publicly while on the job at a school function. Continue Reading...

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Supreme Court Update

By tmess2 | Published June 20, 2022

The last week was both busy and quiet on the Supreme Court front.  The Supreme Court handed down eleven decisions reducing the number of pending cases to eighteen with two weeks to go.  Only two of the cases were medium big, and the really big cases will be decided in the last two weeks.  With the Juneteenth holiday, the Supreme Court will be releasing opinions tomorrow (Tuesday) and Thursday.  For the last week of June, Monday will be an opinion day.  Depending on how many opinions are left after June 27, there will probably be additional opinions on June 29 and, maybe, June 30.  Expect Dodds and New York State Rifle to come the week of June 27.

This week, the two big decisions were in American Hospital Association v. Becerra and Arizona v. City and County of San Francisco.  Both of these are bigger for what they did not say than for what they actually held.

American Hospital Association involves the rules for hospital reimbursements for Medicare.  For years, conservatives have been challenging a judge-made rule (Chevron deference) which dictates that courts should uphold reasonable rules implemented by administrative agencies based on a reasonable interpretation of statutes.  So far, the U.S. Supreme Court has not officially overruled Chevron.  Instead, they are whittling it away through decisions like American Hospital Association.  The courts are doing this by narrowing the field of what is a reasonable interpretation of statutes. Continue Reading...

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Supreme Court — End of Term Preview 2022

By tmess2 | Published June 12, 2022

Normally, by this time of the year, the Supreme Court term is coming into focus.  With three weeks to go, typically, there is one or two cases left from the Fall.   While there are always question marks, it is possible to try to figure out results in the key case by who is in the running for getting the remaining opinions from a month.

This year is different.  There are still 29 opinions outstanding out of 62 cases.  While there have been years with more opinions outstanding heading into the last three weeks, those years were back when the Supreme Court was hearing a lot more cases per year.

To date, almost all of the opinions have been in cases that (other than the parties) mostly interested those practicing in that field.  The biggest attention getting case was the decision reinstating (at least for now) the death penalty against the surviving Boston Marathon bomber.  The legally biggest case of the year so far also came from Boston in a Free Exercise/Free Speech case involving Boston’s refusal to let a Christian group use one of the city’s flagpoles in connection with an event even though it routinely gave such permission to nonreligious groups.  That decision may be an indicator of the likely result in some of the remaining cases, but it was merely a continuation of the recent trend in Free Exercise cases. Continue Reading...

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The Supreme Leak

By tmess2 | Published May 3, 2022

Last night an unprecedented leak revealed an unprecedented bombshell.

Most courts are rather tight-lipped about cases that have been heard but not decided.  Judges and the support staff that works for them understand that, for multiple reasons, they should not talk about a decision until it is officially released.

Now, no system is perfect, and periodically, there are leaks about the internal operations of the court.  But, to the best of my knowledge, there has never been a leak of a draft opinion prior to the official release of the official opinion. Continue Reading...

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The Supreme Court this Week — Puerto Rico and Signs

By tmess2 | Published April 24, 2022

We are nearing the turn for home of the current Supreme Court term.  This upcoming week is the last week of arguments for the term.  After the upcoming Friday conference, the Supreme Court will take its last two-week recess which will be followed by several weeks of issuing opinions until all of the opinions are done.

Thursday saw the first large opinion dump from the Supreme Court.  This post will focus on the two with the most political significance.

First up is the latest on Puerto Rico.  The U.S. Constitution implicitly assumes that territorial status is temporary with Congress having ultimate control over the territory and the laws that apply in the territory until it can become a state.  On the other hand, once a territory becomes a state, it has equal status to other states. Continue Reading...

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Sentencing — What you need to know to discuss the GOP’s fraudulent charges against Judge Jackson

By tmess2 | Published March 26, 2022

As always, the Party of GnOP has found multiple issues to attack a minority candidate that are based on a gross distortion of realities.  The big charge has to do with how Judge Jackson has been imposing sentences for child pornography.  To understand the allegations, you first need to know the basics.

When Congress or state legislators pass a criminal statute, they establish a penalty for a violation.  With limited exceptions, most statutes do not establish a precise penalty.  Instead, they create a range of punishment.  The concept behind having a range of punishment is to permit individualized punishment.  However, in creating a range, the legislature is attempting to define the penalties that are appropriate for most cases.  Thus, for example, stealing a car might have a penalty of up to seven years.  That’s not a decision that seven years is the appropriate penalty for the offense.  Rather, it’s a decision that a case that merits more than seven years will be so rare that it makes sense to take such a long sentence off the table.  On the other hand, murder might have a range of ten years to life.  Again, that’s not a decision that ten years is the appropriate penalty in any specifc case, but that the cases in which a sentence of lower than ten years will be so rare that it makes sense to take penalties less than ten years off the table.  For some statutes, often referred to as mandatory minimums although that is inaccurate as all offenses have statutory minimums, the law precludes a court from considering probation as an alternative to the authorized sentences.

In addition to the statutes defining range of punishment, most jurisdictions have a set of statutes defining what courts should consider in imposing sentences.  For federal courts, the law requires the court to consider four factors, but those factors are what most scholars have discussed for decades as the four considerations that are appropriate in sentencing.  The first factor is retribution — i.e. what is an appropriate penalty for the conduct.   The second factor is deterrence — creating a disincentive for commission of a crime.  This factor is both individual (what will teach this offender a lesson about the consequences if he reoffends) and collective (what punishment will scare othe potential offenders).  The third factor is incapacitation — what is needed to prevent this offender from reoffending.  The final factor is rehabilitation.   The law further requires the penalty to be no greater than is needed to satisfy those four concerns. Continue Reading...

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The Supreme Court and Voting Rights

By tmess2 | Published February 13, 2022

Parties seeking to challenge a new law have to make a choice between filing a case in federal court (assuming that they have a federal constitutional claim) and filing in state court.  Unless you have a favorable state Supreme Court, the usual tendency is to file in federal court.  However, it is becoming very clear that, if you are challenging an illegal redistricting plan, you really have to file in state court as the U.S. Supreme Court will not be give any assistance to plaintiffs.

This week, the U.S. Supreme Court had what should have been a no-brainer.  When faced with a challenge to the Alabama district lines under Section 2 of the Voting Rights Act, the three-judge panel issued a lengthy order which included detailed analysis of the evidence and tracked the governing precedent under Section 2.  Under the existing law (and the plain language of Section 2), the Alabama maps were and are illegal.  Under the legal standards governing a stay (which takes into account the merits and the interests of the parties), there was no basis for a stay.  The Supreme Court should have denied the stay and summarily affirmed the judgment.

But that’s not what the Supreme Court did,   By a 5-4 vote, the Supreme Court issued the stay and put the case on the argument docket for the fall.  Because there is no requirement for opinions on stays, we only know the reasoning of some of the justices.  And what we do know gives a strong hint that the Voting Rights Act is effectively dead. Continue Reading...

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