Supreme Court — October 2022 Term — Update

By tmess2 | Published June 11, 2023

With one week down and three more to go, an updated look at where things stand.  Last week’s post gave some of the basics about reading Supreme Court hints about who might have which opinion.  The Supreme Court has added a second opinion day (Friday) for this upcoming week and the two weeks after that could include three days each with twenty-three cases left to go.

With the decision in the Alabama redistricting case, we now have all of the opinions from October.  As Justice Thomas did not have an October opinion, he is almost certain to have one opinion from November.  As noted last week, a big question mark for November is whether the two affirmative action cases will both produce a signed opinion.  (Because Justice Jackson is recused in the Harvard case, it is less likely that it will be one opinion for the two cases, but the Harvard case might produce an unsigned opinion.)  And depending upon what happens in the affirmative action cases and the student loan cases (which could also end up with only one signed opinion), that will determine whether any justices will have an “extra” opinion through February.

Assuming that we have five opinions coming from November, besides Justice Thomas, the other four justices who could have a November opinion are Chief Justice Roberts, Justice Alito, Justice Kavanaugh, and Justice Barrett.  Based on that line-up, it would be a shock if the Supreme Court upholds affirmative action in college admissions.  It is also an ominous sign for the Indian Child Welfare act case as that group is not known for its concern for Native American interests. Continue Reading...

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Voting Rights Act — A Glimmer of Hope

By tmess2 | Published June 11, 2023

On Thursday, the United Supreme Court issued its opinion in Allen v. Milligan,  a case in which Alabama voters challenged the state’s new congressional district lines under Section 2 of the Voting Rights Act.  As people may remember, due to COVID and the resulting delay in the 2020 census, Alabama completed its redistricting process shortly before filing began.  Although the voters quickly filed their case, and the three-judge panel quickly heard the challenge and issued its decision, a 5-4 majority decided that any change caused by any new lines issued by the judges would be too close to the start of the election process (but that the legislation changing the lines was not) for the judge-drawn lines to be used in the 2022 election.  So the 2022 election was held under the new lines drawn by the legislature while the U.S. Supreme Court decided whether those lines were valid.  In its ruling this week, five justices (with Justice Kavanaugh switching sides and Justice Jackson replacing Justice Breyer) upheld the trial court ruling.

To start with the legal considerations, Section 2 of the Voting Rights Act bars any voting practice or procedure that causes a protected group to “have less opportunity than other” groups “to elect representatives of their choice.”  While Section 2 also contains language disavowing an express requirement of proportionality, previous cases have found that Section 2 applies to redistricting and that it requires those bodies charged with redistricting to consider whether the maps give sufficiently large racial and ethnic groups a fair shot at electing a proportionate number of members.  Basically, this is done by drawing either “minority influence” districts (in which minorities are a large enough percentage of the voters that they can form a majority by aligning with like-minded non-minority voters) and “minority majority” districts. (in which the minority group is over 50% of the likely voters).

The current language in Section 2 was adopted in the early 1980s.  The first major case applying Section 2 to redistricting devised a three-part test.  First, the voters needed to show that minority voters are sufficiently concentrated that there is a reasonable map which would give them an additional minority influence or minority majority district.  In equal protection cases, the Supreme Court has made clear that maps that grossly violate traditional considerations to force geographically dispersed minority enclaves into the same district are forbidden.  Second, the voters must show that the minority group is politically cohesive.  In other words, that a significant majority sees itself as one group and tend to support the same type of candidate.  (For example, it might be harder to show that Asian voters are a group but easier to show that Vietnamese voters are a group.)  Third, the voters must show that the majority group (almost always white voters) will oppose the candidate supported by the minority group.   In other words, the last two parts require showing that racialized voting is still common in the jurisdiction. Continue Reading...

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Convention updates

By Matt | Published June 10, 2023

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Quick Hit — Redistricting and Voting Rights Act

By tmess2 | Published June 8, 2023

Today’s Supreme Court opinions included a 5-4 decision affirming a preliminary judgment invaidating the Alabama Congressional Districts under the Voting Rights Act.  We will have a more detailed analysis of the decision this weekend.  But the quick hit is that this decision will probably result in new lines in Alabama and Louisiana which will include a second African-American majority district in both states.

This decision partially offsets the impact of the weird, blatantly partisan, decision of the North Carolina Supreme Court to revert back to the original map after originally striking that map down, and New York might try to draw a new set of lines.  Thus, the state of play for the House is still up to further legislation action this fall.  But, today was a good day for a more representative House.

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Supreme Court — October 2022 Term — First Look at the Remaining Cases

By tmess2 | Published June 4, 2023

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

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Legal Issues Related to the Debt Ceiling

By tmess2 | Published May 27, 2023

With the Republicans once again playing a game of chicken with the debt limit, there has been a lot of chatter about options that the Biden Administration has if the Republicans continue to make unreasonable demands.

To understand the legal issues, it is necessary to understand the different legislative actions related to the debt ceiling.  First, there are the laws related to the budget process.  There are two key aspects to these laws, the first requires Congress to annually pass a budget resolution.  The problem with this law is that one Congress is unable to bind a future Congress.  So Congress does not always pass a budget resolution.  The key thing to remember is that a budget resolution is a concurrent resolution which means that it has to pass both houses but does not go to the President.  In other words, it is not a law.  Instead, the impact of the concurrent resolution is internal to the legislative process.  The budget resolution sets the broad limits for the two Appropriations Committees in drafting the annual appropriations bills.   Additionally, if a budget resolution passes, the budget resolution triggers the reconciliation process which allows the Senate to pass budget related bills without having to overcome the filibuster.  A budget resolution (like the President’s budget proposal which starts the budget process) will typically contain estimates/target numbers for the other components of the budget.  The budget laws also restrict the ability of the President to refuse to spend or to reallocate the money allocated in the budget.

And here is where we get to the actual laws at issue.  In thinking of the budget, there are three types of laws.  In any budget, there are two sides of the equation:  1) income/revenue; and 2) expenditures.  For the most part, the laws on the income side of the equation are tax laws.  (There are certain other things like mineral leases on federal land and user fees at federal facilities, but the primary source of revenue is from taxes).  By its nature, revenue is not entirely predictable.  If every investor tomorrow decided that now was a good time to sell their current stock holdings and buy an entirely new stock, that decision would trigger a significant amount of capital gains and capital losses which in turn would dramatically alter the total income taxes received by the federal government.  But, while there is a degree of unpredictability, there is also a good amount of predictability — subject to changes in the economic climate. In other words, the revenue estimate for any given year will be close but not exact. Continue Reading...

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Title 8 vs. Title 42 — A Brief Primer on Immigration Law

By tmess2 | Published May 14, 2023

This past week, the expiration of “Title 42” was a big headline in the news.  And, while it is too soon to be sure, it is likely that the expiration may end up being a tempest in a tea pot (not that the MAGA folks will ever admit this reality).  But to the extent that this comes up as a topic, here is some basic (admittedly oversimplified) immigration law for non-lawyers.

One of the major development in law in the late eighteenth and early nineteenth century was the Napoleonic Code in France.  Prior to Napoleon, when laws were enacted, they were recorded and published.  But you would need to search through every annual volume to see what the statutes were on any given topic.  The concept behind the Napoleonic Code was that in addition to the annual volumes of that year’s new statute, there would also be a collection organized by topic of the current laws in effect on a topic.  It took time for the idea to catch on her, but eventually, the U.S. organized its laws into the U.S. Code.

But there is one problem with the code system — where do you place a law in the code that impacts multiple topics.  When it comes to immigration law, most laws impacting immigration are found in Title 8 — the part of the U.S. Code governing immigration and naturalization.  However, there is also a title of the U.S. Code (Title 18) that contains most of the federal criminal statutes — which is why there are some things that are not allowed by Title 8 which are simply improper immigration and not criminal.  And for this discussion, there is Title 42 which contains laws related to Public Health and Welfare. Continue Reading...

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The Supreme Court and State Governments

By tmess2 | Published May 13, 2023

This year’s Supreme Court Term is now in the home stretch.  All oral arguments have been completed, and all that is left is for the Supreme Court to issue the decisions in the case.  (As of May 12, there are still 40 cases left to be decided over the next seven weeks.)  On Thursday, the Supreme Court issues an opinion in one of the sleeper cases of the term — National Pork Producers Council vs. Ross.  

The issue in the case is the validity of California’s laws requiring pork products sold in that state to meet certain criteria related to the proper treatment of the hogs prior to their slaughter.  As one can imagine, pork producers in other states do not like having to change how they raise their livestock in order to sell pork in California.  They would rather be able to find the most lenient state possible and raise their hogs in that state.  So they filed a challenge to the regulation based on the so-called “Dormant” Commerce Clause.  The Commerce Clauses gives Congress the authority to pass legislation that regulates interstate commerce.  Over the years, the Supreme Court has inferred from that grant of authority that their is an implied (or in legal speak, dormant) aspect of that grant of power that limits the ability of states to regulate interstate commerce.

In deciding this challenge, we got a rather unique alignment of Supreme Court justices.  And one of the reasons for that alignment is that Supreme Court decisions are not just about the current case.  They are about the next case.  The partisan politics of the Supreme Court (and it is impossible to deny that whatever used to be true, Supreme Court justices have become political actors placed on the court to serve specific political agendas) may dictate the preferred “rule of law” that the Supreme Court justices want to see in place including the blatant tossing out with little or no justification of long-established rules that contradict a justices preferred rule, but justices still like to apply those rules consistently from case to case.  Thus, underlying the decision in this case is what type of analysis should the Supreme Corut apply to the next case in which a red state requires manufacturers to not adopt “liberal policies” to their production processes. Continue Reading...

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Unions and the Screen Writers’ Strike

By tmess2 | Published May 7, 2023

With rare exceptions, labor disputes tend to get very little media attention.  A strike at your local supermarket only impacts the workers and the customers at the supermarket, and the customers are able to shift to another supermarket.  And the ones that would have major disruptions on major products tends to get resolved quickly.  A major car manufacture and the UAW know that a long-term strike benefits neither side; so both sides work hard to resolve things without a strike.

But a strike in the entertainment industry is different.  The strike gets front and center attention quickly — a strike in sports means that games are not played; a strike in movies/tv means that nothing new gets produced and only shows/movies that are already completed can be released.  But there is no readily available replacement.  Strikes tend to be industry-wide.  So it’s not just the Tennessee Titans that are unable to field a team, but every other team in the NFL too.  Likewise, it’s not just Saturday Night Live which is unable to broadcast a new show, but every other live scripted show.  And since people are used to seeing these shows/sporting events on a regular basis, the loss of the content is instantly noticed.  But, while the networks and leagues would like to not have the shutdown, they know that their customers will come back when things restart.  So “management” can cope with  the temporary disruption of a strike to some extent.  And the workers also know that the industry will be back in full force when the strike ends.  While there may be some lost paychecks, if they have banked some money in advance of the strike, the workers know that their jobs will probably be there in two to three months.   (Of course, the disruption might kill a particular show or movie, but there will be another show or movie around to hire the workers, and the loss of a season in the prime of their careers will have some negative impact on the career earnings of athletes.)

For all that screenwriters live an entirely different universe than most other workers. the current strike shares themes with the strikes in less glamourous income with two common issues being at the center of the dispute. Continue Reading...

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Judge Shopping in Federal Court

By tmess2 | Published April 22, 2023

In recent years, we have seen some notorious examples of what is commonly called “judge shopping.”  In simple terms, judge shopping is when a party files a case in a particular way in a particular location to get a specific judge.  To understand how judge shopping happens, it is important to understand how the federal judiciary is organized.

At the highest level is the United States Supreme Court.  There is very limited ability to “justice shop.”  Merits cases are heard by the entire court.  In theory, by picking the trial court in which your case starts, you choose the “circuit justice” who will handle any emergency petition.  But if an emergency petition has any merit, the normal practice is to refer the petition to the entire court.  Even if a justice were to enter an order on an emergency petition, the other side could ask the rest of the court to reconsider that order.

At the next level is the Court of Appeals.  There are thirteen circuits, twelve of which cover certain geographical areas and one of which (the federal circuit) covers highly specialized cases like patent cases.   When a case is initially heard by the Court of Appeals, it is randomly assigned to a panel of three judges.  Such panels are composed of the “active” judges assigned to that circuit, “senior judges” (i.e. semi-retired judges who do not count against the number of active judges set by law for that court) who are willing to take cases in that circuit, and, usually, one or two district court judges from that circuit per argument session.  Simply put, parties have no control over which judges are assigned to the initial panel.  That does not mean that the plaintiff can’t get some advantage from filing in a district in a specific circuit.  The judges in the Ninth Circuit (mostly, the Pacific Coast states) are mostly liberal and the judges in the Fifth Circuit (Louisiana, Mississippi, and Texas) are mostly ultra-conservative.  So you have a better chance of drawing a liberal-majority panel in the Ninth Circuit and a better chance at drawing an ultra-conservative panel in the Fifth Circuit.  Additionally, after the initial panel decides a case, the losing party can ask for the case to be reheard by all of the “active” judges in the circuit (except in the Ninth which is so large that rehearing is done by an expanded panel rather than the entire court).  While rehearing by the entire court is rarely granted, having a favorable circuit makes it more likely that you will get rehearing and a favorable ruling on rehearing if you get a bad draw on the panel. Continue Reading...

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