June 2015 – Prof. Zachary Wolfe, Esq.

Marriage equality and peoples’ struggles win at the Supreme Court

June 26, 2015commentary

Thanks to Liberation News for posting my quick write-up of today’s victory and celebration. It was a wonderful moment of history to experience.

Speculation and Updates: Final decision days

June 25, 2015case suggestions, commentary

Factual update and speculation… To speculate first, Scalia offered an unhappy announcement of his dissent in the Affordable Care Act decision, which I think may provide a spoiler on the outcome of the Congressional redistricting case. The ACA issue was statutory interpretation, and the majority read insurance exchanges “established by the state” to include ones established by the federal government in stead of the state. To bash this, Scalia referenced the Constitution’s elections clause, and suggested that everyone would agree that Congress using its election-regulating power would not represent “the state legislature” acting (this is from memory, but that’s the gist). So — if this means that the majority of the Court has agreed that a plain and un-nuanced reading of the elections clause is what commands, then I think the Independent Redistricting Commission is about to lose… (See the bullets below if you need a refresher on what that case is about.) It’s possible that he was forecasting another dissent in that case, but that’s not how I heard it.

Further speculation is that I expect we’ll know about that case tomorrow, with marriage on Monday. I say this simply because it seemed like redistricting is almost ready, and because both Kennedy and Roberts had major opinions today so are a little less likely to have opinions tomorrow (and they seem the most likely authors of a marriage decision). But that’s a bit of a stretch on my part, and I plan to be in the courtroom tomorrow in any event.

If you plan to attend, know that the public area was full today but the bar section was not. There was also a fairly sizable set of demonstrators out front. The Obamacare supporters were chanting (they cleverly had stickers to modify their large signs, depending on the outcome), and I saw people who looked like they had been ready for a decision in the marriage cases. So even standing outside the courtroom can be a worthwhile experience on big decision days.

Now for objective information: after today’s decisions, there are now 5 cases that were heard this term but are still undecided, with two announcement days left on the Court’s calendar–tomorrow and Monday. So an updated recap of what remains (ordered by date of oral argument):

Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2). Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25). Important issues about what the EPA must consider when it regulates power plants. Fuller analysis is here.
Criminal law, Johnson v. US (argued April 20): (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
Same-sex marriage, Obergefell v. Hodges (argued April 28). One of the most high-profile cases of the term.
Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

Final Decision Days – full recap

June 23, 2015case suggestions

The Court has issued decisions in a number of cases since my last post, but several of the most highly anticipated cases still remain. In addition to the typical Monday decision day, the last of which is next week (the 29th), the Court has added two decision day on Thursday and Friday this week. There are now 7 cases that were heard this term but still undecided. It’s possible that the Court will wrap up this week and not use Monday, but probably more likely that it will spread decisions over the 3 days that are currently on its calendar.

So an updated recap of what remains (ordered by date of oral argument):

Disparate impact under the Fair Housing Act, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (argued Jan 29). The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.” Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.” But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic? Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
This case involves the allocation of tax credits and the impact on housing voucher programs. Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers. The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers. Hence this suit, alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods.
Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2). Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
Affordable Care Act (“Obamacare”), King v. Burwell (argued March 4). Its constitutionality is established, but there’s a question about whether the specific language in the law allows for tax subsidies for people who get their insurance through the federal exchange instead of through their state. Useful details in this article.
Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25). Important issues about what the EPA must consider when it regulates power plants. Fuller analysis is here.
Criminal law, Johnson v. US (argued April 20): (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
Same-sex marriage, Obergefell v. Hodges (argued April 28). One of the most high-profile cases of the term.
Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

I’ve attended the last two decision days, walking into the Court at about 8:30. Last Thursday, there was barely any public line at that time, but yesterday, the line was getting close to capacity. With only three days left and so many significant cases, I would expect attendance to become more popular, so would suggest getting there as early as possible. (The lawyer section has not been full, if you happen to be a member of the Supreme Court Bar. But that may well change soon.)

Undecided cases

June 15, 2015case suggestions

Are you considering attending the announcement of decisions? It is a fun thing to witness–the Justice who authored the majority opinion announces the decision and speaks for a few minutes about the reasoning. Often, a dissenter will speak as well, and sometimes you’ll hear from an author of a concurring opinion.

Now that the Court is no longer hearing oral arguments, all announcements happen on designated “non-argument days”–typically Mondays, but the Court has just added an additional non-argument day for this Thursday, June 18. In recent years, only the most high-profile cases remained for the last one or two such days, so you could be sure to hear something interesting. After this morning’s announcements, however, only three non-argument days remain (unless they add a second day next week, too) before the summer recess is scheduled to begin, yet there are still some 17 cases unresolved. Also, Mary Bonauto was in the courtroom today; I have no clue if she thinks a decision is imminent in her marriage equality case, if she’s just going to attend all remaining announcement days, or if there was some other reason…

It’s impossible to know on which day the decision in any specific case will be announced. But notably, only two cases argued in January remain undecided, and both are significant: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project involves disparate impact claims under the Fair Housing Act and Reed v. Town of Gilbert involves a 1st Amendment challenge to an ordinance that treats some signs differently from others, depending on content and purpose. Note, though, that the fact that these are the oldest undecided cases doesn’t necessarily mean they’ll be decided soon (after all, later-argued cases were announced this morning).

Of course, everyone is eagerly awaiting the decision in Obergefell, which should resolve the Constitutional status of same-sex marriage. That was argued on the second to last day of the argument calendar (April 28), and a significant death penalty case, Glossip v. Gross, was argued last. Again, the timing of the arguments doesn’t necessarily mean these decisions will be announced last. There is also the Affordable Care Act case, King v. Burwell, which was argued back on March 4.

Other unresolved cases that are not receiving as much attention but are quite significant include:

Arizona State Legislature v. Arizona Independent Redistricting Commission — asking whether states may appoint non-elected bodies to draw congressional districts, despite the phrase “by the legislature” in the Constitution’s elections clause (Art. I, § 4).
Ohio v. Clark — involving confrontation of witnesses in child abuse cases;
Walker v. Texas Division, Sons of Confederate Veterans — involving the confederate flag on state license plates;
National Mining Association v. EPA and Utility Regulatory Group v. EPA — both challenging EPA regulations of electric utilities; and
Brumfield v. Cain — involving mentally disabled defendants.

So by my estimation, 11 of the 17 remaining cases should be especially interesting ones to hear announced in person. That’s pretty decent odds, if you’re thinking about attending. Announcement days are also much easier to witness in person—no lining up overnight, as people did for the arguments. I’d recommend getting there by 8:00 for the public line. If you can’t make it to the Court, scotusblog has been “live blogging” the announcements. (No computers are allowed in the courtroom, but scotusblog sets up in the cafeteria just downstairs and gets the written decision as soon as the Justice begins speaking and, I think, reports from runners from the press section. Logging in is of course not as fun as being there, but is the fastest way to get the info and it can have the feel of an event.)