marriage equality

October 2017

August 10, 2017case suggestions

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering. I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available. (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018. The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22. So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses. The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges. In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act. Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.” Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term. In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts. The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role. A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC. The first involves probable cause and qualified immunity. Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful. In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house. Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet. Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission. They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity. The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws. Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol. He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited. A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car. He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims. He then appealed, but the appellate court held the guilty plea waived his right to appeal. The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?” This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii. I don’t have anything to add to the extensive commentary on these cases…. Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives. It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.” I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act. The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas. The Court has accept cert. on the question of whether corporations can be sued under the ATCA. Scotusblog has some good background.

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.)

April 29, 2015commentary

My thanks to Liberation News for posting my thoughts immediately after yesterday’s arguments in the marriage equality cases: Struggle for Equality at the Supreme Court.

Please see that link for my analysis of the content of the arguments. For the Court-watcher readers of this blog, I’ll add a few more random thoughts about the argument-day-as-event:

Accessibility has become a real problem. For the general public, attending this argument would have meant taking three days off work or hiring someone to stand in line for you. Interesting stories about that in Slate and the NY Times. I spent many mornings in the public line while in law school, and I don’t remember anything like this–5am the morning of was usually plenty early. The trouble seems to be that spots in line have become commodified, and it is now not only possible but really necessary to buy your way in.

Members of the Supreme Court Bar get a separate line and seating area, but it too fills up quickly. I had resigned myself to being in the “lawyers’ lounge,” a kind of overflow room (a very nice one) where at least we get audio. Even so, I got on line by 6am and was number 77 for 100 seats. One bar member was in line since noon the day before and yet was in the lounge with me—the courtroom seats were all taken by people who had been there or hired people to be in line for them for at least 24 hours. Another bar member I’d gotten to know two years ago when we stood next to each other from 4am waiting to get in to the DOMA arguments (and yet were in the lounge; I had made it into the Courtroom the day before for Prop 8, but just barely, and despite a desire to get there earlier, I was moving much more slowly on day two of no sleep…) began lining up on Saturday. She said she broke down and hired a line-stander but only for a few hours early Tuesday, so she could get a shower before the arguments.

Inside the courtroom, someone disrupted the arguments, yelling after Mary Bonauto finished her opening argument. Something about Hell; fairly incoherent, and I don’t think just because he was hard to hear. I had seen one disruption before, some years ago, and the Supreme Court Police carried them out with remarkable efficiency. But this time, the person could be heard yelling for several minutes. Scalia remarked, “rather refreshing, actually.” Jeffrey Toobin had more to say about this episode.

To end on a positive note, Verrilli was great! The Administration is still constraining him to argue only the equal protection theory, not the fundamental rights theory (which is my bet for what gets Kennedy’s vote), but I think that’s a good thing (not that they’re going to decide based on heightened scrutiny, but it’s at least taking a shot at pushing them there).

Final Arguments of the Term

April 9, 2015case suggestions

The last two weeks in April will close oral arguments for the term. Along with the highly anticipated marriage equality cases, the Court will hear important criminal law cases, including the first death penalty case since 2007.

Several days in the closing weeks have only one case scheduled.

Monday, April 20

The Armed Career Criminal Act provides for stricter punishment for certain offenses, and the Court in Johnson v US will decide whether possession of a short-barreled shotgun constitutes a “violent felony” within the meaning of that Act.

Tuesday, April 21

In McFadden v US, the Court wades into the confusing area of regulating “designer drugs” developed by “underground chemists” — new substances that are not listed illegal drugs but produce the same effects, which Congress intended to regulate with the Controlled Substance Analogue Enforcement Act. This case raises the issue of whether the government must prove that the defendant knew the drug he had was an analogue to a listed drug.

Wednesday, April 22

Another one-case day, this time involving the takings clause, which is relatively rarely addressed by the Court, although this specific dispute was before the Court last year on a preliminary standing issue. It involves a Department of Agriculture program to stabilize raisin prices, which requires producers to surrender some of their supplies each year and be compensated when and if the government sells those raisins. The Court must decide whether this raises a Fifth Amendment issue (“taking” raisins rather than real property), and if so, whether the just compensation requirement can be satisfied with this sort of system.

Monday, April 27

Kingsley v. Hendrickson is an excessive force claim against jail officials. The jury was instructed that for the prisoner to win, he would have to prove, among other things, that “Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety.” The Court has accepted cert on the limited question of whether it should instead be enough to show that the officials “deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

Tuesday, April 28 – marriage equality cases

In contrast to the one-case days, the Court has accepted cert. in four cases that raise questions related to marriage equality. The cases are all consolidated for argument together, with a total of 2 1/2 hours allotted (but I wouldn’t be surprised if it runs a little long).

Unlike the procedural, technical, and somewhat peripheral issues that kept us from true resolution of the overall issue last time, the Court this year has accepted cert. on questions that cut to the core:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of- state?

A total of ninety minutes is allotted for oral argument on question 1. A total of one hour is allotted for oral argument on question 2.

Much has been written about these cases (Scotusblog has a set of links to recent stories here) so I won’t duplicate efforts. Suffice to say it will be a fascinating and historic day–get to the Court if you can, whether to try to make it in (which likely will require at least one overnight stay for the public line) or just to take in the demonstrations and press conferences out front.

Wednesday, April 29

Although the marriage cases are getting the bulk of public attention, an extremely important death penalty case is up for argument today, Glossip v. Gross. The first question presented speaks for itself:

(1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious;

In addition to considering the constitutionality of this sort of lethal injection cocktail, the Court has also accepted cert. on two further questions, involving the technical requirements for blocking executions that may violate constitutional requirements:

(2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

No further arguments this term, but decisions will be announced on Mondays

The Court will continue to sit and announce decisions on Mondays through the end of June, or until it has announced decisions in all cases argued this term. It may announce sittings on other days, as decisions get finalized. These sessions, too, are open to the public. We don’t know which cases will be issue on which days, but in recent years, the Court has announced its most high-profile cases in the last few seatings (which seems likely to recur, given the arguments being heard in the final week). Even then, the lines were relatively short and it is very interesting to hear the Justices announce and summarize the decisions (and sometimes even more interesting when there’s a spirited dissent!).

Barring unusual circumstances requiring an expedited hearing, the Court will then go on recess and not hear any more arguments until the first Monday in October.