racial gerrymandering – Prof. Zachary Wolfe, Esq.

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.)

November Cases of Note

October 26, 2014case suggestions

November brings cases involving state secrets and whistleblowers, voting rights protections against racial gerrymandering, presidential powers in the context of Israel/Palestine, securities fraud, and rights of mortgage borrowers.

Monday, November 3

November arguments begin with a case that will be viewed as an Israel-Palestine issue, although the legal question is one of separation of powers. Long-standing State Department policy is that when a US Citizen is born in a disputed territory, the consular report of birth abroad and the passport should list the city or area only (without choosing a country). The plaintiffs’ child was born in Jerusalem in 2002, and the consulate, citing this policy, refused their request to add “, Israel” after the city name. This case (Zivotofsky v. Kerry) challenges the constitutionality and enforceability of a Congressional enactment directing State to comply with such a parental request. Traditionally, most everything that implicated international diplomacy, including recognition of states in disputed territories, has been within the scope of Presidential powers. It is an open question whether Congress can direct an executive branch agency like State to go against the President’s determination of foreign policy. In signing the bill into law in 2002, President Bush stated that this provision would not be interpreted as mandatory because otherwise it would “interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” The Obama Administration has taken the same position.

The second case this morning involves allegations of securities fraud. Purchasers of stock may sue if the SEC registration “contained an untrue statement of material fact or omitted to state a material fact [causing the statement to be] misleading.” (Securities Act § 11, 15 U.S.C. § 77k.) The investors, a union pension fund, allege that the company was engaged in illegal activities, including a kickback scheme and defrauding Medicare, which it failed to disclose in SEC filings. The company would later settle with DoJ for $124 million. At issue in this case, Omnicare, Inc. v. Laborers Dist. Council Construction Indus. Pension Fund, is the level of intent that must be alleged to make out a claim under this provision of the Securities Act: Must the investor show intentional misrepresentation and that the filer held a subjective intent to mislead, or only that, objectively, material facts were omitted that made the filing misleading. The Sixth Circuit held that an objectively wrong statement is actionable, while the Second, Third, and Ninth Circuits have required a subjective element, that the filer’s true understanding was different from what was represented on the filing.

Tuesday, November 4

Department of Homeland Security v. MacLean, filed by a former TSA worker, raises the issue of state secrets and whistleblower protection. His publication of the TSA plan to cut back on air marshals led to public outcry, Congressional investigation, and eventual abandonment of the plan, but he was fired nonetheless. By statute, whistleblower protection does not apply if the information made public was “specifically protected by law from exposure,” but the plaintiff argues that this provision is intended to cover highly classified information under Congressionally enacted law, not a staffing plan that is made private only by TSA-issued regulation. The unusual twist is that this is a law enforcement official, disclosing information in order to obtain greater levels of security, but of course the ruling will have implications for whistleblowers seeking to curtain the scope of “national security” measures.

The second case involves procedural issues regarding the right to rescind a home loan. Under the Truth in Lending Act, a borrower has the right to rescind the mortgage up to three days after closing or after all receiving all legally required loan documents, but this right expires three years after closing (regardless of whether or not all documents have been provided). In Jesinoski v. Countrywide Home Loans, the borrowers claim they were never provided all the required paperwork and they sent a letter to the bank attempting to rescind their mortgage within the three year timeframe, but they did not file a lawsuit until after that timeframe. The Court must decide if the three year limit is akin to a statute of limitations (requiring filing of a lawsuit) or rather is governed by the related, three-day statutory procedures for rescinding the loan (which is to send a letter to the bank).

Wednesday, November 5

Just a quick note on today’s criminal law cases. Yates v. U.S. involves a commercial fisherman who is alleged to have caught undersized fish and then destroyed them before he could be prosecuted for that crime, so he is instead charged with impeding or obstructing an investigation. The statutory language is directed to anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation; the Court must decide if this covers only business records and the like or “tangible objects” like fish, which there is no independent requirement to retain. Johnson v. U.S. involves interpretation of the Armed Career Criminal Act, and asks whether possession of a short-barreled shotgun constitutes a “violent felony” for purposes of that sentencing scheme.

[Nov. 10th’s cases are important but focused on procedural issues. The Court is closed on Nov. 11 for Veterans Day.]

Wednesday, November 12

This racial gerrymandering case comes with the interesting twist that the state accused of race discrimination had been arguing that Section 5 of the Voting Rights Act prohibited them from drawing districts any differently–but last term the Court, to the dismay of voting rights advocates, rendered that provision inoperable. The two cases, Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama, are consolidated for argument in the first hour of the day but raise extremely important issues, especially after the decision in Shelby County last year and the denial of cert. in the Texas Voter ID case in October. The cases are receiving a great deal of attention, especially from voting rights advocates. Scotusblog has a useful write-up, and the Lawyers Committee for Civil Rights Under Law has urged the Court not to reach the substantive issues at this time due to serious shortcomings in the factual record.

The Court will also hear a tax law case, questioning whether a state may tax all of its residents’ income, even if earned in another state. Maryland State Comptroller v. Wynne