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US Supreme Court Tag

Posted by Amy Miller on December 09, 2014 11 Comments
You can take my vanity plates when you pry them from my cold dead fingers! Not exactly the most serious declaration we're ever published here, but it's relevant to the Supreme Court's latest free speech case, and could end up playing a role in a new standard governing content allowed on custom license plates. The Circuits are currently split on the issue of whether or not state governments can pick and choose between political messages requested for vanity plates; there's no consensus as to whether or not the message on the plate constitutes the speech of the driver, and is entitled to a higher level of protection. The Supreme Court has agreed to review Walker v. Texas Division, Sons of Confederate Veterans, Inc., and free speech advocates are hoping that the facts of this case can be applied to similar situations all across the country:
A panel of the U.S. Court of Appeals for the 5th Circuit said Texas officials were wrong to turn down a request from the Sons of Confederate Veterans. The requested plate would have featured the group’s logo: a Confederate battle flag framed on all four sides by the words “Sons of Confederate Veterans 1896.” After several votes, the board of the Texas Department of Motor Vehicles turned down the request because it found “a significant portion of the public associate the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” A district court upheld the decision, but the appeals panel reversed it.

Posted by Amy Miller on December 03, 2014 23 Comments
Title VII of the Civil Rights Act of 1964 prohibits sex discrimination against pregnant women, but how far does Title VII require an employer to go to accommodate pregnant workers who develop conditions limiting their ability to do their jobs? We already know an employer can't use a pregnancy to fire an employee, cut her pay, or deny her health benefits, but should they be forced to go so far as to offer up alternative work during the duration of the pregnancy? This morning, the Supreme Court will tackled Young v. United Parcel Service, which asks whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” Bloomberg has the facts of the case:
Young worked out of a UPS facility in Landover, Maryland. Her job required her to load packages onto vehicles and deliver them to their destination. Although she says the vast majority of those packages were envelope-size, her job description required her to lift parcels of up to 70 pounds. In 2006, Young became pregnant after in vitro fertilization, and her doctor and midwife said she shouldn’t lift objects weighing more than 20 pounds during the first half of the pregnancy or more than 10 pounds for the rest. She says UPS refused to accommodate her needs either by adjusting her job responsibilities or by temporarily assigning her to a position that didn’t require heavy lifting. There were “many, many jobs” she could have performed at the Landover facility, including those that required only handling phone calls or addressing packages, she said in an e-mailed response to a reporter’s question. She also said she would have worked in a nearby facility if the company preferred. “I was flexible,” Young said. “I just needed my job.” She went on an unpaid leave of absence and returned to work after her baby was born. She later left UPS.
End game aside, it's a fair question: if you have another, similar group you're accommodating with lighter work during a temporary disability, why not include into the mix pregnant women who develop similar disabilities?

Posted by Amy Miller on December 02, 2014 5 Comments
Both parties in the high-profile Elonis vs. United States had their day before the Supreme Court yesterday, and lawyers and analysts alike aren't sure what to make of the Court's reaction to oral arguments. Elonis (described in detail here) is shaping up to be a real barn burner because it tackles a question almost all of us have asked ourselves at some point: can you SAY that on Facebook? "That" being, of course, profanity- and violence-saturated rants directed at a particular person or group of people. We don't have a cohesive standard for what constitutes a "true threat" against another person, and the murky waters of social media have added an extra layer into an already complicated case. Platforms like Facebook and Twitter provide a kind of semi-anonymous catharsis for users; you can post a picture, or a song lyric, or random thought, and (barring any run-ins with the platform's TOS) no one can find cause to complain because it's your space on the internet to use as you wish. Enter Elonis' pointed, violent rants. Is it enough to claim catharsis and artistic expression when your content is clearly aimed at another person, and that person feels threatened? Elonis' attorneys are banking on the Nine to accept this argument:
John Elwood, a lawyer for Mr. Elonis, said prosecutors should have to show that someone accused of making threats intended to put the listener in fear. Merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty, he said. “Many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” Mr. Elwood said. He cited a Texas prosecution of a teenager who made remarks in a videogame chat room about attacking a school. And he suggested the government’s preferred legal approach would allow the prosecution of someone from Ferguson who tweeted a violent message along with a picture of police officers during the riots.
Justices Alito and Ginsburg balked at this argument, with Alito citing concerns that condoning Elonis' conduct could lead to a situation where estranged spouses could post threatening content against their partner and get away with it, and Ginsburg asking how a prosecutor could somehow tease out what was in the perpetrator's mind when he posted the threatening content.

Posted by Amy Miller on November 24, 2014 38 Comments
In the 2003 barnburner Virginia v. Black, the Supreme Court held unconstitutional a statute that in part stated that the act of burning a cross constituted prima facie evidence of an intent to intimidate a person or group. Writing for the majority, Justice O'Connor said that "just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm." Next week, the Supreme Court will be asked to apply this standard to speech in a new and controversial venue: a man's Facebook timeline. Anthony D. Elonis was sentenced to four years in federal prison after a court determined that violent rants posted to his personal Facebook page constituted a "true threat" to his estranged wife, former coworkers, and even a federal agent. The Washington Post has the background:
About a week after Tara Elonis convinced a judge to issue a protective order against her estranged husband, Anthony, her soon-to-be ex had this to say:
“Fold up your PFA [protection-from-abuse order] and put it in your pocket Is it thick enough to stop a bullet?”
... He was fired after co-workers interpreted one of his Facebook postings as a threat to them. He responded: ““Someone once told me that I was a firecracker. Nah, I’m a nuclear bomb and Dorney Park just f----- with the timer.” ... In other postings, Elonis suggested that his son dress as “Matricide” for Halloween, with his wife’s “head on a stick” as a prop. He pondered making a name for himself by shooting up an elementary school and noted that there were so many nearby to choose from — “hell hath no fury like a crazy man in a kindergarten class.”

Posted by William A. Jacobson on November 12, 2014 16 Comments
I appeared this afternoon during the National Review post-election cruise on a panel with: The panel topic was The State of American Justice. Unfortunately, there is no audio or video I can link to. But take my word for it, it was a good discussion. We started out with a discussion of whether the newly Republican Senate should reinstate the filibuster rule for non-Supreme Court nominees. You will recall that the Senate Democrats eliminated the filibuster in November 2013 (went "nuclear") at the urging of Obama allowing Obama to pack the courts with virtually any nominee he wants.  The discussion centered around a prior presentation by former Senator Jon Kyl who (according to reports, I didn't hear it) advocated a return to the longstanding filibuster tradition which serves the Senate and the people well. The clear consensus on the panel, articulated at length by Whelan, was NO UNILATERAL DISARMAMENT. Harry Reid and the Democrats need to be taught a lesson -- and that lesson should not be that they get to change the rules when it suits them, only to regain the benefit when Republicans take over.  This will be a fight early next year, and we need to bring some backbone to Senate Republicans.  The rule change doesn't so much matter now, but in the event a Republican wins the presidency in 2016, why should Republicans not get the free pass Obama gets?

Posted by William A. Jacobson on November 07, 2014 26 Comments
The issue of subsidies on the federal exchange has been accepted by the Supreme Court. Scotusblog reports:
The Supreme Court, moving back into the abiding controversy over the new health care law, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance. At issue is whether the program of tax credits applies only in the consumer marketplaces set up by 16 states, and not at federally-run sites in 34 states. Rather than waiting until Monday to announce its action, which would be the usual mode at this time in the Court year, the Justices released the order granting review of King v. Burwell not long after finishing their closed-door private Conference. By adding the case to its decision docket at this point, without waiting for further action in lower federal courts, as the Obama administration had asked, the Court assured that it would rule on the case during the current Term. If it confines the subsidies to the state-run “exchanges,” it is widely understood that this would crash the Affordable Care Act’s carefully balanced economic arrangements.
We previously wrote about the King case, Whipsaw: 4th Circuit upholds Obamacare federal exchange subsidy after D.C. Circuit rejects:

Posted by Amy Miller on November 06, 2014 11 Comments
The Sarbanes-Oxley Act of 2002 was passed in an effort to reform the finance and governance structures in corporate America. Although the language of the Act is notoriously broad, it has mostly been applied to those in the corporate world who make missteps during investigations into their financial practices. Then, of course, there are times when white collar crime statutes are used to prosecute fishermen who throw back undersized fish. In 2007, a search of the Miss Katie fishing vessel revealed that the crew had caught and retained 72 undersized red grouper. The vessel's owner, John Yates, was cited, and told to take the 72 grouper to port for seizure. Instead, Yates put the fish back in the water and replaced them with bigger fish. A port inspection revealed only 69 undersized fish, leading to officials' discovery of what Yates had done. Prosecutors indicted and convicted Yates under a provision of Sarbanes-Oxley that provides a maximum punishment of up to 20 years for the destruction of “any record, document or tangible object” in order to obstruct an investigation. The case wound its way through the system before landing on the dias at the Supreme Court---and it looks like the entire panel is skeptical not of the prosecutor's classification of fish as "evidence," but of the prosecutor's decision to prosecute under Sarbanes-Oxley.

Posted by William A. Jacobson on November 04, 2014 5 Comments
Yesterday was oral argument at the Supreme Court in a lawsuit over whether Congress had the power to designate Jerusalem as the Capital of Israel on passports. The case is Zivotofsky v. Kerry, and the issue is a fight between Congress and the Executive Branch, Via Scotus Blog:
Issue: Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."
Prof. Eugene Kontorovich points out that legally the issue is not the same as the political issue of recognition of Israeli sovereignty over all of Jerusalem. Most observers of the oral argument believe it it will be a 5-4 split, most likely in favor of the Executive Branch. But oral arguments are not necessarily accurate predictors of ultimate outcome, so who knows. Regardless of the legal technicalities, the media and public perception is that this is a political issue regarding Jerusalem, particularly in light of hostile and threatening statements made by the Obama administration over Israeli exercise of sovereignty over "East Jerusalem" (the part of Jerusalem illegally occupied by Jordan from 1949-1967). Via Mirabelle from Israelly Cool:
Some of Obama’s biggest recent grievances in that relationship [between Obama and Netanyahu] seem to have been over Jews living in various neighborhoods in Jerusalem. In the past few weeks, Obama or his spokespeople have expressed their displeasure with Jews moving into homes they legally purchased in Silwan, planned construction of mixed Jewish and Arab housing in Givat Hamatos, or Monday’s announcement of homes in Har Homa and Ramat Shlomo. Rather than go on a lengthy rant about my complete and utter disappointment at my own President, I though we’d just take a trip in the Wayback Machine, to 2008 . . .
In 2008, Obama pledged that Israel could keep its undivided Capital of Jerusalem, if it likes it. That was then. This is now:

Posted by William A. Jacobson on October 24, 2014 14 Comments
Yesterday, the 7th Circuit Court of Appeals denied a request by two targets of the Wisconsin John Doe investigation to rehear a decision by a three-judge panel to vacate an injunction issued by the District Court preventing the state investigation from continuing. (Order at bottom of post.) The substantive issue underlying the case is whether the Wisconsin campaign regulations violated the First Amendment, specifically laws that purportedly bar "issue advocacy" coordination between campaigns and outside groups. In the John Doe investigation, the Milwaukee County prosecutor -- who allegedly has a family political bias -- targeted dozens of conservative Wisconsin activists for sweeping subpoenas. Two of the targets -- Eric O'Keefe and the Wisconsin Club for Growth -- filed suit in federal court to halt the investigation, and for money damages. The District Court granted the injunction and allowed the case to move forward. The 7th Circuit, however, reversed the District Court. That original 7th Circuit decision was based, primarily, on the issue of whether a federal court in this circumstance should interfere in a state court investigation. The 7th Circuit panel ruled that the federal court should abstain. I reached out to one of the lawyers for the John Doe targets, Andrew Grossman, as to whether Supreme Court review via a Petition for Certiorari would be sought, and he responded as follows:
"We will be seeking Supreme Court review and have every expectation that the Seventh Circuit's decision will be reversed."

Posted by Kemberlee Kaye on October 22, 2014 7 Comments
HBO's Last Week Tonight is easily the best satirical news program on TV these days. Hosted by Daily Show alum John Oliver, Last Week Tonight is all over the spectrum ideologically, but regularly has me in stitches. Recently, Last Week Tonight noticed video cameras are not allowed to film SCOTUS oral arguments. Oliver and crew set out to ensure the American public is never without a visual of the Supreme Court arguments again. Enter "Real Animals Fake Paws." Take a look: Oliver released the raw footage on YouTube for enterprising individuals to utilize. Slowly but surely, oral arguments set to "Real Animals Fake Paws" are popping up.

Posted by William A. Jacobson on October 18, 2014 48 Comments
AP reports via HuffPo:
The Supreme Court said Saturday that Texas can use its controversial new voter identification law for the November election. A majority of the justices rejected an emergency request from the Justice Department and civil rights groups to prohibit the state from requiring voters to produce certain forms of photo identification in order to cast ballots. Three justices dissented. The law was struck down by a federal judge last week, but a federal appeals court had put that ruling on hold. The judge found that roughly 600,000 voters, many of them black or Latino, could be turned away at the polls because they lack acceptable identification. Early voting in Texas begins Monday. The Supreme Court's order was unsigned, as it typically is in these situations. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented, saying they would have left the district court decision in place. "The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters," Ginsburg wrote in dissent. Texas' law sets out seven forms of approved ID — a list that includes concealed handgun licenses but not college student IDs, which are accepted in other states with similar measures.
The Supreme Court Order is here. It denies a request to vacate the stay issued by the 5th Circuit Court of Appeals putting on hold the trial court ruling invalidating the law.

Posted by Amy Miller on October 15, 2014 18 Comments
The Supreme Court has issued an unsigned order blocking key provisions of sweeping new health care regulations from being enforced against Texas abortion providers. Via Fox News:
In an unsigned order, the justices sided with abortion rights advocates and health care providers in suspending an Oct. 2 ruling by a panel of the New Orleans-based U.S. 5th Circuit Court of Appeals that Texas could immediately apply a rule making abortion clinics statewide spend millions of dollars on hospital-level upgrades. The court also put on hold a separate provision of the law only as it applies to clinics in McAllen and El Paso that requires doctors at the facilities to have admitting privileges at nearby hospitals. The admitting privileges remains in effect elsewhere in Texas. Justices Samuel Alito, Antonin Scalia and Clarence Thomas said they would have ruled against the clinics in all respects.
This decision temporarily set aside provisions that require abortion clinics to follow the same health and safety standards as ambulatory surgical centers; this means thirteen abortion clinics that closed after the law took effect will be allowed to reopen. It also exempted practitioners operating clinics in El Paso and McAllen (larger cities in the Rio Grande Valley) from having to gain admitting privileges at nearby hospitals. Pro-choice organizations are, of course, gloating; but keep in mind that this was an emergency ruling. Advocates for abortion providers asked for the Supreme Court's ruling because the Fifth Circuit allowed the restrictive new laws to be enforced during the appeals process.

Posted by Amy Miller on October 10, 2014 166 Comments
A federal District Court judge has ruled that Texas' embattled voter ID law is unconstitutional. This news came just hours after the Supreme Court granted a request from civil rights activists to block similar requirements in Wisconsin. In a 147 page opinion, U.S. District Court Judge for the Southern District of Texas Nelva Gonzales Ramos held "that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose." Judge Ramos also held that SB 14 constitutes an unconstitutional poll tax. Although the Supreme Court last year freed Texas from onerous federal pre-clearance requirements, much of Ramos's opinion focuses on Texas' (admittedly) dark history of discrimination and racial tension. Additionally, the opinion appears to accept arguments made by Justice Department attorneys that voter fraud is "extraordinarily rare" and that SB 14 amounts to nothing more than “a solution in search of a problem.”
This history describes not only a penchant for discrimination in Texas with respect to voting, but it exhibits a recalcitrance that has persisted over generations despite the repeated intervention of the federal government and its courts on behalf of minority citizens. In each instance, the Texas Legislature relied on the justification that its discriminatory measures were necessary to combat voter fraud. In some instances, there were admissions that the legislature did not want minorities voting. In other instances, the laws that the courts deemed discriminatory appeared neutral on their face. There has been a clear and disturbing pattern of discrimination in the name of combatting voter fraud in Texas. In this case, the Texas Legislature’s primary justification for passing SB 14 was to combat voter fraud. The only voter fraud addressed by SB 14 is voter impersonation fraud, which the evidence demonstrates is very rare (discussed below). This history of discrimination has permeated all aspects of life in Texas...

Posted by William A. Jacobson on October 06, 2014 73 Comments
Many if not most observers expected the Supreme Court to take at least one of the cases for which review was sought in which the issue of whether same-sex marriage bans were constitutional was squarely presented. None of the Supreme Court's decisions in DOMA or the Prop. 8 litigation decided that issue. But the Supreme Court did not take any of the cases, leaving in place Court of Appeals decisions that seem to clear the way for same-sex marriages in numerous states. ScotusBlog reports:
The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term.  Many people had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time.  Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the controversy at this point, because there was no disagreement among the lower courts on that issue.  Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions:  Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic(Virginia); and Smith v. Bishop (Oklahoma).
The NY Times explains the impact:

Posted by Amy Miller on October 05, 2014 12 Comments
A new poll from Harris Interactive suggests that 70% of Americans are uncomfortable with using a system of lifetime appointments to fill vacancies on our nation's highest Court. This shouldn't come as a shock, and neither should that fact that millennials are far less likely to object to the idea of lifetime appointments (only 63% object) as compared to baby boomers (73%), "matures" (76%), and---perhaps most interestingly---Gen Xers (71%.) A generational gap isn't surprising because, for all intents and purposes, the Court is generally painted as some sort of next-level legislative body, expected to respond to the ever-fluid world views of pundits, protesters, and various voting demographics. (Don't believe me? Review the news coverage from the Court's rejection of DOMA.) As a card-carrying member of the bizarro generation tucked neatly between "GenX" and "Millennial," I can testify to the fact that as we grow, so grows our exposure to various ideas about how government should respond to a diversifying society, and vice versa. The problem with this viewpoint isn't that it's likely to change the system overnight---this would require a Constitutional amendment---but that it comes from a bloc of people who harbor a fundamental misunderstanding of the point and purpose of a Supreme Court.
The Harris Poll asked Americans to deliberate on the nation's highest court, and found that despite two-thirds of Americans (68%) feeling it's a crucial governing body for the success of the United States, nearly half of Americans (47%, up from 42% in 2010) say they are not knowledgeable about the Supreme Court confirmation process. Just over half of Americans (53%, down from 58% in 2010) indicate being that they're knowledgeable about the process, with one in ten (11%) saying specifically that they are very knowledgeable about it and just over four in ten (42%) saying they're somewhat knowledgeable.
Less than half of those who have an opinion about how the court should be run know how we currently choose justices. Excellent. Then there's this gem:

Posted by Amy Miller on September 27, 2014 11 Comments
The Supreme Court will sit for their first long conference of the October session on Monday, and SCOTUS watchers are anxious to find out whether or not the Court will decide to wade once more into the murky waters of the marriage equality battle. There are seven gay marriage cases set to be discussed during the Monday conference, and each of them offers a slightly different variation on the argument that has been raging since before this writer even began to think about the possibility of attending law school. Via U.S. News and World Report:
The Supreme Court will not only be considering the matter of timing. What case or cases it ultimately hears will help determine the scope of its eventual ruling, both as it pertains to marriage itself – will its ruling apply to the ability of gay couples to get married in all states or just whether states have to recognize the same-sex marriages of other states – and the decision’s implications outside the issues of marriage. “The court is going to have to decide how much it is going to put on its plate,” said Gregory Garre, a former U.S. solicitor general and now the chairman of the Supreme Court and Appellate practice at Latham & Watkins, at a panel sponsored by the American Constitution Society for Law and Policy. Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination. Those on both sides of the argument say they can win on either grounds.

Posted by William A. Jacobson on September 05, 2014 14 Comments
I don't know how I missed this yesterday. Actually, I do know. I was off the internets for most of the day, and the world kept turning without me. The D.C. Circuit Court of Appeals granted (Order embedded at bottom of post) en banc (full court) hearing in the Halbig case, in which an appeals court panel found that the IRS had no authority to grant people who signed up for Obamacare on the federal exchange tax subsidies which, under the statute, were only for those who signed up on state exchanges. The same day as the original Halbig decision was released, the 4th Circuit Court of Appeals reached a different conclusion. The split in Circuits convinced just about everyone that the case was on the fast track to the Supreme Court. But many speculated at the time that the D.C. Circuit, packed with Obama appointees, would take the case en banc, uphold the IRS regs, and avoid a Circuit split. I didn't think that would happen, but I was wrong. Via Prof. Jonathan Adler at Volokh Conspiracy:

Posted by Amy Miller on August 22, 2014 6 Comments
Last month, the Fourth Circuit Court of Appeals struck down as unconstitutional Virginia's same sex marriage ban. This week, however, the Supreme Court put a hold on that ruling, meaning that for the time being gay marriages are blocked in Virginia:
While nearly all federal and state courts have ruled in favor of same-sex marriage since the high court issued two landmark decisions in June 2013, judges have blocked nearly all such marriages while the cases are appealed. The justices had stepped in once before, in Utah, to do just that. If the court declines to hear the Virginia appeal, the stay would be lifted and couples could begin getting married. Otherwise, those marriages would have to wait until the case is ultimately decided. "The Supreme Court is making clear, as it already did in the Utah marriage case, that it believes a dignified process is better than disorder," said Byron Babione, senior counsel at Alliance Defending Freedom, which represents the Virginia court clerk opposed to same-sex marriage.
Virginia Attorney General Mike Herring, who has decided not to support the new ban, actually asked the Supreme Court to issue a stay on the Fourth Circuit's ruling, citing concerns over the impact an eventual negative ruling could have on families and businesses.
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