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maxwellyjordan · 4 years ago

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Court declines to hear cases on religious rights, surveillance rulings

After adding two new cases to their merits docket on Friday, the justices issued more orders from their Oct. 29 conference on Monday morning. As expected, they did not add any additional cases to their docket, but they did clear away several of the high-profile petitions that they have repeatedly considered since returning from their summer recess. The justices once again did not act, however, on the petition for rehearing filed by Washington state florist Barronnelle Stutzman, who declined to make custom flower arrangements for a same-sex wedding because of her religious beliefs.

Abortion coverage by employers

The justices sent Roman Catholic Diocese v. Emami, a challenge to a New York regulation that requires employers to fund abortions through their employee health plans, back to the lower courts for another look. The regulation carves out an exemption for religious employers that primarily serve and employ people of the same religion, but that exemption does not extend to other religious groups, such as Catholic Charities. The diocese, represented by former U.S. Solicitor General Noel Francisco, went to federal court, arguing that the regulation violates the Constitution. An intermediate state appellate court upheld the regulation, concluding that it is a “neutral and generally applicable” rule that can survive under the court’s 1990 decision in Employment Division v. Smith.

Telling the court that the regulation “imposes enormous burdens” because of the religious groups’ opposition to abortion, the diocese urged the court to weigh in on whether the regulation is neutral and generally applicable when it “burdens a subset of religious organizations by forcing them to cover abortions” and whether the regulation interferes with the autonomy of religious entities. And if the regulation passes muster under current law, the diocese added, the court should consider whether to overrule Smith. “It cannot be,” the diocese concluded, that the “Constitution allows New York to require religious groups to participate in a practice so fundamentally in conflict with their religious beliefs.”

New York countered that the justices should deny review because the requirement only applies to insurance companies who provide insurance in New York. Employers don’t have to provide health insurance at all, New York stressed, and in any event adding coverage for abortions doesn’t impose any additional costs for insurance coverage. Moreover, New York added, the diocese didn’t raise its religious autonomy claims in the lower courts.

The justices considered the case at four consecutive conferences before issuing an order on Monday that vacated the state court’s ruling and sent the case back to the lower court for reconsideration in light of last summer’s decision in Fulton v. City of Philadelphia, in which the court ruled that Philadelphia’s refusal to make referrals to a faith-based foster-care agency that refused to certify same-sex couples as potential foster parents violated the Constitution. Three justices – one vote short of the four needed to review the case on the merits – indicated that they would have granted the diocese’s petition: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

Hospital care for transgender patients

The justices denied review in Dignity Health v. Minton, in which they had been asked to weigh in on whether and when a Catholic hospital can be required to allow procedures that violate its religious beliefs. The question came to the court in a case filed by a transgender patient, Evan Minton, who wanted a hysterectomy and alleges that the hospital, Mercy San Juan Medical Center in Carmichael, California, refused to allow the doctor to perform it, in violation of state civil rights laws. In its defense, the hospital countered that requiring it to perform procedures that conflict with its religious beliefs would violate the Constitution’s free exercise clause.

A California appeals court rejected the hospital’s defense, pointing to the Supreme Court’s decision in Smith.

Mercy went to the Supreme Court in March 2020, telling the justices that the “case poses a profound threat to faith-based health care institutions’ ability to advance their healing ministries consistent with the teachings of their faith.” At that point, the court had already granted review in Fulton.

Minton urged the Supreme Court to stay out of the dispute, stressing that there was no final state court judgment on the federal questions in the case. But the court still held the case until it issued its decision in Fulton on June 17. The court then considered the Mercy’s petition several times before finally denying review on Monday, with Thomas, Alito, and Gorsuch indicating that they would have granted review.

Public access to surveillance rulings

In 1978, Congress created the Foreign Intelligence Surveillance Court, currently made up of 11 federal district court judges, to rule on the federal government’s applications for electronic surveillance orders in foreign intelligence investigations. Appeals from the FISC’s rulings go to the Foreign Intelligence Surveillance Court of Review, made up of three more federal judges. The justices on Monday declined to hear an important case involving public access to the FISC’s rulings, over a dissent by justices from both ends of the ideological spectrum.

The dispute in American Civil Liberties Union v. United States stemmed from a motion that the ACLU filed with the FISC five years ago, seeking “opinions and orders containing novel or significant interpretations of law issued” over a 15-year period regarding the federal government’s online surveillance activities after the Sept. 11 attacks. A FISC judge dismissed the motion, reasoning that the FISC lacked the power to review the motion, and the FISCR agreed that it too lacked jurisdiction to consider the request.

Represented by Ted Olson, a former solicitor general during the George W. Bush administration, the ACLU came to the Supreme Court in April, asking the justices to weigh in on both whether the FISC has the power to review its motion and whether the First Amendment provides a right for the public to have access to at least some of the FISC’s significant opinions. The ACLU explained that although the FISC’s role may have originally been relatively narrow, that role has “changed fundamentally — due to both Congress’s expansion of” the Foreign Intelligence Surveillance Act “and the exponential growth in the capabilities of powerful surveillance technologies.” As a result, the ACLU wrote, the FISC now “writes opinions that include significant interpretations of FISA, other federal statutes, and the Constitution,” which “sometimes authorize broad surveillance regimes, with far-reaching implications for U.S. citizens and residents who are not the ostensible targets of the government’s surveillance.”

The federal government urged the justices to deny review, stressing that (among other things) federal law only allows them to grant review of cases that hail from the “courts of appeals” – which the FISCR is not. And in any event, the government concluded, the ACLU has other ways to get the FISC opinions it is seeking – for example, through the executive branch itself, or by filing requests under the Freedom of Information Act.

Gorsuch dissented from the denial of review, in an opinion joined by Justice Sonia Sotomayor. Gorsuch noted that the government “does not merely argue that the lower court rulings should be left undisturbed because they are correct,” but also “presses the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken.” Stressing that the case “presents questions about the right of public access to Article III judicial proceedings of grave national importance,” but also about “the power of this Court to review the work of Article III judges in a subordinate court,” Gorsuch asked, “If these matters are not worthy of our time, what is?”

Capital punishment and intellectual disability

The court’s decision not to grant review in Coonce v. United States also drew a dissent from Sotomayor. Wesley Coonce, who sustained a severe brain injury when he was 20 and was later convicted of killing a federal inmate at the age of 29, had asked the justices to take up two issues: whether the Constitution allows the federal government to execute a defendant who was intellectually disabled when he committed his crime, because he became intellectually disabled after the age of 18, and whether and to what extent the Sixth Amendment right to confront adverse witnesses applies in capital sentencing hearings. The Department of Justice agreed with Coonce that the Supreme Court should send the case back to the lower courts for another look in light of the American Association of Intellectual and Developmental Disabilities’ recent change to its definition of intellectual disability, but the court on Monday denied review.

Sotomayor described the court’s refusal to send the case back to the lower courts as “deeply concerning, especially given the strength of Coonce’s claim.” To the best of her knowledge, she noted, the Supreme Court has always sent capital cases back to the lower courts for another look when both sides have agreed that it is the best course of action, particularly when “a new development has cast the decision below into such doubt.” The Supreme Court, she concluded, “has long emphasized the ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’” Sending the case back to the lower courts, she reiterated, “was the least the Court could have done to protect this life-or-death interest.”

This article was originally published at Howe on the Court.

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maxwellyjordan · 4 years ago

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A community-college spat leads to a First Amendment retaliation claim

From the time he was elected to the board of trustees of the Houston Community College System in 2013, David Wilson contends, he was unwilling to go along to get along. Wilson’s repeated criticism of what he describes as the board’s “pay to play” culture led the board to censure him in 2018. On Tuesday, the Supreme Court will hear oral argument on whether the First Amendment restricted the board’s authority to do so.

The Houston Community College District is a system of community colleges in the greater Houston area. It is run by a nine-member board, with each member elected by the public to represent a single-member district. Wilson contends that just before and during his time in office, the board “was plagued by accusations of corruption and other malfeasance, culminating in the longest-serving trustee’s conviction on federal bribery charges.” As a result, Wilson writes, he “actively aired his criticisms of the Board in the press and telephone campaigns.” This included speaking out against, among other things, a $45 million deal to establish the Community College of Qatar – a project that involved tens of thousands of dollars in luxury-travel expenses for board members. Wilson also filed two lawsuits against the college and individual trustees in state court, arguing that the board had violated its bylaws when it allowed a trustee to vote by videoconference and challenging Wilson’s exclusion from a board meeting.

Wilson’s actions led the board to adopt a resolution in January 2018 that publicly censured Wilson for his conduct. The resolution indicated that Wilson’s actions were “not consistent with the best interests of the College or the Board,” “in violation of the Board Bylaws Code of Conduct,” and reflected a finding by the board that Wilson’s “conduct was not only inappropriate, but reprehensible.”

The censure resolution prompted Wilson to add a federal civil rights claim to his first state-court lawsuit, arguing that the censure violated his right to free speech. Wilson asked the court to block the college and the trustees from enforcing the censure (which would include additional penalties such as barring him from running for officer positions on the board the following year) and $20,000 in damages and punitive damages.

The college removed the case to federal court, where Wilson later dropped his claims against the individual trustees. The district court dismissed Wilson’s lawsuit, holding that Wilson had not shown that he had actually been injured by the censure because he could still perform his official duties and speak publicly. Therefore, the district judge reasoned, Wilson lacked a legal right to sue, known as standing.

The U.S. Court of Appeals for the 5th Circuit reversed. Wilson, the court ruled, had alleged that the board had censured him as punishment for exercising his right to free speech – which is enough for standing. Moreover, the court of appeals added, Wilson had also made out a First Amendment claim. By a vote of 8-8, the full court of appeals declined to rehear the case. Houston Community College came to the Supreme Court, which in April 2021 agreed to weigh in.

Defending the censure at the Supreme Court, the college stresses that the First Amendment prohibits the government from using its power to regulate, compel, or prohibit speech. But the college didn’t do any of those things in this case, it emphasizes. Instead, it says, the censure was merely “peer criticism”: “a pointed expression of the body’s official disapproval and its desire that, as a fellow member of the Board,” Wilson “should speak and act differently in the future.”

The college contends that both history and tradition reject the arguments made by Wilson and the court of appeals. Throughout history, the college asserts, elected legislatures have disciplined their members for speech that criticized the legislature or the government, often using methods such as imprisonment or expulsion that were “much more extreme than censure.” The powers given to Congress in the Constitution “have long been understood to extend at least to censure or other forms of official reprimand,” the college continues, as evidenced by the Senate’s famous 1954 condemnation of Sen. Joseph McCarthy for conduct that “tended to bring the Senate into dishonor and disrepute.” That power to censure has extended to local elected government bodies, the college maintains.

Allowing Wilson to block the censure by arguing that it violated his First Amendment rights would itself undermine the First Amendment, the college contends. A local government body is normally entitled to speak for itself, including by responding to Wilson’s right to speak, even when that means preferring one position over another. The democratic process, rather than courts, should serve as a check on government speech, the college reasons. This can happen before the speech, as members of the community can weigh in on whether to adopt a censure resolution. And after a government body adopts a censure resolution, voters who disapprove of the individual member’s conduct and agree with the resolution can vote him out of office. Alternatively, voters who disagree with the resolution can vote against the members of the majority who supported it. “This,” the college contends, “is how democracy is supposed to work.”

The federal government filed a “friend of the court” brief supporting the college. It stresses that the question before the court is a narrow one, involving “only a censure imposed by an elected body against one of its members.” The justices need not and should not address any broader issues, the government emphasizes, such as whether Congress can censure members of the executive branch, like the president, or whether individual legislators can be sued or prosecuted for their work in office.

Wilson acknowledges that he could be censured for his conduct within what he calls the “legislative sphere” – his actions at official meetings or hearings or his contributions to reports, for example – without violating the First Amendment. But the board cannot, he continues, censure him for his speech outside that sphere. This conclusion is supported by history, he suggests, as the founders “considered official censures to be serious punishments,” rather than “expressions of opinion.” And in current practice, he notes, both modern courts and local elected bodies have also recognized that censures are a form of punishment. Indeed, local elected bodies, such as the Los Angeles City Council, use a two-stage process similar to a trial before censuring someone.

Wilson pushes back against the suggestion that the board’s censure of him was merely “peer criticism.” Houston Community College could have expressed its disapproval of Wilson’s speech by having board members speak out individually, or by adopting a statement indicating that Wilson’s criticisms did not reflect the board’s values, but without censuring him. Instead, he emphasizes, the board relied on its disciplinary power to censure Wilson.

In any event, Wilson writes, the board’s censure of him was “plainly punitive”: Not only did the board express disapproval of his speech, but there were direct consequences. He became ineligible for travel reimbursements and could not hold an officer position on the board, among other things. “These practical consequences impeded his ability to function as a trustee; they were stiff punishment designed to silence him.” Wilson contends that the censure is unconstitutional under the court’s 1966 ruling in Bond v. Floyd, a case involving the exclusion by the Georgia House of Representatives of a member who had been outspoken in his opposition to the Vietnam War. The Supreme Court ruled unanimously that the legislature’s disqualification of the member because of his statements violated his First Amendment rights.

Wilson concludes by warning the justices that a ruling in the college’s favor could have much broader implications. If, he writes, “censures are innocuous expressions of government opinion,” while legislatures could also “use their formal censure power to chill dramatically the speech of out-of-favor elected officials.”

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.

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maxwellyjordan · 4 years ago

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Two cases. Three hours of arguments. Four sets of lawyers. Fifty mentions of abortion. One pair of red socks.

A View from the Courtroom is an inside look at significant oral arguments and opinion announcements unfolding in real time.

An anchorman for one of the morning news shows on Monday hyped the upcoming arguments in Whole Woman’s Health v. Jackson and United States v. Texas by saying the Supreme Court would weigh “the constitutionality of the Texas abortion law.”

Not so fast. As one justice would say a little later, “we’re obviously not dealing with” the merits of the state’s restrictive law today. That would be true over nearly three hours of arguments focusing on whether the state had improperly shielded the law known as S.B. 8 from federal court review.

But still, the underlying issue is abortion rights, and there will be some reminders today of the stakes.

One question upon entering the courtroom is whether all the lawyers participating in the two distinct arguments will be present for what is scheduled to be two total hours for the two cases. Under the court’s COVID-19 protocols, counsel for the second case remain in the lawyers’ lounge, where they can listen to the arguments in the first case before moving to the courtroom. But today’s cases are sufficiently intertwined, and one lawyer is arguing in both, so the decision has been made that the four sets of lawyers will be present the whole time.

Texas Solicitor General Judd Stone. (Art Lien)

At around 9:40 a.m., Judd Stone, the Texas solicitor general, is joined by one colleague in the second chair of the lead table. Soon enough, they are joined by a third chair, Texas Attorney General Ken Paxton, a Republican who has been under indictment on state securities-fraud charges for more than six years. He has denied the charges, and is evidently still a member in good standing of the Supreme Court Bar, so he has pulled up a chair at the end of his team’s table.

At the other lead table is Marc Hearron, who will argue for Whole Woman’s Health, and a colleague. At the second table on the Texas side is Jonathan Mitchell, the former clerk to Justice Antonin Scalia who is said to have been the architect of the Texas abortion law. He also has a colleague in the second chair of the secondary table.

Marc Hearron argues for Whole Woman’s Health. (Art Lien)

Arriving at the second table on the other side is newly confirmed U.S. Solicitor General Elizabeth Prelogar, Deputy Solicitor General Brian Mitchell (who served as acting SG while Prelogar’s nomination was pending), and another colleague.

The SG’s team walks a few steps to greet their “friends” on both sides, which is when I notice that Prelogar is not wearing the traditional morning coat donned by the solicitor general. This is in keeping with the precedent set by one of Prelogar’s mentors, Justice Elena Kagan, who declined to wear the morning attire when she became solicitor general in 2009.

It is only with trepidation that I discuss attire in the courtroom at all, so at this point I’ll note that Paxton is making a fashion statement, too. He is wearing bright red dress socks, which can’t possibly escape notice by the justices because of his seat at the edge of the table. The “Guide for Counsel in Cases to Be Argued,” distributed by the clerk’s office and which presumably applies to second and third chairs as well as arguing lawyers, recommends “conservative business dress in traditional dark colors (e.g., navy blue or charcoal gray).” But it doesn’t specify anything about socks.

As with the October sitting, the general public remains left out of the courtroom, with credentialed Supreme Court reporters and justices’ law clerks spaced apart in the public gallery. In the VIP section, Joanna Breyer arrives and is soon joined by Jane Roberts. Breyer will stay the entire time, while Roberts will leave after about an hour.

When the justices take the bench at 10 a.m., Chief Justice John Roberts has a few preliminary matters. He begins by noting that today is the 30th anniversary of the investiture of Justice Clarence Thomas. As I have , there is a subtle change in the script between a member of the court’s 25th anniversary on the job, when the chief justice refers to “many more years of our common calling,” and the 30-year mark, when all bets are off and some more general congratulations are offered.

Roberts, on behalf of the court, says “I would like to extend to Justice Thomas our heartfelt congratulations on what is, for all of us, a very happy anniversary.” Thomas gives a short nod of thanks.

Roberts next recognizes Fletcher, thanking him for his service as acting solicitor general. Fletcher, in turn, introduces Prelogar as the new solicitor general.

The chief justice welcomes Prelogar to her “important duties” and notes that she is the 48th solicitor general of the United States, and “the 10th solicitor general of Justice Thomas’ tenure.” This prompts a hearty laugh from Thomas.

Prelogar thanks the chief justice, and notes that it will be “an honor to serve.” Her first important duty will be to argue a pretty major case, just days after her confirmation.

Roberts then calls the Whole Woman’s Health case, and the three-hour marathon of arguments begins. Amy Howe has SCOTUSblog’s main account. After a fair amount of attention in recent weeks to the study of interruptions on the court, which Justice Sonia Sotomayor said publicly was a factor in some of the tinkering with oral argument procedure, the justices seem especially courteous today.

“I don’t want to interrupt your answer to Justice Sotomayor,” Justice Samuel Alito says early on in the first argument, “but just to pick up on a point that you made, and maybe you could clarify this before you finish answering her question, if you haven’t finished already.”

Justice Brett Kavanaugh interrupts Hearron, then says, “Sorry to interrupt,” and only continues his question when the lawyer defers.

But later, Alito breaks into an answer from Prelogar with, “Let me just interrupt you …”

It is Kavanaugh who frames a question to Prelogar by reminding everyone that “we’re obviously not dealing with” the merits of the Texas abortion law today.

During one of the seriatim rounds of questioning (which we have learned were meant at least in part to address interruptions), Kagan asks Hearron “if I could turn technical for minute.” If many listeners thought all of today’s arguments were relatively technical to begin with, her question about the relief being sought is indeed a bit complicated.

Still, the arguments in both cases often come back to abortion. It is mentioned more than 30 times in the first case today, and more than 20 times in the second. It will surely be mentioned many times when the court takes up the constitutionality of the Mississippi abortion law in Dobbs v. Jackson Women’s Health Organization on Dec. 1. And network news morning anchors won’t be overstating the nuances when that case comes along.

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maxwellyjordan · 4 years ago

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Court seems inclined to let abortion providers pursue their challenge to Texas law

This article was updated on Nov. 1 at 5:45 p.m.

The Supreme Court heard oral argument on Monday in two challenges to S.B. 8, the Texas law that bans almost all abortions in the state. After nearly three hours of argument by four different lawyers, the justices appeared likely to allow the case brought by a group of Texas abortion providers to go forward, even if they did not necessarily appear to agree on the rationale for that lawsuit. The justices were more skeptical about the lawsuit filed by the Biden administration, and they did not give any hint as to whether the law will continue to remain in effect.

S.B. 8 prohibits doctors from performing abortions starting around the sixth week of pregnancy. That is a clear conflict with the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, which establish a constitutional right to an abortion up to the point at which the fetus becomes viable, which normally occurs around the 24th week of pregnancy. But Monday’s argument focused primarily on the law’s unusual enforcement mechanism, which distinguishes it from similar abortion bans that have been enacted by other states (and that have been consistently struck down by federal courts). S.B. 8 delegates the sole power to enforce the law to private individuals, rather than state officials. In particular, the law allows anyone, including people who do not live in Texas, to bring a lawsuit in state court against anyone who performs an abortion or helps to make one possible. A plaintiff in a successful lawsuit can receive at least $10,000 in damages, along with costs and attorney’s fees.

By taking away any role for the state in enforcing the law, S.B. 8’s drafters hoped to make it harder for opponents of the law to challenge its constitutionality in court, especially before the law went into effect on Sept. 1. They also hoped that the potential expansive liability and significant damages created by the law would deter abortion providers from performing any abortions, including those that would occur before the sixth week of pregnancy. Evidence from the past two months suggests the law is having its desired effect: Clinics have reported turning away many patients seeking abortions, and the number of abortions performed in the state has plummeted.

The two cases before the Supreme Court on Monday are two different efforts to challenge the law. One case, Whole Woman’s Health v. Jackson, began in July as an effort by abortion providers to block the law before it was scheduled to go into effect. The Department of Justice filed the second case, United States v. Texas, in early September after the court declined an emergency request from the abortion providers to put S.B. 8 on hold.

The providers’ challenge

A majority of the justices appeared skeptical that, despite Texas’ arguments to the contrary, no one can bring a lawsuit to challenge S.B. 8 before it is enforced. Justice Elena Kagan seemed to summarize the problem before the court, as well as the sentiment of several of her colleagues, when she observed that the “entire point of” S.B. 8 is to “find the chink in the armor” of Ex parte Young, a 1908 Supreme Court case allowing lawsuits in federal courts against state officials to bar them from enforcing unconstitutional laws, but prohibiting injunctions against state courts. She dismissed the idea that the court’s hands are tied merely because “some geniuses came up with a way to evade the commands of that decision, as well as … the broader principle that states are not to nullify federal constitutional rights.” The court, she suggested, should not simply resign itself to the idea that “we’ve never seen this before, so we can’t do anything about it.”

Justice Brett Kavanaugh echoed Kagan’s point a few minutes later. He told Stone that Ex parte Young “sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional” – normally, by suing a state official. This case, he explained, involved a “loophole that’s been exploited here, which is the private suits … enforced by state court clerks or judges.” So although the text of Ex parte Young is “strong for you,” he acknowledged to Stone, the rationale of Ex parte Young “would suggest extending the principle here” to allow the providers’ suit to go forward.The justices were mostly unmollified by the argument, made on Monday by Texas Solicitor General Judd Stone, that although pre-enforcement judicial review may not be available, the providers can still challenge S.B. 8 in the state courts if they are sued for violating the law, and they can eventually seek review of those decisions in the Supreme Court. Several justices expressed concern that because the penalties that flow from violations of the statute are both significant and broadly applicable, it will “chill” conduct: No one will be willing to challenge the law through that path, reducing the likelihood of federal court review.

Chief Justice John Roberts observed that, if Texas is correct, the only way an abortion provider can obtain federal court review of S.B. 8’s constitutionality is to violate the law. He outlined a hypothetical in which the penalty for violating the law was $1 million, instead of $10,000. In such a scenario, he posited, “no one is going to risk violating the statute because they’ll be subject to suit for a million dollars,” and so no one is likely to go to federal court at all.

Kavanaugh also asked Stone about S.B. 8’s retroactivity provision. If the law were to be blocked and a clinic legally performed abortions, Kavanaugh queried, would S.B. 8 allow lawsuits based on those abortions if the law later goes back into effect? When Stone responded that it would, Kavanaugh suggested that the retroactivity provision would also have a chilling effect, because of the “prospect of future changes” and “millions and millions of dollars” in potential liability.

And Justice Amy Coney Barrett emphasized that even pre-enforcement litigation in the state courts would simply not be as useful to the providers as litigation in federal courts. You can’t get, she observed, the same kind of global relief in state courts that a pre-enforcement challenge in federal courts would give you “from the prospect that the statute would be enforced against you.”

Justice Neil Gorsuch was more sympathetic, however, to the idea that the providers could obtain judicial review later. He stressed that other laws – involving, for example, gun rights and “rules during the pandemic about the exercise of religion” – “can only be challenged after the fact,” and he did not see any reason to treat S.B. 8 differently.

But other members of the court’s conservative wing openly worried about the prospect that S.B. 8’s enforcement scheme could be used to negate other constitutional rights. Kavanaugh cited a “friend of the court” brief by the Firearms Policy Coalition, a gun-rights advocacy group, arguing that the scheme could, as Kavanaugh put it, “easily be replicated in other states” to target gun rights, free speech rights, or religious rights.

Although six and perhaps even seven justices seemed to agree that the providers’ lawsuit should be allowed to go forward, it wasn’t entirely clear whom the justices regarded as the proper defendant in the case. Marc Hearron, who argued on behalf of the providers, told the justices that the county clerks who would docket the lawsuits against the providers would be the “most straightforward” defendants, because they are not covered by the court’s ruling in Ex parte Young. The providers are seeking a federal court order that would bar the clerks from processing any S.B. 8 lawsuits.

Justices Sonia Sotomayor and Stephen Breyer suggested that the Texas attorney general, Ken Paxton (who sat at counsel table in the courtroom on Monday with Stone), might be an appropriate defendant. If he were properly sued, Sotomayor continued, an injunction against him would also extend to any plaintiffs who filed lawsuits as “private attorneys general.”

And Kavanaugh wondered aloud whether state judges might in fact be fair game after all. The court’s ruling in Ex parte Young hinged on enforcement, he noted, and the court’s later decisions indicated that “when state courts entertain private civil suits, they enforce state law.” One of those decisions, Shelley v. Kraemer, Kavanaugh observed, used the word “enforcement” “27 times, give or take a couple, to describe what state courts do when they adjudicate private civil suits.”

Hearron assented. He pointed out that Judge Austin Jackson, one of the defendants in the providers’ case, has described himself as the “enforcer of the laws in east Texas.”

The federal government’s challenge

Expressing concern that the Biden administration was seeking broad power to bring lawsuits against states, the justices appeared more reluctant to allow the Biden administration’s case to go forward. They pressed Elizabeth Prelogar, who was confirmed last week as the Biden administration’s solicitor general, for examples of similar cases that the federal government had filed against states to protect constitutional rights.

Prelogar countered that she was not aware of examples because the Texas law is so unprecedented. The Biden administration is not asserting a right to sue Texas in federal court merely because the state enacted an unconstitutional law, she explained, but because the state set up an enforcement scheme to thwart judicial review of the unconstitutional law.

Roberts pushed back. He told Prelogar that although she portrayed the case as “very narrow,” “rare,” and “particularly problematic,” the authority you assert to respond to it is broad as can be.” What, Roberts asked, “is the limiting principle?”

But Justice Samuel Alito also resisted any efforts by Prelogar to advance a rule that he regarded as too narrow. If, in the future, the United States can only file a lawsuit against a state when all of the characteristics of S.B. 8 to which the Biden administration objects are present, Alito suggested, “is this what you’re really seeking, a rule for one case?”

Gorsuch also was dubious about the Biden administration’s effort to single out S.B. 8 as worthy of a lawsuit against a state. “We don’t get to pick and choose among our rights,” he admonished Prelogar. “We’re supposed to enforce them equally.” Why, he asked, is S.B. 8 different from other laws with a chilling effect?

Even the discussion in the Biden administration’s case, however, eventually turned back to the providers’ case – so much so that Prelogar began her rebuttal by discussing how a ruling in favor of the providers might affect the government’s case. Prelogar concluded by reiterating what she described as the “startling implications” of the state’s argument. If no one can bring a prospective lawsuit to block a law like S.B. 8, she stressed, then no constitutional right is safe, and none of the Supreme Court’s decisions are safe. “Our constitutional guarantees,” she told the justices, “cannot be that fragile.”

The majority seemed poised to agree with her, at least with regard to the S.B. 8 enforcement scheme. The justices will hear oral argument on Dec. 1 in a challenge to a Mississippi law that bans almost all abortions after the 15th week of pregnancy.

This article was originally published at Howe on the Court.

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maxwellyjordan · 4 years ago

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Abortion, guns, and the rocket docket

In advance of a momentous November argument session, SCOTUSblog Editor James Romoser joins Amy Howe to dissect the two challenges to Texas’ six-week abortion ban and the challenge to New York’s restriction on carrying guns in public.

Listen now on Acast.

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maxwellyjordan · 4 years ago

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Justices to parse jurisdictional thicket in arbitration dispute

Tuesday’s argument in Badgerow v. Walters brings the justices an unusual side of the Federal Arbitration Act. Frequently in recent decades, the justices have faced decisions by lower courts refusing to enforce arbitration agreements for one reason or another, decisions that the Supreme Court almost always has overturned. This case, by contrast, presents a side of the FAA the justices have not seen often: a messy procedural dispute about the jurisdiction of federal courts under the FAA. Specifically, the case asks when, if ever, do federal courts have jurisdiction over efforts to confirm (or vacate) an arbitration award.

The controversy involves a morass of litigation arising out of the employment of Denise Badgerow by a Louisiana financial advising firm formerly operated by respondent Greg Walters and two other individuals. In connection with that employment, as is typical in the securities industry, Badgerow signed an agreement calling for arbitration under rules promulgated by FINRA (the Financial Industry Regulatory Authority – a private organization that regulates securities professionals).

Since the firm fired her in 2016, Badgerow has variously contended that the firm had discriminated against her on the basis of gender and that she was fired in retaliation either for complaining about gender discrimination or for reporting various securities violations by her employer. Badgerow challenged her employer and respondents before the Equal Employment Opportunity Commission (complaining of her employer), in a FINRA arbitration (against the three individuals, but not her employer), and in a lawsuit in federal district court (against her employer, who had not signed the arbitration agreement, but not against the individuals, who had signed it).

After the EEOC, the arbitrator, and the federal court dismissed all of Badgerow’s claims, the employer filed a motion asking the federal court to confirm the award. Before the court acted, Badgerow sued the three individuals in a Louisiana state court asking that court to vacate the award as procured by fraud. When the individuals removed that case to the federal court already considering the motion to confirm the award, the court had to decide whether it had jurisdiction over Badgerow’s motion to vacate the award. When the lower courts decided in favor of federal jurisdiction and refused to vacate the award, Badgerow asked the Supreme Court to consider the jurisdictional question. If that seems a strange approach, notice that if the federal district court didn’t have jurisdiction, then Badgerow would be free to go back to state court and try to persuade that court to vacate the arbitration award against her.

The arguments revolve around the textual difference between Section 4 of the FAA – the provision that authorizes courts to compel arbitration – and Sections 9 through 11 of the FAA – the provisions related to confirmation, vacation, or modification of an award. As it happens, the Supreme Court has said little about Sections 9 through 11, but it has said quite a lot about Section 4, because that provision is implicated in the frequent cases mentioned above, where one party is trying to force the other into arbitration (which is to say, out of the judicial forum).

Section 4 provides that a party can ask for an order compelling arbitration in “any United States district court which, save for such agreement, would have jurisdiction … of a suit arising out of the controversy between the parties.” Relying on that language, the Supreme Court held in Vaden v. Discover Bank that federal courts have jurisdiction over motions to compel arbitration, but only if they would have had jurisdiction over the underlying controversy between the parties. The court held that the FAA (at least in Section 4) does not itself grant jurisdiction, but calls for courts to “look through” the motion to compel arbitration to the underlying dispute, accepting jurisdiction over the motion to compel only if the court would have had jurisdiction over a suit about the underlying controversy. Generally speaking that would be true if the underlying controversy arose under federal law (like the controversy here) or if the opposing parties were “diverse” (from different states).

The provisions that govern motions to confirm, vacate, or modify an arbitration award (Sections 9 through 11) do not include the language on which Vaden relied (about jurisdiction over the underlying controversy). Rather, the provisions say (to use Section 9 as an example) that the party can make an “application … to the United States court in and for the district within which such award was made,” and that the court “must grant” an order confirming the award if it does not vacate or modify it under detailed standards set out in Sections 10 and 11.

Badgerow reasons that the absence of the language held to be a grant of “look-through” jurisdiction in Vaden means that federal courts do not have jurisdiction over disputes under Sections 9 through 11 (like this one). Because disputes about confirming an arbitral award often will not raise federal-law issues – apart from the arbitration-favorable rules in the FAA – that reading would leave much of the litigation about the confirmation or vacation of an arbitral award to state courts.

Walters reads Vaden quite differently, as reflecting a general “look-through” principle pervading the FAA. For Walters, federal courts should be responsible for supervising arbitration of “federal” disputes like this one – which present claims under federal employment discrimination laws – and that should include not only compelling resistant parties to arbitrate up front, but also deciding after the fact whether to confirm the awards those arbitrators issue, all applying the standards that Sections 4 and 10 of the FAA provide.

The practical side of Walters’ argument is powerful. Section 10 includes detailed rules for exactly what it takes to justify vacation of an arbitral award. If Badgerow is correct, those rules rarely will apply except in the case where the parties happen to be from different states (so that federal courts would have diversity jurisdiction). An amicus brief from the U.S. Chamber of Commerce argues powerfully how perverse it would be to provide federal cradle-to-grave supervision of the arbitration process for purely state-law disputes with no federal connection other than the happenstance of diverse citizenship, while disputes involving claims created by federal law are left outside the detailed standards that Section 10 provides for deciding whether to confirm or vacate an award.

Having said that, I expect that some of the justices will find Badgerow’s textual argument compelling. Vaden does rely directly on the language in Section 4 to justify federal jurisdiction to compel arbitration of a federal-law dispute, and there is no similar language in Sections 9 through 11. The court could read the language quoted above (authorizing an application to a federal district court and stating that the court “must grant” relief) as authorizing jurisdiction, but that would not be easy to square with Vaden’s holding that the FAA itself does not grant jurisdiction.

I would not be at all surprised at argument if several of the justices are deeply unsatisfied with both of those positions. The Chamber of Commerce is bold enough to argue that the best answer is that the court just dropped the ball in Vaden, which should have held that the FAA itself grants jurisdiction to federal courts to enforce its provisions. It is not often that the justices reconsider their own statutory interpretations, but if they can’t find their way to an acceptable solution following Vaden, they well might consider that approach.

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maxwellyjordan · 4 years ago

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The morning read for Monday, Nov. 1

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Here’s the Monday morning read:

Novel Texas abortion case is back at the Supreme Court (Nina Totenberg, NPR)

Supreme Court embarks on most dramatic reckoning for abortion rights in decades (Robert Barnes, The Washington Post)

In Texas Abortion Law Case, a Spotlight on Brett Kavanaugh (Adam Liptak, The New York Times)

Eyes on Roberts, Kavanaugh and Barrett as SCOTUS considers Texas’ abortion ban (Joan Biskupic, CNN)

Speed of Texas abortion cases has few high court precedents (Mark Sherman, Associated Press)

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maxwellyjordan · 4 years ago

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The court must consider the national security and public safety threats posed by concealable weapons

This article is part of a symposium on the upcoming argument in New York State Rifle & Pistol Association v. Bruen. A preview of the case is here.

Mary B. McCord is executive director and Annie L. Owens is senior counsel at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.

New York State Rifle & Pistol Association v. Bruen represents the first significant Second Amendment case to be taken up by the Supreme Court since District of Columbia v. Heller in 2008. In Heller, the court held, for the first time, that the Second Amendment protects an individual right to keep and bear arms for self-defense. But the court also made clear that the Second Amendment right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and emphasized that its ruling did not impact “longstanding” restrictions on keeping and bearing firearms. The case now before the court attempts to chip away at longstanding restrictions on carrying concealed weapons, even though Heller acknowledged that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The justices should not decide this case without careful consideration of the threat that concealable weapons pose to national security and public safety — the very reasons that longstanding restrictions on concealed carrying do not infringe Second Amendment rights.

The ready availability of firearms in the United States — including high-powered concealable handguns like semi-automatic pistols — creates special national security and public safety challenges for communities. Foreign terrorist organizations have long urged their followers to take advantage of lax U.S. gun laws to plan attacks in the United States. In 2017, an Islamic State propaganda video featured an American fighter, wearing fatigues and a holstered pistol, urging sympathizers in the United States to “[t]ake advantage of the fact that you can easily obtain a rifle or a pistol in America” and “[s]pray the kuffar [infidels] with bullets.” A terrorist training manual disseminated on websites connected to al-Qaeda in the early 2000s instructed would-be terrorists to attend the “many firearms courses available to the public in USA,” such as “[h]andgun courses.”

In several instances, those inspired or directed by foreign terrorist organizations have complied, carrying out mass shootings with concealable weapons that have resulted in the loss of scores of lives. In 2016, an attacker who had pledged allegiance to the Islamic State shot and killed 49 people at the Pulse nightclub in Orlando, Florida. The attacker was armed with a Glock 17 9-millimeter semi-automatic pistol, among other weapons. At the time, the shooting was the deadliest terror attack on U.S. soil since Sept. 11, 2001. In 2019, a Saudi military pilot killed three people and injured eight at Naval Air Station Pensacola with a Glock 9-millimeter pistol he had obtained lawfully in the United States. The shooter, who had been radicalized abroad, coordinated with al-Qaeda in the Arabian Peninsula regarding planning and tactics.

The national security issues resulting from the ubiquity of firearms in the U.S. are not limited to foreign terrorist organizations and their followers. Mass shooters motivated by white supremacist and anti-immigrant ideologies have also used concealable firearms in successful attacks. Dylann Roof attended a Bible study at a Charleston, South Carolina, church before drawing his concealed .45-caliber Glock semi-automatic handgun and killing nine people. Robert Bowers used three Glock .357 handguns, along with an assault-style rifle, in his shooting spree at the Tree of Life synagogue in Pittsburgh, Pennsylvania, killing eleven.

The country has also seen a resurgence of armed political violence perpetrated by domestic anti-government extremist groups. In March 2020, anti-government figure Ammon Bundy founded the People’s Rights militia, which has staged violent and disruptive protests at the Idaho State Capitol against pandemic-related health restrictions. Bundy instructs members of his People’s Rights group “to train in small militia-style groups of two to 10 people” to prepare to defend against the government “force that is evident to come upon us.” In April 2020, armed members of a self-styled militia stormed the Michigan Capitol along with hundreds of other people to protest Governor Gretchen Whitmer’s imposition of pandemic-related restrictions. In October 2020, members of the same group were arrested for planning “a violent overthrow of government and law enforcement entities,” which included a plot to kidnap the governor. Its members “periodically met for ‘field training exercises’ … where they engaged in firearms training and tactical drills to prepare for … a violent uprising against the government or impending politically-motivated civil war.”

The unrest fomenting at the state level was a prelude to Jan. 6, 2021, when self-styled militias and anti-government extremists led a violent assault at the U.S. Capitol. The attack, which was designed to thwart Congress’ performance of its constitutional duty to count the electoral votes from the 2020 presidential election, marked the first time the Capitol had been breached by hostile forces since the War of 1812. Several private militia groups played a key role in organizing and instigating the attack, which FBI Director Christopher Wray labeled an act of “domestic terrorism.” Members of the Oath Keepers brought paramilitary gear, including firearms, tactical vests, helmets, and radios, and planned a Quick Reaction Force to be ready to deploy to prevent the certification of the vote. Multiple people charged in connection with the Capitol riot are alleged to have brought firearms, including assault-style rifles and concealable handguns. One man was caught in the Capitol Visitors’ Center with “a loaded handgun and a spare magazine,” while another who threatened “to shoot House Speaker Nancy Pelosi in the head” was arrested with “an assault-style rifle equipped with a telescopic sight, a Glock firearm with several high capacity magazines and over 2,500 rounds of ammunition — including at least 320 ‘armor-piercing’ rounds.” Many other rioters, aware of Washington, D.C.’s protective gun laws and restrictions against carrying firearms on federal property, did not bring firearms, likely saving lives.

The lethality of concealable firearms is not the only threat to national security. Images of political unrest in American streets undermine confidence in the strength and stability of our democracy and hurt our standing around the world. Indeed, in the latest Fragile States Index, which measures the political stability of countries across the globe, the United States saw the greatest decrease in overall stability of any country in 2020, driven in large part by increasing political polarization and associated violence.

The petitioners in New York State Rifle largely ignore these concerns, advocating a capacious view of the Second Amendment’s right to bear arms for self-defense outside the home that is especially dangerous in target-rich environments like New York City, Washington, D.C., and elsewhere. The threats to national security and public safety — which federal, state, and local officials are charged with protecting against — must inform the Supreme Court’s decision in this case, for the consequences could be significant.

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maxwellyjordan · 4 years ago

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In New York State Rifle, the court should look to text, history, and tradition

This article is part of a symposium on the upcoming argument in New York State Rifle & Pistol Association v. Bruen. A preview of the case is here.

Stephen P. Halbrook, a senior fellow with the Independent Institute, is the author of The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?

New York State Rifle & Pistol Association v. Bruen concerns whether New York may condition the right to carry a firearm on an official’s finding of “proper cause.” “Proper cause” means an exceptional need, and it excludes, for example, residence in a high-crime area. Possession of an unlicensed, loaded handgun subjects one to 15 years incarceration. The court should decide the case based on text, history, and tradition, the methodology it applied in District of Columbia v. Heller holding that a ban on handguns in the home violates the Second Amendment. In Heller, the court eschewed an “interest-balancing” test under which judges “decide on a case-by-case basis whether the right is really worth insisting upon,” and it should do the same here.

The parties agree that the starting point is the text: “the right of the people to … bear arms, shall not be infringed.” New York denied the carry licenses to Robert Nash and Brandon Koch because they failed to show “a non-speculative need for armed self-defense in all public places.” That suggests that bearing arms is a privilege, not a right.

As Justice Antonin Scalia explained in Heller, “bear arms” means to “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” Further, Scalia wrote, “self-defense … was the central component of the right itself.” However, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are presumptively valid, implying that arms may be carried in non-sensitive places.

So far, New York isn’t doing well on the text. How about history and tradition? New York finds solace in the Statute of Northampton (1328), which forbade any person to “bring no force in affray of the peace, nor to go nor ride armed” in certain places. Trouble is, Rex v. Sir John Knight (1686) read the statute to prohibit “going or riding armed in affray of peace,” i.e., in a manner “to terrify the King’s subjects.” The jury found that Knight did not carry guns in that manner.

William Hawkins, in Pleas of the Crown (1716), wrote that “no wearing of arms is within the meaning of the statute [of Northampton] unless it be accompanied with such circumstances as are apt to terrify the people…” New York quotes the rest of the sentence but ignores that part, as if no one would notice.

Was going armed banned in the American colonies? John Adams defended the British soldiers who shot five colonists to death in the Boston Massacre of 1770, claiming self-defense. Many of the civilians had gone armed, but Adams conceded that “the inhabitants had a right to arm themselves at that time, for their defence, not for offence.”

In 1786, Virginia enacted an act on affrays – drafted by Thomas Jefferson – forbidding a person to “go nor ride armed … in terror of the country.” If going armed peaceably was a crime, Jefferson would have been a notorious violator. And he copied into his Legal Commonplace Book penal reformer Cesare Beccaria’s truism that “laws that forbid the carrying of arms … make things worse for the assaulted and better for the assailants.”

The jurist St. George Tucker wrote in his edition of Blackstone’s Commentaries on the Laws of England (1803) that “[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without a sword by his side.”

Other than prohibitions in the South on concealed carry, there were no antebellum restrictions on peaceable carry. An 1836 Massachusetts law provided that, “on complaint of any person having reasonable cause to fear an injury, or breach of the peace,” a person who went armed “without reasonable cause to fear an assault or other injury” must find sureties to keep the peace (like today’s peace bond).

Per New York’s brief, people could carry “only if they could demonstrate good cause,” which is “a direct precursor of the licensing criterion at issue here.” Whoa, first a complainant must prove “reasonable cause to fear an injury, or breach of the peace.” Touché, New York responds, “merely carrying firearms in populous areas breached the peace.” Then why not just ban the carrying of firearms in populous areas?

The only persons required to obtain a license to carry in the antebellum period were free persons of color, and issuance was discretionary. And Chief Justice Roger Taney explained in the infamous Dred Scott decision, if free persons of color were citizens, they could “keep and carry arms wherever they went.”

When slavery was abolished in 1865, Mississippi enacted a law that no African American “not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms.” This was the kind of law that the 14th Amendment was adopted to preclude, as McDonald v. City of Chicago held.

Thus, the sole historical precedent for New York’s “may issue” license scheme is rooted in explicitly discriminatory law. I addressed this in an amicus brief for the National African American Gun Association. Today, New York officials have discretion to deny licenses to anyone. That discretion infringes on “the right of the people to … bear arms.”

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maxwellyjordan · 4 years ago

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The morning read for Thursday, Oct. 28

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Here’s the Thursday morning read:

Briefs Draw Battle Lines as Texas Abortion Law Nears Supreme Court (Adam Liptak, The New York Times)

Supreme Court is flooded with briefs as arguments on Texas abortion law approach (Ariane de Vogue, CNN)

Oklahoma turns to Supreme Court after long-delayed executions are halted again (Kim Bellware, The Washington Post)

Will the SB8 Case Allow SCOTUS to Appear Moderate? If So, What Follows? (Michael Dorf, Dorf on Law)

The Marble Palace Blog: Farewell to the Justices’ Barber (Tony Mauro, The National Law Journal)

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maxwellyjordan · 4 years ago

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No new relists, but you should read anyway

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

All the action on the relist front after the Oct. 15 conference was on the “output” side. The Supreme Court granted review in Ysleta del Sur Pueblo v. Texas, 20-493, involving gaming on Native American lands, and Denezpi v. United States, 20-7622, involving whether the Court of Indian Offenses of the Ute Mountain Ute Agency is a federal agency for purposes of a criminal conviction in that court. The court summarily reversed rulings adverse to police officers in two qualified immunity cases, City of Tahlequah, Oklahoma v. Bond, 20-1668, and Rivas-Villegas v. Cortesluna, 20-1539 (and denied cert in the cross-petition, Cortesluna v. Rivas-Villegas, 20-1690). And finally, the court granted the petition in Abdulla v. Garland, 20-1492, then vacated and remanded for further consideration in light of the federal government’s confession of error, which I discussed in my most recent column.

Perhaps because there is already too much excitement going on now, the Supreme Court did not relist any new cases after the Oct. 15 conference. So at the risk of engaging in “mission creep,” I’ll flag a couple of non-relisted cases that are on for this Friday’s conference that are worthy of attention anyway.

Back in April, the court asked the federal government for its views in Volkswagen Group v. Environmental Protection Commission of Hillsborough County. Volkswagen has asked the court to consider whether the Clean Air Act prevents state and local governments from regulating car manufacturers’ post-sale, nationwide updates to vehicle emissions systems. The solicitor general’s office has now filed its brief. It acknowledges a “shallow conflict” on whether federal law impliedly preempts such causes of action, but recommends the court not take the case. It argues that split “is unlikely to deepen — and may even resolve itself — in light of the court of appeals’ persuasive opinion in this case.” It further contends that “because EPA never directed or approved the updates at issue here, this case would be an unsuitable vehicle for clarifying the preemption rules that would apply in the circumstances that petitioners posit.” We should know soon whether the justices agree.

Knight v. Pennsylvania, 20-7805, is a capital case involving a defendant convicted based on his guilty plea of torturing and murdering an intellectually disabled woman. He was then sentenced to death. Petitioner Melvin Knight argues that although he had multiple IQ tests in the borderline range and a 2012 test that showed him with an IQ of 75, the trial court improperly refused to allow the jury to consider his intellectual disability because that score was not documented before he turned 18. Pennsylvania argues that Knight offered neither lay nor expert testimony that established that he had an intellectual disability and that the trial court’s actions are consistent with Supreme Court precedent. The court called for the record, indicating at least one of the justices is taking a close look at the case. The record has now arrived, and the justices will consider on Friday whether further action is warranted.

That’s all for this week. We’ll be back next week, hopefully with some new relists. Stay safe!

New Relists

What are you looking here for? You need to learn to focus and be present.

Returning Relists

Dignity Health, Inc. v. Minton, 19-1135 Issues: (1) Whether the free exercise clause of the First Amendment bars a state-law claim that seeks to compel a religiously affiliated hospital to allow medical procedures that violate its longstanding, deeply held religious beliefs; and (2) whether the First Amendment’s free expression and free association guarantees bar a state-law claim that seeks to compel a religiously affiliated hospital to allow — and thereby endorse and be associated with — medical procedures that violate its longstanding, deeply held religious beliefs. (relisted after the June 24, Sept. 27, Oct. 8 and Oct. 15 conferences; rescheduled after the July 1 conference)

Arlene’s Flowers Inc. v. Washington, 19-333 Issues: (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch. (certiorari petition relisted after the Jan. 10, 2020, Jan. 17, 2020, Jan. 24, 2020, Feb. 21, 2020, and June 24, 2021 conferences; rehearing petition relisted after the Sept. 27, 2021, Oct. 8 and Oct. 15 conferences)

Coonce v. United States, 19-7862 Issues: (1) Whether, because the age at which a capital defendant became intellectually disabled does not bear on his moral culpability, the U.S. Court of Appeals for the 8th Circuit erred in concluding that the Eighth and Fifth Amendments permit the government to execute the petitioner, Wesley Coonce ― though his 71 I.Q. and severe adaptive deficits otherwise meet the criteria for a medical diagnosis of intellectual disability that would bar his execution under 18 U.S.C. § 3596(c) and Atkins v. Virginia ― solely because his impairment originated at age 20 rather than before age 18; and (2) whether the 8th Circuit erred in concluding, like other circuits but unlike numerous state courts of last resort, that notwithstanding the Supreme Court’s recent teaching concerning the Sixth Amendment’s confrontation clause, its 70-year-old decision in Williams v. New York allows the admission of testimonial hearsay to prove an aggravating factor at a capital sentencing hearing. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

Naum v. United States, 20-1480 Issue: Whether the elements of 21 U.S.C. § 841(a)(l) as defined in United States v. Moore, requiring the government to prove unlawful distribution of a controlled substance “outside the usual course of professional practice” and “for other than a legitimate medical purpose” can be applied in the disjunctive, permitting the government to prove only that a prescription was prescribed “outside the usual course of professional practice” or “outside the bounds of professional practice” solely for violation of a professional standard without regard to the medical legitimacy of the medication. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

Roman Catholic Diocese of Albany v. Lacewell, 20-1501 Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

West Virginia v. Environmental Protection Agency, 20-1530 Issue: Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, non-air impacts and energy requirements. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

North American Coal Corporation v. Environmental Protection Agency, 20-1531 Issue: Whether 42 U.S.C. § 7411(d), which authorizes the Environmental Protection Agency to impose standards “for any existing source” based on limits “achievable through the application of the best system of emission reduction” that has been “adequately demonstrated,” grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

Arizona v. City and County of San Francisco, California, 20-1775 Issues: (1) Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend; (2) whether the Department of Homeland Security’s final rule interpreting the statutory term “public charge” is contrary to law or arbitrary and capricious; and (3) whether the decision below as to the rule should be vacated as moot under United States v. Munsingwear. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

Westmoreland Mining Holdings LLC v. Environmental Protection Agency, 20-1778 Issues: (1) Whether the Environmental Protection Agency may employ 42 U.S.C. § 7411(d) to impose standards of performance on existing stationary sources that are regulated under the “hazardous air pollutants” program of 42 U.S.C. § 7412; and (2) whether 42 U.S.C. § 7411(d) clearly authorizes the EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation’s energy system. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

North Dakota v. Environmental Protection Agency, 20-1780 Issue: Whether the Environmental Protection Agency can promulgate regulations for existing stationary sources that require states to apply binding nationwide “performance standards” at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive states of all implementation and decision making power in creating their Section 111(d) plans. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

Ruan v. United States, 20-1410 Issue: Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

Couch v. United States, 20-7934 Issues: (1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician. (relisted after the Sept. 27, Oct. 8 and Oct. 15 conferences)

American Civil Liberties Union v. United States, 20-1499 Issues: (1) Whether the Foreign Intelligence Surveillance Court, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction to consider an appeal from the denial of such a motion; and (2) whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions. (relisted after the Oct. 8 and Oct. 15 conferences)

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maxwellyjordan · 4 years ago

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In major Second Amendment case, court will review limits on carrying a concealed gun in public

The Second Amendment guarantees “the right of the people to keep and bear arms.” On Nov. 3, the Supreme Court will hear oral argument on how that guarantee applies to carrying guns in public. The case, New York State Rifle & Pistol Association v. Bruen, involves a 108-year-old handgun-licensing law in New York – but if the justices side with the challengers, their decision could jeopardize gun-control laws in other states and cities across the country.

Both sides in the case agree that the Constitution protects a right to carry a handgun outside of the home for self-defense, but they have very different views on whether and when the government can place restrictions on that right. The court’s decision is likely to be a major ruling on gun rights, and it could hinge on the justices’ view of the history of gun rights in England and the United States – a history that, like the right itself, the parties to the case hotly dispute.

Unlike most other areas of the law, the court has few recent cases to guide its ruling. In 2008, in District of Columbia v. Heller, the justices held that the Second Amendment protects an individual right to keep a gun in the home for self-defense. Two years later, in McDonald v. City of Chicago, the court confirmed that the states – and not just the federal government – must respect that right.

In the 11 years since McDonald, the justices have said little else about the scope of the Second Amendment, and in particular the right to carry a handgun outside the home. In 2019, the justices heard oral argument in a challenge to a New York City rule that restricted the transport of licensed handguns outside the city, but they sent that case back to the lower courts after the city the changed the rule. In that case, some of the court’s more conservative justices suggested that the lower courts were applying the rulings in Heller and McDonald too narrowly. One of those justices, Justice Brett Kavanaugh, urged his colleagues to take up another gun rights case soon. In April 2021, the court – now with a 6-3 conservative majority after the addition of Justice Amy Coney Barrett – did just that when it agreed to hear New York State Rifle & Pistol.

Background

The New York law at the center of the case resembles gun-control measures in several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey. Many cities also have similar restrictions. It requires anyone who wants a license to carry a concealed handgun outside of the home to show “proper cause” for the license. Courts in New York have defined “proper cause” to require applicants to show a special need to defend themselves. For instance, a person who has been the target of recurrent physical threats likely would qualify. But a general desire to protect oneself or one’s property is not enough to obtain an unrestricted license to carry a concealed handgun. (New York generally does not allow “open carry,” the practice of carrying unconcealed guns in public.)

The challengers in the case are a gun-rights advocacy group and two men, Robert Nash and Brandon Koch, whose applications for a concealed-carry license were denied. Both men, however, were granted a “restricted” license that allows them to carry a gun outside the home for target shooting and hunting. Koch is also allowed to carry a handgun for self-defense while traveling to and from work.

Nash, Koch, and the advocacy group went to federal court to challenge the ban on carrying handguns without a license. They also challenged what they view as the overly draconian “proper cause” requirement. The district court granted the state’s request to throw out the lawsuit, and the U.S. Court of Appeals for the 2nd Circuit upheld the dismissal. That led the challengers to come to the Supreme Court, which agreed to decide whether the state’s denial of Koch’s and Nash’s applications for a license violated the Second Amendment.

The challengers’ arguments

In their brief on the merits, the challengers contend that New York’s concealed-carry scheme is “upside down,” because the Second Amendment “makes the right to carry arms for self-defense the rule, not the exception.” In their view, the “text, history, and tradition of the Second Amendment” all lead to the conclusion that the denial of the men’s licenses was unconstitutional.

Starting with the text of the Second Amendment, they stress that the Second Amendment protects two separate rights: the right to “keep” – that is, possess – arms, generally at home; and the right to “bear” – that is, carry, for confrontation or defense — arms, typically outside the home. The right to “bear” arms, the challengers posit, must mean something separate from the right to keep arms, or its inclusion in the amendment would be superfluous.

This reading, the challengers continue, is supported by the history of gun rights in England and the United States before the ratification of the Constitution, as well as the years that followed. That history is likely to be especially important to the court’s conservatives, who believe the Second Amendment should be interpreted according to its original understanding at America’s founding. Heller, which was written by former Justice Antonin Scalia, relied extensively on historical sources (though the dissenters in that case disputed Scalia’s historical analysis). And the court’s three newest justices – Neil Gorsuch, Kavanaugh, and Barrett – all have suggested that they favor an originalist approach to the Second Amendment, rather than the more functional approach that many lower courts have adopted.

The challengers say history is on their side. Neither the American colonies nor the early states barred their residents from carrying guns, they emphasize; indeed, they note, state and local governments sometimes required their residents to carry guns. And during the country’s early years, the challengers add, the only restrictions that courts recognized on the right to carry a gun for self-defense were “narrow” ones “on abusing that right to terrorize the people.” The history of freed slaves after the Civil War also confirms their interpretation, the challengers assert, as Congress and the federal government “insisted that securing their Second Amendment rights was critical to ensuring that they could protect themselves” – a belief that hinged on “the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”

Because the text and history are so plain, the challengers conclude, New York’s denial of their concealed-carry applications violated the Constitution, and the New York law cannot survive no matter which constitutional test the court applies. More broadly, the challengers warn (as Justice Clarence Thomas has in the past) against treating the Second Amendment as a “second-class right.” The Supreme Court, they suggest, would not need long to strike down “a law that reserved First Amendment rights to those with an unusually compelling need to worship or criticize the government.”

New York’s arguments

The state does not dispute that there is a right to carry a gun outside the home for self-defense. It maintains, however, that the right is not absolute: A state can require, as New York has here, that anyone who wants to carry a handgun around other members of the public must show an actual need for protection. This kind of restriction, the state argues, is consistent with the practice in both England and the United States for the past 700 years, where the “[h]istory shows that local officials have long had wide latitude to decide where and under what circumstances firearms could be carried in public, and to restrict the carrying of concealable firearms, particularly in populous areas.” If anything, the state tells the justices, the New York law is in fact “less restrictive than many public-carry laws in place” in early American history.

The state adds that the Second Amendment does not require a “one size fits all” approach to concealed carry. Instead, the state observes, the United States has a “tradition of public-carry regulations that ‘suit local needs and values.’” It is for this reason, the state explains, that the other states with similar concealed-carry regimes “include the most densely populated cities of the country, consistent with the longstanding tradition of regulating public carry more closely in populous places.”

Even if the history did not show that New York’s scheme is constitutional, the state continues, the scheme would nonetheless pass muster under the constitutional test known as intermediate scrutiny. The more searching standard of review, known as strict scrutiny, does not apply, the state asserts, because the Supreme Court in Helleracknowledged that states have the authority to limit some public carrying of guns – for example, in schools and government buildings. The New York law can satisfy intermediate scrutiny, the state explains, because the state has strong interests in lowering rates of violent crime and gun violence, and it attempts to do so in a targeted way, by allowing people to carry handguns only when they have an actual need to do so. But if there is any doubt about whether the scheme can satisfy intermediate scrutiny, the state concludes, the court should send the case back to the lower courts for the development of more facts to make that decision.

The state ends with a warning for the justices. The challengers’ interpretation of the Second Amendment, it cautions, would not only strike down laws like New York’s. It also could mean the end for state and federal regulations “adopted to protect the public in sensitive places where people typically congregate — settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools.”

Other groups weigh in

The high stakes in the case are reflected in the number of “friend of the court” briefs filed on both sides – over 80 in total, including one from the Biden administration supporting New York. One brief supporting the challengers comes from a group of public defenders and Black legal aid lawyers, who tell the justices that the consequences of New York’s licensing scheme are “brutal” for racial and ethnic minorities, who are “routinely … charged with a violent felony for simply possessing a firearm outside of the home, a crime only because they had not gotten a license beforehand.” Another brief supporting the challengers argues that New York’s law prevents groups that are particularly vulnerable to violent crime – such as women, LGBTQ+ people, and religious minorities – from carrying a handgun to protect themselves.

New York also finds unexpected support, including from a group of prominent Republican lawyers, headed by J. Michael Luttig, a former federal judge whose name was often mentioned as a possible candidate for the Supreme Court vacancy eventually filled by Chief Justice John Roberts. The group argues that the District of Columbia’s public-carry restrictions “may well have prevented a massacre” at the Capitol during the Jan. 6 insurrection because protesters had been warned that they weren’t allowed to carry their guns in D.C. and therefore did not bring them. Citing Justice Samuel Alito’s dissent in Obergefell v. Hodges, in which the court held that the Constitution guarantees same-sex couples a fundamental right to marry, the group concludes that “[d]ifferent legislatures, chosen by the people of different states, have made different choices about” whether to allow people to carry guns in public – precisely, the group says, as the Constitution intended.

This article was originally published at Howe on the Court.

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maxwellyjordan · 4 years ago

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The morning read for Wednesday, Oct. 27

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Here’s the Wednesday morning read:

Texas Law Spurs Gun-Rights Group to Side With Abortion Providers (Kimberly Strawbridge Robinson, Bloomberg Law)

The Supreme Court is about to decide whether states can blatantly ignore the Constitution (Erwin Chemerinsky, The Sacramento Bee)

The Supreme Court case that could gut America’s gun laws, explained (Ian Millhiser, Vox)

Conservative justices, ignore all the empty threats about court-packing (Henry Olsen, The Washington Post)

A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency (Sheldon Whitehouse, Yale Law Journal)

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maxwellyjordan · 4 years ago

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The morning read for Tuesday, Oct. 26

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Here’s the Tuesday morning read:

Why Abortion Soared to Top of Supreme Court Docket (Greg Stohr, Bloomberg)

Why SCOTUS Didn’t Treat SB8 Like a Capital Case (Michael Dorf, Dorf on Law)

Supreme Court justices may have met a vaccine mandate some of them don’t like (Ariane de Vogue, CNN)

Supreme Court Vow Not to Be ‘Hacks’ Tested by Tribal Case Appeal (Jordan Rubin, Bloomberg Law)

Remembering the Great Dissenter (Glenn Reynolds, Law & Liberty)

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maxwellyjordan · 4 years ago

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Supreme speed: The court puts abortion on the rocket docket

Mary Ziegler is a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present.

The litigation surrounding S.B. 8, the Texas law that bans abortion after about six weeks of pregnancy, has been many things, but never ordinary.

The law itself, which outsources enforcement to literally any private citizen, is unique. Many states have criminalized abortion after a doctor could detect fetal cardiac activity, but Texas authorized lawsuits against abortion doctors and anyone else who “aids or abets” them. This strategy was designed to frustrate pre-enforcement challenges and put abortion providers out of business. In the past, when Texas required clinics to comply with the rules governing ambulatory surgical centers and mandated that doctors have admitting privileges at a nearby hospital, many clinics closed, never to reopen, even after the Supreme Court ultimately held those laws to be unconstitutional. Allowing S.B. 8 to go into effect, its supporters hoped, would have the same effect.

Texas invoked sovereign immunity to shield itself from suit. Under Ex parte Young, plaintiffs can seek injunctions against government officials charged with enforcing potentially unconstitutional laws. Abortion providers sued a range of lawmakers, judges, and Mark Lee Dickson, an anti-abortion activist. But Dickson disclaimed any intent to bring a lawsuit under S.B. 8, and Texas claimed that none of the state officials were proper defendants because the law gives them no role in directly enforcing the ban.

Shortly before Sept. 1, when S.B. 8 was scheduled to take effect, the providers came to the Supreme Court with an emergency application seeking to block the law. The court remained silent for more than 24 hours, thereby letting the law go into effect. Then, late at night on Sept. 1, the court issued a cryptic order denying the providers’ request for an injunction. The vote was 5-4. In dissent, Chief Justice John Roberts described S.B. 8 as “unprecedented.”

The same, of course, was true of the Supreme Court’s response. The court signed off on a law that its framers described as an attempt to circumvent rights recognized by the federal judiciary. More remarkably still, the court treated S.B. 8 as a matter of no great urgency.

As I wrote at the time, delay and indifference defined the court’s initial response to S.B. 8. Not so anymore.

Last week, the court took up two challenges to S.B. 8. One, brought by abortion providers, asked the justices to weigh in on “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to private citizens.

The court also granted a separate petition from the Justice Department. The United States, which until now had never brought a challenge to a state abortion restriction, argued that S.B. 8 interferes with its sovereign interest in ensuring that states recognize federal constitutional rights. DOJ also argued that the law raises preemption concerns by threatening the work of federal agencies, employees, and contractors who might offer abortion services.

In addition to granting the providers’ petition, the court will address whether the United States may sue the state of Texas, “state officials,” and “private parties” to “prohibit S.B. 8 from being enforced.” And rather than sitting on its hands, the court set a breakneck pace. It ordered an accelerated briefing schedule and set a date for oral arguments in both cases just 10 days from when the court agreed to hear them — a near record reminiscent only of the court’s speed in resolving the 2000 presidential election in Bush v. Gore.

Tea-leaf readers will find the court’s actions difficult to parse. The court again let S.B. 8 remain in effect. If the justices believe this law is unconstitutional, letting it linger seems strange. For many, the effects of S.B. 8 will be irreversible — for pregnant women seeking abortions and for clinics that will struggle to reopen. But the court is clearly in a hurry, which seems strange if the justices see nothing concerning about S.B. 8’s scheme. And in contrast to the previous 5-4 split, this time only Justice Sonia Sotomayor dissented from the court’s willingness to let the law remain in force. It seems unlikely that Roberts, Justice Stephen Breyer, and Justice Elena Kagan are any more at peace with the S.B. 8 scheme now than they were in early September. Perhaps they remained silent because they are confident that the law will not be in effect much longer.

It is not even clear whether the court will address the core substantive question: whether this court believes a six-week abortion ban is unconstitutional — and, by implication, whether Roe v. Wade and Planned Parenthood v. Casey are still good law. The grant in the Justice Department case is vague enough that it would allow consideration of the merits. The providers’ petition — which asks whether a state “can insulate from federal court review a law that prohibits exercise of a constitutional right” — builds in the question of whether S.B. 8 violates a constitutional right. On the other hand, the court did not take up Texas’ suggestion in the Justice Department’s case to explicitly reconsider Roe and Casey. Most likely then, the court will resolve only procedural questions about S.B. 8 and will do so quickly — perhaps before the court even hears oral argument on the constitutionality of Mississippi’s 15-week abortion ban in early December.

What seems clear is that the justices are taking S.B. 8 seriously now. Respect for the gravity of the issue had long been the hallmark of the court’s abortion jurisprudence, which recognized the dignity of life in the womb and the importance of pregnant women’s interests in equality and autonomy. In the court’s response to S.B. 8, that respect was nowhere to be found. The court’s indifference was even more breathtaking because of what S.B. 8 represents — other states could easily use a similar scheme to frustrate the exercise of everything from the right to bear arms to religious liberty.

The S.B. 8 litigation has damaged the court. Aside from polls showing the court’s reputation in freefall, the justices themselves have seemed unusually defensive. In the past month and a half, several have taken to the microphone to insist that they are not, in the words of Justice Amy Coney Barrett, “partisan hacks.”

Many dismissed the justices’ promises to be above politics, and with reason. In its first iteration at the high court, the S.B. 8 litigation suggested not only that politics influenced the outcome but that the justices treated abortion, an issue of great concern to many Americans, with a mixture of contempt and nonchalance. The court’s rocket-docket response to last week’s developments might change the narrative. It was clear for decades that Americans on either side of the abortion issue treated the fate of Roe as a matter of grave concern. Now, it seems, the Supreme Court may once again agree.

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