Friday round-up

By on Jan 19, 2018 at 7:16 am

Last night the Trump administration asked the Supreme Court to take the highly unusual step of agreeing to review a lower-court decision preventing the federal government from dismantling the Deferred Action for Childhood Arrivals program, known as DACA, even though the appeals court has not yet ruled on the case. Amy Howe covers the government’s request for this blog; her coverage first appeared at Howe on the Court. Additional coverage comes from Ariane de Vogue at CNN, Robert Barnes at The Washington Post, and Pete Williams at NBC News, who reports that “[t]he Supreme Court has granted similar requests only about a dozen times in the past century, most often involving national emergencies.”

Yesterday evening the Supreme Court, at the request of North Carolina Republicans, agreed to put a hold on a lower-court order to redraw the state’s congressional districts, which the lower court had invalidated as an unconstitutional partisan gerrymander. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. For The New York Times, Adam Liptak and Alan Blinder report that the Supreme Court’s order makes it “likely that the midterm elections this year will be conducted using districts favorable to Republican candidates.” Additional coverage comes from Gary Robertson at the Associated Press, Ariane de Vogue at CNN, Andrew Chung at Reuters, Greg Stohr at Bloomberg, Josh Gerstein at Politico, and Robert Barnes for The Washington Post, who reports that “[t]he decision was not unexpected, because the Supreme Court generally is reluctant to require the drawing of new districts before it has had a chance to review a lower court’s ruling that such an action is warranted, especially in an election year.” At the Election Law Blog, Rick Hasen observes that “it will take a few months before the Court decides whether to hear the case, and that means either a remand after the other partisan gerrymandering cases are decided this term or setting the case for argument (almost certainly next term).”

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In June 2012, President Barack Obama signed a policy known as “Deferred Action for Childhood Arrivals” (popularly known as DACA), a program that allows undocumented immigrants who came to the United States as children to apply for protection from deportation. Today the federal government went to the Supreme Court, asking it to intervene immediately in a legal dispute over whether the Trump administration can end DACA – and to rule on the dispute before the court’s summer recess.

The clash now at the court arose last fall, when the Trump administration announced that it would terminate DACA, which would result in some of the 800,000 young adults who qualified for the program becoming eligible to be deported. On January 9, a federal trial judge in San Francisco barred the government from ending the program anywhere in the United States.

On January 16, the Department of Justice announced that it had appealed the judge’s ruling to the U.S. Court of Appeals for the 9th Circuit. In a press release, U.S. attorney general Jeff Sessions declared that the government would also take what he described as the “rare step” of going directly to the Supreme Court – a procedure known as “certiorari before judgment.”

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Last week a three-judge federal court in North Carolina struck down the state’s federal congressional map, ruling that Republicans had drawn the map to give themselves an advantage over Democrats – specifically, the court stressed, to guarantee Republicans’ “domination of the state’s congressional delegation.” The court ordered the state legislature to come up with a new plan by January 24, but tonight the Supreme Court put that order on hold, to give the state’s Republicans time to appeal.

In a request filed last week, the state’s Republicans complained that the three-judge district court had used “an entirely novel legal theory to hopelessly disrupt North Carolina’s upcoming congressional elections.” They told the justices that there “is no reason to treat this case differently from” Gill v. Whitford, the Wisconsin partisan-gerrymandering case in which the court blocked an order requiring that state to draw new maps.

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Petition of the day

By on Jan 18, 2018 at 6:00 pm

The petition of the day is:

17-913

Issue: Whether the 14th Amendment gives adoptive parents the same right as biological parents to direct the upbringing of their children.

 
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Encino Motorcars v Navarro was up for a repeat performance yesterday, as the justices heard argument for the second time on the question whether the Fair Labor Standards Act protects the service advisors who greet you when you take your car to a dealership for service. The last time they heard the case, almost two years ago, the justices decided that the 2011 Department of Labor regulation bringing those advisors under the FLSA was invalid – criticizing the department for an utter failure to explain its decision to depart from a longstanding status quo under which the advisors were not entitled to FLSA protections.

The 2016 opinion did not, however, offer any guidance on the ultimate question of coverage, which is back before the justices again this week. Because the justices decided last time that the department’s regulation is irrelevant, all of the discussion yesterday focused on the language of the statute, which exempts “any salesman, partsman, or mechanic” who is “primarily engaged in selling or servicing automobiles.”

James A. Feldman for respondents (Art Lien)

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In its conference of January 19, 2018, the court will consider petitions involving issues such as whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled; whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

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Thursday round-up

By on Jan 18, 2018 at 7:17 am

Yesterday the justices heard oral argument in two cases. The first was Encino Motorcars v. Navarro, which asks whether service advisors at car dealerships are exempt from the Fair Labor Standards Act’s overtime-pay requirements. Mark Walsh offers a first-hand account of the argument for this blog.

Yesterday’s second argument was in McCoy v. Louisiana, in which the court will decide whether the law allows a defense attorney in a capital case to concede a defendant’s guilt to the jury over the defendant’s explicit objections. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. At NPR, Nina Totenberg reports that “[j]ustices liberal and conservative signaled that they have a problem with a lawyer who disregards his client’s express wishes by conceding the defendant’s guilt.” According to Jess Bravin for The Wall Street Journal, “[w]ith the matter of Mr. McCoy’s rights apparently decided, the justices seemed more concerned with writing an opinion that wouldn’t go too far in letting defendants micromanage their cases.” Additional coverage of the argument comes from Mark Sherman at the Associated Press, Kevin Daley at The Daily Caller, Robert Barnes for The Washington Post, Richard Wolf for USA Today and Adam Liptak for The New York Times.

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Petition of the day

By on Jan 17, 2018 at 6:00 pm

The petition of the day is:

17-862

Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which states that “the principal prosecuting attorney” of a state or locality may apply for an order authorizing the interception of wire, oral, or electronic communications, 18 U.S.C. § 2516(2), allows a principal prosecuting attorney to delegate the task of applying for such an order to a subordinate.

The Supreme Court heard oral argument today in the case of Robert McCoy, a Louisiana death-row inmate who says that he should get a new trial because his own lawyer told jurors that he was guilty – over McCoy’s express objection. After just over an hour of spirited debate, the justices seemed sympathetic to McCoy’s plight, even if they were less certain about the legal principle on which they might rely to rule in his favor.

The case before the court today dates back to 2011, when McCoy was tried on three counts of first-degree murder for the shooting deaths of his estranged wife’s mother, stepfather and son. McCoy maintained that he was not in the state when the murders occurred, and that he was being framed by local police. But his attorney, Larry English, believed that the evidence against McCoy was “overwhelming,” and that his best chance to save McCoy’s life was to concede McCoy’s guilt and try to convince the jurors that McCoy hadn’t intended to kill anyone. English’s strategy backfired: McCoy was convicted and sentenced to death.

Arguing for McCoy today, former U.S. solicitor general Seth Waxman emphasized that the Constitution “guarantees a personal defense that belongs to the accused, and whether to admit or contest guilt is the paradigmatic example of that personal defense, not only because it singularly affects the life and liberty of the accused, but also because making that decision requires weighing subjective aspirations and value judgments that are unique to every individual.” Waxman spent much of his time at the lectern, however, addressing an issue first raised by Chief Justice John Roberts: How widely would his proposed rule apply? Or, put another way, how should courts figure out what kinds of decisions and strategies are sufficiently important to warrant a new trial if a lawyer disregards his client’s wishes?

Seth P. Waxman for petitioner (Art Lien)

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There are some 40,000 job classifications in the United States (a figure used by Justice Stephen Breyer today). Under the Fair Labor Standards Act of 1938, many are eligible for overtime pay. Many others are expressly exempt, either under the statute or under Department of Labor regulations.

Of all those jobs, only one has come under scrutiny in the Supreme Court twice in the last three terms over whether it is exempt from overtime pay — service advisor in an automobile dealership. In Encino Motorcars LLC v. Navarro, the justices will once again attempt to answer whether the employee who greets you in the dealership service department is eligible for overtime.

Of course, many of the jobs of the new economy would mystify Americans of 1938 — computer systems analyst, database security administrator, desktop publisher, ride-hailing driver and virtual assistant. These are all from the Labor Department’s Occupational Outlook Handbook, which still lists thousands of old-economy jobs and tends to toss a lot of newer ones into broader, traditional categories.

Before we get to the Encino Motorcars argument, there is a special job classification being used in the courtroom today — sign-language interpreter for the deaf. For at least the second time in two years, the court is swearing in several members of the Deaf and Hard of Hearing Bar Association, and it has permitted two sign-language interpreters to sign the court’s two arguments this morning. In addition, as it did when I wrote about a previous visit of the bar group in 2016, the court is allowing Communication Access Realtime Translation, or CART. Several of the bar-group members have brought their smartphones or tablets into the bar section to follow the arguments on screen. (It’s a special secure wi-fi system active only for occasions such as this.)

Paul D. Clement for petitioner (note, deaf lawyer in foreground using handheld device to follow argument) (Art Lien)

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