Editor's Note :

Editor's Note :

We expect orders from the February 23 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.
On Monday the court hears oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Amy Howe has our preview.
On Monday the court also hears oral argument in Ohio v. American Express Co. Beth Farmer has our preview.

This morning the Supreme Court released its April argument calendar, which includes oral argument in Hawaii’s challenge to the travel restrictions imposed on nationals from eight countries in President Donald Trump’s September 24, 2017, order. A few hours later, a second set of challengers asked the justices to join their case with Hawaii’s and consider yet another question in the dispute.

The petition for review filed today came from the International Refugee Assistance Project, a New-York-based human rights group. The group’s request is somewhat unusual, because briefing in the Hawaii case is well underway – indeed, the federal government had already filed its opening brief two days ago. In early December 2017, the justices allowed the September 24 order to go into effect while the federal government appealed rulings by federal district judges in Hawaii and Maryland that blocked the implementation of the ban. In those December 2017 orders, the justices indicated that they expected the courts of appeals to issue their decisions “with appropriate dispatch.” The U.S. Court of Appeals for the 9th Circuit issued its ruling upholding the Hawaii district court’s decision on December 22, and on January 5 the government asked the Supreme Court to weigh in – which it agreed to do two weeks later, on January 19.

When the justices granted review in the Hawaii case, they instructed the federal government and Hawaii to brief a fourth question not included in the government’s petition, but raised in Hawaii’s brief opposing review: whether the September 24 order violates the Constitution’s establishment clause, which (among other things) bars the government from favoring one religion over another. The 9th Circuit had not decided that question, ruling instead that the September 24 order exceeded the president’s powers under federal immigration laws. The establishment clause question was, however, one of the issues pending in IRAP’s case before the U.S. Court of Appeals for the 4th Circuit, which heard oral argument on December 8 but did not issue its decision until last week.

In an opinion issued on February 15, the 4th Circuit upheld the Maryland district judge’s ruling, holding that the September 24 order likely violates the establishment clause. In the brief filed today, IRAP urged the justices to take its case and consolidate it with Hawaii’s to review the lower court’s holding that the order could be enforced for individuals who lack a genuine relationship with a person or entity in the United States. Moreover, IRAP added, its case is the better one in which to review the establishment clause question, because the lower courts made findings and analyzed the issue in detail.

In a separate motion filed alongside its petition for review, IRAP asked the justices to act quickly, by ruling on its motion to expedite the briefing schedule by Monday and – if the motion is granted – ordering the government to respond by Wednesday, February 28. That would allow the justices to consider IRAP’s petition at their private conference on March 2, just one week from now.

 This post was first published at Howe on the Court.
 
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Petition of the day

By on Feb 23, 2018 at 7:30 pm

The petition of the day is:

17-1090

Issues: (1) Whether the takings clause applies to the decisions of federal courts, and, if so, under what circumstances may federal courts review and remedy federal judicial takings claims; and (2) whether the Court of Federal Claims may adjudicate federal judicial takings claims against the United States when the remedy sought is just compensation and not invalidation of another federal court’s decision.

In a brief opinion filed on Wednesday, the Supreme Court decided that Rodney Class’ guilty plea did not automatically preclude his challenge to the constitutionality of the statute under which he was convicted. Justice Stephen Breyer’s 10-page discussion concludes that “this holding flows directly from this Court’s prior decisions.” Justice Samuel Alito’s dissent, joined by Justices Anthony Kennedy and Clarence Thomas, variously describes Breyer’s opinion as “incoheren[t]” and “a muddle,” and indeed the opinion provides no definitive answer regarding what appellate claims, precisely, a guilty plea that lacks explicit waivers of appeal will allow. Nevertheless, the opinion makes clear that in “these circumstances, Class … neither expressly nor implicitly waived his right to appeal,” and that absent any such waiver, challenges to “the constitutionality of the statute of conviction” will be allowed.

Justice Breyer with opinion in Class v. United States (Art Lien)

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Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

Posted in Merits Cases
 
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The Supreme Court today released its oral argument calendar for April, the final sitting of the court’s October Term 2017. The justices will close out their regularly scheduled arguments on April 25 with Trump v. Hawaii, the challenge to the president’s September 24, 2017, order restricting travel to the United States by nationals of eight countries. Last June the justices agreed to hear a challenge to a predecessor of the September 24 order, but they removed the case from their merits docket and sent it back to the lower courts after the president issued a new order. On December 4, the justices allowed the government to enforce the full set of restrictions while its appeals are pending, which means that those restrictions will almost certainly remain in place until the court issues its decision by late June or early July. The travel case is the only case scheduled for oral argument on April 25, while the justices will hear oral arguments in three cases (rather than their normal two) earlier that week – suggesting that the court wanted to leave open the possibility of extending the oral argument.

Although Trump v. Hawaii is the highest-profile case scheduled for oral argument in April, the court’s calendar for the month is packed with a number of other significant cases. On April 17, the justices will hear oral argument in South Dakota v. Wayfair, in which they will decide whether to overrule an earlier decision holding that the Constitution bars a state from requiring catalog retailers to collect sales taxes on sales made to state residents unless the retailer is “physically present” in the state. On April 23, the justices will hear oral argument in an important administrative law case: Lucia v. Securities and Exchange Commission, a challenge to the practice of having SEC staff, rather than the whole commission, appoint administrative law judges of the Securities and Exchange Commission. And on April 24, the justices will take up challenges to Texas’ redistricting plans in two cases, both captioned Abbott v. Perez, consolidated for one hour of oral argument.

A full list of the cases slated for argument in April can be found below the jump.

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Editor’s note: An earlier version  of this post ran on January 22, as an introduction to this blog’s symposium on Minnesota Voters Alliance v. Mansky, as well as at Howe on the Court, where it was originally published.]

In 2010, Andrew Cilek went to his local polling place in Hennepin County, Minnesota, to vote. Cilek was wearing a T-shirt that had three different images on it: the Tea Party logo, the message “Don’t Tread on Me,” and an image of the Gadsden flag, which dates back to the American Revolution but is often associated these days with the Tea Party and libertarianism. Cilek also wore a small button bearing the message “Please I.D. Me,” worn by opponents of voter fraud. An election worker in the polling place told Cilek he would have to cover up or take off the shirt and button. Cilek refused to do so, and later made two more attempts to enter the polling place. On his third try, he was allowed to vote, but an election worker took down his name and address.

The source of the clash was a Minnesota law which provides that a “political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” Cilek may have gotten mad at the state for restricting his apparel, but he also decided to get even: He was also a co-founder of the Minnesota Voters Alliance, which describes itself as a “nonpartisan political organization” made up of “citizens, volunteers, and experts committed to safeguarding and improving our elections process.” And next week the Supreme Court will hear oral argument in the group’s challenge to the constitutionality of the Minnesota law.

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Friday round-up

By on Feb 23, 2018 at 7:07 am

In anticipation of Monday’s oral argument, Supreme Court coverage and commentary focus on Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. At Bloomberg, Greg Stohr calls the case a “clash [that] is as much about the value of unions as it is about constitutional rights.” Adam Liptak looks at Janus for The New York Times, noting that “[a] ruling against public unions is unlikely to have a direct impact on unionized employees of private businesses,” but that “most of the labor movement’s strength these days is in the public sector.” In an op-ed at Forbes, Brian Miller counters the argument that “if workers were given the choice, many might leave the union and free ride off its services,” pointing to evidence “showing union membership has actually increased in at least three states that have already ended compelled union fees.” At The Hill, Lee Saunders argues that a “ruling for the plaintiff would also be a breach of federalism, normally a cherished judicial principle on the right, by mandating a one-size-fits-all solution for an inherently local concern.” Additional commentary comes from Ian Millhiser at ThinkProgress.

For USA Today, Richard Wolf reports that United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas, “is forcing the Supreme Court once again to match old laws to new technology.” Kimberly Robinson and Jordan Rubin discuss the case in an episode of Bloomberg BNA’s Cases and Controversies podcast.

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Posted in Round-up
 
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Petition of the day

By on Feb 22, 2018 at 6:12 pm

The petition of the day is:

17-1089

Issue: Whether county sheriffs in Georgia function as an arm of the state, and are thus entitled to Eleventh Amendment immunity, when they feed (or fail to properly feed) people detained in the county jail.

 
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In its conference of February 23, 2018, the court will consider petitions involving issues such as whether the acting secretary of the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is lawful; whether under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague; and whether the administrative law judges of the Federal Deposit Insurance Corporation are inferior officers under the appointments clause, U.S. Const. Art. II, § 2, Cl. 2.

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In a 5-4 decision, the Supreme Court in Murphy v. Smith held that prisoners who are awarded attorney’s fees in connection with their successful civil rights cases must also pay those fees, up to a maximum of one quarter of their damages awards. The decision is a loss for prisoners – particularly those with egregious cases – some of whom will now see more of their damages awards go to their attorneys than they otherwise would have. It is also a loss for district-court discretion; the approach rejected by the majority would have allowed district courts to decide how much of a prisoner’s damages award should go toward fees, ranging from a very small amount up to a maximum of 25 percent of the award.

Justice Gorsuch with opinion in Murphy v. Smith (Art Lien)

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