In 1875, Chae Chan Ping left San Francisco for China with a certificate promising him re-entry upon his return. Congress had recently banned new laborers from China, but it had made an exception for previous residents who held certificates like Ping’s. While Ping was gone, however, Congress expanded the ban to include even certificate-holding previous residents – a complete surprise to Ping when he arrived back in San Francisco twelve years later. Ping’s lawsuit, the Chinese Exclusion Case, would go before the Supreme Court in 1889 and, as Polly Price argued in a recent lecture sponsored by the Supreme Court Historical Society, provide a foundation for immigration case law in the Progressive Era.
John Elwood reviews Monday’s relisted cases.
It’s the Friday before Memorial Day, which means if you’re reading skimming this post, you’re probably experiencing an interminable wait in an airport security line, wearing a neck pillow, and actively loathing the family of four ahead of you. If you’re looking for another outlet for your misanthropy, you’ve come to the right place. The Elite Eight added a fab five new relists to this week’s tally, meaning you’ve got a lot of absent-minded scrolling ahead of you as you inch your way to the body scanners. Take solace in the fact that you’ll get to your destination . . . eventually. (I say having reached my Final Destination for the weekend.)
Coverage relating to the death of Justice Antonin Scalia and the nomination of Chief Judge Merrick Garland to succeed him comes from Mike DeBonis of The Washington Post, who reports that a Utah newspaper mistakenly published Sen. Orrin Hatch’s op-ed on his meeting with Garland before the meeting took place. Commentary comes from a podcast at Advice and Consent and from Ed Kilgore, who in New York suggests that Donald Trump’s release of a list of potential nominees “might allow conservatives paranoid about past SCOTUS ‘betrayals’ by Republican presidents and/or anxious to push their particular candidates and constitutional theories to insist on other candidates — and presidents — in the future.” Continue reading »
The petition of the day is:
Issue: (1) Whether insurance fraud investigators are covered by the administrative exemption from the Fair Labor Standards Act’s overtime-pay requirement, 29 U.S.C. § 213(a), as the Sixth Circuit has held in conflict with the Fourth Circuit’s judgment below; and (2) whether an exemption to the Fair Labor Standard Act’s overtime-pay requirement must be narrowly construed and established by clear-and-convincing evidence, as the Fourth Circuit held, in conflict with fundamental principles of statutory construction and the decisions of every other court of appeals.
April and May were busy months for the Supreme Court Justices, as they crossed the country to adjudicate moot courts, deliver commencement speeches, and give remarks at judicial conferences.
Justice Samuel Alito and Justice Elena Kagan both traveled to New York in early April to serve as judges for moot court finals. Alito sat on the judges’ panel for the annual Irving R. Kaufman Memorial Securities Law Moot Court Competition at Fordham Law School on April 3, while Kagan helped adjudicate the final argument in the Orison S. Marden Moot Court Competition at New York University School of Law on April 4. While at NYU, Kagan also participated in a question-and-answer session, which The New York Times covered. Kagan complimented Chief Justice John G. Roberts for his leadership after Justice Antonin Scalia’s death: “I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now.”
When is retirement not really retirement? Just ask Justices David Souter, Sandra Day O’Connor, and John Paul Stevens.
The three Justices may have retired from the Supreme Court but not from public life. All three remain actively involved and visible in various ways, although they have left behind the steady review of Supreme Court petitions, the weekly conferences among the Justices, and the grind of work in Washington, D.C.
The three remain active in different ways. Souter sits regularly on the U.S. Court of Appeals for the First Circuit in Boston. Stevens is a frequent speaker at legal and judicial conferences. O’Connor is actively involved in promoting civic literacy among young people.
Since the death of Justice Antonin Scalia on February 13, as the Court operates with only eight Justices, there has been more interest in the whereabouts and activities of the three retirees. Before March 16, when President Barack Obama nominated Judge Merrick Garland to fill the vacancy, there were even calls in a few quarters for O’Connor to return to hold the seat until the next president fills the vacancy with a long-term appointment. However, the Republican senators refusing to act on Garland’s nomination were no more likely to move O’Connor’s nomination.
What are the three retired Justices doing with their free time?
In the ABA Journal, Mark Walsh analyzes the Court’s recent decision in Luis v. United States, in which the Court held that the pretrial freeze of a criminal defendant’s untainted assets violates the Sixth Amendment right to counsel of choice. Commentary on the ruling comes from Dan Himmelfarb and Travis Crum, who in The National Law Journal (via the Mayer Brown website) suggest that the Court’s opinion “leaves a number of questions unanswered.” Continue reading »
The petition of the day is:
Issue: Whether a foreign official’s common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiff’s allegations that those official acts violated jus cogens norms of international law.
More commentary on Monday’s opinion in Foster v. Chatman, holding by a vote of seven to one that the Supreme Court of Georgia’s decision that the defendant failed to show purposeful race discrimination in the selection of his jury was clearly erroneous, comes from Anna Roberts at Casetext and Alan Williams at NCADP Blog. And Max Blau of Atlanta Magazine profiles Stephen Bright, the lawyer who argued on Timothy Foster’s behalf. Commentary on Monday’s decision in Green v. Brennan – in which the Court held that, in cases involving allegations of constructive discharge, the forty-five-day period for federal employees to contact the Equal Employment Opportunity Commission begins to run when the employee resigns – comes from R. Scott Oswald at The Employment Law Group. Continue reading »
The petition of the day is:
Issue: (1) Whether the California Court of Appeal erred by holding, in direct conflict with DirectTV v. Imburgia, that the parties’ agreement to apply the Federal Arbitration Act (“FAA”) to govern their arbitration contract was unenforceable because the FAA’s transportation worker exemption applied; and (2) whether the California Court of Appeal erred by holding, in direct conflict with the Second, Eighth, and Eleventh Circuits, that an employee was exempt from the FAA as a “transportation worker” even though he was not employed in the transportation industry.