We expect orders from the February 24 conference on Monday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m. The court will also hear oral arguments on Monday, Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their March 3 conference; our list of “petitions to watch” for that conference will be available soon.
The petition of the day is:
Issues: (1) Whether the Federal Arbitration Act or the “federal policy favoring arbitration” requires courts to discriminate in favor of arbitration agreements; (2) whether the FAA requires courts to preempt neutral state laws that merely have a disproportionate impact on the enforcement of arbitration agreements; and (3) whether, if the answer to either question above is “yes,” that violates basic principles of federalism.
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.
The court heard argument this week in:
The case in front of Neil Gorsuch presented “an interesting constitutional question,” as he put it.
“Does [due process] require a ‘nexus’ between the United States and a non-resident alien to apply to him extraterritorially a federal criminal statute?” wrote Gorsuch, who is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court. “I recommend denial.”
The case of Martinez-Hidalgo v. United States came before Gorsuch not in his current job as a federal appeals court judge but as one of dozens of cert petitions he analyzed as a Supreme Court law clerk during the October 1993 term.
Gorsuch, 26 years old at the time, was a law clerk serving Justice Anthony Kennedy as well as retired Justice Byron White.
In April 2010, Lester Packingham’s traffic ticket was dismissed, prompting him to take to Facebook to celebrate. He posted that “God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!”
We have no way to know whether any higher powers read Packingham’s Facebook posts. But at least one mortal authority did: a Durham, N.C., police officer who had logged onto Facebook to see whether any registered sex offenders had been using the site. He found the post by Packingham, who had been indicted in 2002 on two counts of statutory rape of a 13-year-old and eventually convicted of taking “indecent liberties of a minor.” Packingham had been sentenced to 10 to 12 months in prison, which the judge suspended, and ordered to register as a sex offender.
Does the Supreme Court, the most trusted branch of the federal government, influence ordinary Americans’ opinions? When the Supreme Court upholds same-sex marriage, Obamacare or controversial immigration restrictions, does it increase public support for these policies? The answers to these questions are vitally important, because they shape the legitimacy of the court and the likelihood that court decisions will meet political resistance.
If Americans take cues from Supreme Court rulings when forming or updating their opinions on policy, this would suggest that initially unpopular policies may gain widespread public acceptance if they come before the court and are upheld. Exerting this kind of influence would enable the court to function as a “Republican schoolmaster” and as a vehicle for social change, as scholars from Robert Dahl in 1957 to Nate Persily in 2013 have suggested. Court decisions are less likely to be resisted by bureaucrats and politicians if those decisions are supported by a majority of the American public. Legal scholars have argued that this in turn could allow for greater judicial independence and for an effective system of checks and balances in American politics.
Yesterday evening, the court asked both sides in Gloucester County School Board v. G.G., a challenge to a Virginia school board’s bathroom policy, to submit letters discussing “how the case should proceed in light of” the Trump administration’s revocation of prior guidance from the federal government that had interpreted a 1975 regulation to require schools to “treat transgender students consistent with their gender identity.” Amy Howe covers the development for this blog. Additional coverage comes from Lawrence Hurley at Reuters, who notes that the administration’s move has “raised the stakes” in the case, and from Lyle Denniston at his eponymous blog, who outlines the “options open to the Court in the wake of the new government policy view.” At his eponymous blog, Ross Runkel predicts that “the Court will remand the case without holding oral arguments,” because the “4th Circuit’s judgment was dependent on a guidance that no longer exists,” and “this hot-button issue probably should be heard by a nine-Justice Court.”
The petition of the day is:
Issue: Whether the existence of a forced choice between what religion and government command is necessary to establish a “substantial burden” under the Religious Freedom Restoration Act.
This evening the Supreme Court asked both sides in Gloucester County School Board v. G.G., a challenge to a Virginia school board’s bathroom policy, to submit letters to the court discussing “how the case should proceed in light of” yesterday’s revocation of the Obama administration’s prior guidance. In that guidance, the federal government had interpreted a 1975 regulation to require schools to “treat transgender students consistent with their gender identity.” The U.S. Court of Appeals for the 4th Circuit had relied heavily on the now-revoked guidance in striking down the school board’s policy, which instead required students to use the bathroom that corresponds with the sex that they were assigned at birth.
Both the school board and G.G. – the plaintiff in the case, who identifies as a boy and wants to be allowed to use the boys’ bathroom – had previously advised the court that the case should still proceed even if the Obama administration’s guidance were withdrawn. Even without the guidance, they contended, the justices could and should decide whether the board’s policy violates Title IX, a federal civil rights law that bars discrimination in education. Today’s request, which appears as an entry in the court’s docket for the case, suggests that the court would like to hear more about that argument and why, in the parties’ view, the case should still go forward even now that the guidance at the heart of the 4th Circuit’s ruling is no longer valid.
The deadline for the board and G.G. to file their letters is 2 p.m. next Wednesday, March 1. The case has been scheduled for oral argument on Tuesday, March 28.
Starting with her first publication, an editorial for her elementary school newspaper in 1946, Justice Ruth Bader Ginsburg has not hesitated to express her views to the world. Today she shared thoughts about her life, the law and the state of the country at an event highlighting her new book, “My Own Words,” a collection of her speeches and writings spanning 70 years. Ginsburg appeared with her contributing authors, Mary Hartnett and Wendy Williams of Georgetown University Law Center. Nina Totenberg of NPR moderated the program, which was reportedly so popular that organizers had to move it to a larger auditorium.