On Tuesday, by a vote that appears to have been six to three, the Court in a per curiam opinion dismissed the writ of certiorari as improvidently granted in UNITE HERE Local 355 v. Mulhall. The dissenting opinion of Justice Breyer, which was joined by Justices Sotomayor and Kagan, provides us with some insight into the Court’s reasoning. It is to be recalled, as Justice Breyer notes, that the issue in the case is whether Section 302 (a) and (b) of the National Labor Relations Act (as amended ) – which prohibits the union from demanding or receiving a thing of value from an employer — is violated when an employer promises during an union organizational campaign to (1) remain “neutral”; (2) provide access for union organizing in the nonpublic areas of the employers’ premises; and (3) provide a list of employees’ names and contact information that the union can use for organizational purposes.
Argument recap: Weighing how carefully airlines must choose their words when reporting safety threats
The Court granted certiorari in Air Wisconsin v. Hoeper to decide whether airlines can be stripped of their statutory immunity from civil suits for reporting safety threats to the Transportation Security Administration if there is no finding that the report was materially false. But with little real division over the answer to that question, Monday’s arguments veered into practical questions about the procedural implications of such a requirement and the meaning of materiality in the context of airline security.
Argument recap: Another immigration case? Another argument about statutory interpretation and agency deference
The specific question presented by the case is whether a provision of the Immigration & Nationality Act, as amended by the Child Status Protection Act (2002), allows children of all family immigrant visa applicants (or only for some family immigrant visas) who turn twenty-one (“age out”) while waiting for a visa, to be issued a visa with their parent when the visas are issued. 8 U.S.C. § 1153(h)(3) provides that, for an “aged out” child, “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The Board of Immigration Appeals has interpreted the statute to cover only certain, rather than all, family immigrant visas.
When Lauren Moskowitz, the attorney for Diana Montoya Alvarez, stood up this morning to argue on behalf of the respondent in the international family law dispute Lozano v. Alvarez, she had reason to feel optimistic: at least seven Justices had expressed misgivings about the arguments just made for roughly thirty minutes by Shawn Regan, the lawyer for petitioner Manuel Lozano. But any confidence that she may have felt was short-lived, as both Moskowitz and then Assistant to the Solicitor General Ann O’Connell (representing the United States, which filed an amicus brief in support of Alvarez) also faced a barrage of questions from all sides. By the end, it was not at all clear how the Court might rule. To their apparent consternation, several Justices appeared unconvinced that there was actually much difference between the two sides’ positions, but at the same time neither position seemed to fully satisfy the Justices. (My preview of the oral argument is here.)
We will be live blogging this morning as opinions are issued at 10:00 a.m. We will begin live blogging at 9:45. Please click this link to be taken to the live blog page.
Yesterday the Court heard oral arguments in Environmental Protection Agency v. EME Homer City Generation and American Lung Association v. EME Homer City Generation, the consolidated challenges to the EPA’s authority to require states to take measures to prevent their air pollution from affecting their downwind neighbors. In his coverage of the argument for this blog, Lyle Denniston reports that the ninety minutes of oral argument appeared to go well for the federal government – a sentiment echoed by Jess Bravin of The Wall Street Journal. In his coverage for Greenwire, Jeremy P. Jacobs suggests that, “[w]ith Justice Samuel Alito recusing himself, the court’s liberal four justices appeared sympathetic to EPA’s arguments, and there appeared to be some division among the four conservatives.”
This morning at 10:00 a.m. we expect one or more opinions in argued cases. We will start the live blog at 9:45.
After issuing opinions, the Justices will hear oral arguments in Lozano v. Alvarez, which Amy Howe previewed for this blog, followed by oral arguments in White v. Woodall, which Jordan Steiker previewed for this blog.
The petition of the day is:
Issue: (1) Whether the civil remedy provision of the Anti-Terrorism Act, 18 U.S.C. § 2333, supports claims against defendants based on theories of secondary liability, and requires plaintiffs to establish that a defendant’s support provided to a terrorist organization was a proximate cause of the plaintiffs’ injury; (2) whether U.S. courts have personal jurisdiction over defendants who, acting abroad, provide material support to a terrorist organization that attacks the territorial United States and the defendant intends to provide support to the organization, knows of the organization’s objective and history of attacking U.S. interests, and can foresee that its material support will be used in attacks on the United States.
Tomorrow at 10 a.m., the Court will wade into the arena of international family law for the third time in less than four years. In Lozano v. Alvarez, the Court will once again interpret the Hague Convention on the Civil Aspects of International Child Abduction, a treaty that addresses international custody disputes.