Plain English / Cases Made Simple

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This post — which is an updated version of posts that we have published in earlier Terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs.  If you have a question that you don’t see answered here, please feel free to ask it during tomorrow’s live blog.

ORDERS

Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the Court took at its most recent Conference, which are reflected in a document (“the order list”) that the Court releases to the public.  The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert.,” short for “certiorari”), but the Court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits. We do not expect orders tomorrow, only opinions.

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On Monday morning, the Justices issued five decisions in argued cases. This leaves the Court with eight cases to decide between now and the end of June. The Justices will take the bench tomorrow at ten o’clock to rule on one or more of these eight cases, which are summarized below the jump.

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Next week, the blog will publish a series of articles — a symposium — on the major immigration case now under review by the Supreme Court: United States v. Texas.  The Justices will hold a hearing on the case in late April.  This post provides a basic explanation of that case in non-legal terms.

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Like every other independent nation, America has the right to decide who comes into the country, to stay or just to visit.  But because the borders are not tightly sealed, many foreign nationals enter without official permission and remain.  Once here, many of them live in what President Barack Obama has called “a shadow world,” constantly in fear of being deported and so unable to live normal lives.  There are now more than eleven million of these illegal immigrants.

What to do about them as a matter of national policy is a problem stalled in deep disagreement.  The Senate has passed a broad reform bill that the president would have signed, but that measure died in the House of Representatives.  Twice — once in June 2012, and again in November 2014 — the president and his aides used what they believe were existing powers of the executive branch to draft programs that would postpone deportation of many of these immigrants, allowing them to remain at least for a few years, to get jobs, and to qualify for some public benefits.  Both programs are highly controversial, and the entire issue of immigration control is at the center of this year’s presidential election campaign.

The 2012 program has been in operation, and ultimately may clear the way for some 1.2 million younger immigrants to remain.  The 2014 program — potentially affecting more than four million immigrants — has never gone into effect, because twenty-six states, led by Texas, sued the federal government in a federal trial court in Brownsville, Texas, and the 2014 program and some changes in the 2012 program have been blocked since last February.  That is the case, now usually called United States v. Texas (although twenty-five other states are also involved), that the Supreme Court agreed on January 19 to review.

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In the summer of 2014, efforts to pass new laws to overhaul the country’s immigration system seemed to be on a slow road to nowhere.  In remarks at the White House on June 30 , President Barack Obama announced that then-House Speaker John Boehner had told him that Republicans would “block a vote on immigration reform at least for the remainder of this year.”  Arguing that “Americans can’t wait forever” for Republicans to act on immigration, Obama indicated that he planned to go it alone.

And he did.  In November of that year, Obama announced a new policy that would allow undocumented immigrants who can meet two criteria – they have children who are U.S. citizens or lawful permanent residents (also known as “Green Card holders”) and they have been in the United States at least since January 2010 – to apply for a program that would allow them to stay in the country for three years and work here legally.

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For nearly forty years, it has been settled that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for other costs that the union incurs – for example, for collective bargaining. After over an hour of oral arguments today, public-employee unions are likely very nervous, as the Court’s more conservative Justices appeared ready to overrule the Court’s 1977 decision in Abood v. Detroit Board of Education and strike down the fees. Let’s talk about Friedrichs v. California Teachers Association in Plain English.

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Next Monday, the Justices will hear oral arguments in a case which asks them to overrule a 1977 decision and hold that public employees who don’t want to join the union that represents them also can’t be required to pay a fee to cover the costs that the union incurs in collective bargaining. It sounds like a relatively mundane question, but the Court’s decision could have a broad impact on the financial health of public-employee unions and possibly even politics more broadly. Let’s talk about Friedrichs v. California Teachers Association in Plain English.

To understand the case, you have to start with the current law on public-employee contributions to unions. It is settled that public employees who are not members of the union cannot be required to pay fees that a union would use for political activity like union organizing. But the Supreme Court held in the 1977 case, Abood v. Detroit Board of Education, that they can be required to pay a “fair share” or “agency” fee to cover the union’s costs to negotiate a contract that covers all the public employees, even those who are not union members. The question now is whether to hold that requiring an objecting employee to pay even this more limited fee violates the First Amendment.

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In recent years, the Supreme Court has mostly stayed out of the decades-long battle over abortion rights. But today the Justices stepped back into the abortion wars in a big way. They announced this afternoon that they would review a challenge to a Texas law that, abortion rights supporters say, would close seventy-five percent of the clinics in Texas. Texas officials counter that the law is intended to protect women’s health, and that women will still be able to obtain abortions, even if they may have to drive a little further to do so. Let’s talk about today’s grant in Whole Woman’s Health v. Cole in Plain English.

Nearly a quarter-century ago, the Supreme Court issued its decision in Planned Parenthood v. Casey, a challenge to the constitutionality of Pennsylvania’s efforts to restrict abortions by, for example, requiring a married woman to notify her husband that she intended to have an abortion and requiring women under the age of eighteen to first obtain consent from at least one parent. A divided Court reaffirmed that the heart of its 1973 decision in Roe v. Wade, holding that a woman has a right to terminate her pregnancy in its early stages, was still good law. But it also ruled that states can impose restrictions on that right as long as the restrictions do not impose an “undue burden” on the mother: a law will be struck down if it creates, or is intended to create, a “substantial obstacle” to seeking an abortion before the fetus is able to survive outside the womb. Since then, though, the Court has said very little else about exactly what that “undue burden” standard means. Continue reading »

Editor’s note: This post examines two cases the Supreme Court will review at its next Term:  Evenwel v. Abbottand Harris v. Arizona Independent Redistricting CommissionThis post will be followed this week by a symposium on Evenwel.

In a rare meeting with reporters in early July 1968, Chief Justice Earl Warren answered readily when asked which of the Court’s decisions in his momentous years on the Supreme Court were most important.  The series of rulings, he said, that created the constitutional idea of “one person, one vote.”  That is a basic theory of democratic representation: no individual’s vote may be weighted more heavily than any other’s.  Election districts, for Congress and state legislatures, must be drawn as close to equal in population as can practically be done.

The clearest expression of that idea came in the 1964 decision in Reynolds v. Sims.  Now, a half-century later, the Court has assigned itself the task of deciding — remarkably, for the first time — how to get to that goal.  What, it will answer in one case, population measure should be used: total people in a district, total citizens, total citizens of voting age, total numbers of registered voters?  And, in a second case, the Court will answer whether it violates the equality principle if districts are drawn in a way that favors one party’s candidates.

Both cases involve cross-currents of political theory, and both have the potential to directly change election outcomes and the election fortunes of the two major political parties.  There is considerable complexity here, so let’s try to make this simple.

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Commentary

Amid widening claims that religious liberty in America is under siege, the Supreme Court over the past year and and a half has reacted eight times to one of the most intense and emotionally charged conflicts within that broader controversy.  Only once has the Justices’ reaction to that particular conflict led to a full-scale decision, and yet all of its actions, taken together, do stand for something.

This is the controversy over the contraceptive, or birth-control, mandate in the Affordable Care Act – a high-stakes legal feud that has been unfolding in scores of lawsuits across the country.  It has been running for five years, and so is further along than the just-beginning conflict over the impact on religious belief of the Court’s same-sex marriage ruling last month.

The opposite sides in the birth-control dispute for years have been talking past each other about what the Supreme Court has done about that so far, and what it means, and both sides continue to try to persuade the Court to see the controversy their way.

There is a lot involved, but let’s try to make it simple.

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Fifteen years ago, Arizona voters took a drastic step to deal with partisanship in drawing the lines for federal congressional districts: they passed an amendment to the state constitution that transferred the redistricting power from the state legislature, which had previously controlled it, to an independent commission. Perhaps it comes as no surprise that the legislature objected to being cut out of the process and filed a lawsuit, which went all the way to the U.S. Supreme Court. The legislature alleged that tasking the commission with redistricting violates the U.S. Constitution’s Elections Clause, which provides that the “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof” – because the phrase “the Legislature” can only refer to the official body that makes laws for the state.

Yesterday the Supreme Court rejected the legislature’s argument, in a decision that will be welcomed by many not only in Arizona, where the independent redistricting commission can continue to operate, but also in other states (including California) that also use commissions for redistricting. Let’s talk about the ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English. Continue reading »

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