This week at the court

By on Jan 21, 2018 at 12:00 pm

On Monday the Supreme Court released additional orders from the January 19 conference on Monday. The justices granted Weyerhaeuser Company v. United States Fish and Wildlife Company. On Monday the Supreme Court also released its opinions in National Association of Manufacturers v. Department of DefenseArtis v. District of Columbia and District of Columbia v. Wesby. The justices will meet next for their February 16 conference. The calendar for the February sitting, which begins on February 20, is available on the Supreme Court’s website.

 
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Petition of the day

By on Jan 19, 2018 at 6:00 pm

The petition of the day is:

17-935

Issue: Whether the undue burden test established in Whole Woman’s Health v. Hellerstedt and Planned Parenthood of Southeastern Pennsylvania v. Casey entitles a court to preliminarily enjoin a state abortion law—which mandates a “contracted physician” with hospital admitting privileges that effectively bans medication abortion, offers no discernible medical benefit, and leaves only one remaining abortion provider hundreds of miles away from significant population centers—without making a concrete estimate of the number of women who would be prevented or postponed in having an abortion.

The Supreme Court will hear oral argument on the challenge to President Donald Trump’s September 24 order, the latest version of what is often known as his “travel ban,” which limited travel from eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. The announcement, which came in a brief order today, had been widely expected since last month’s ruling in the case by the U.S. Court of Appeals for the 9th Circuit, which upheld a federal district court decision blocking the government from implementing the September 24 proclamation.

Today’s order marks the second time that the justices have agreed to weigh in on challenges to the travel ban. In June 2017, they granted the government’s request to review two challenges to an earlier version of the ban, announced in a March 6 executive order. Oral argument was scheduled for early October, and the court permitted the government to implement the ban –at least for would-be travelers who didn’t already have some connection to the United States – until it could rule on the dispute. But that case disappeared from the court’s argument calendar in late September after Trump issued the current version of the order.

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Oyez has posted 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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Friday round-up

By on Jan 19, 2018 at 7:16 am

Last night the Trump administration asked the Supreme Court to take the highly unusual step of agreeing to review a lower-court decision preventing the federal government from dismantling the Deferred Action for Childhood Arrivals program, known as DACA, even though the appeals court has not yet ruled on the case. Amy Howe covers the government’s request for this blog; her coverage first appeared at Howe on the Court. Additional coverage comes from Ariane de Vogue at CNN, Robert Barnes at The Washington Post, and Pete Williams at NBC News, who reports that “[t]he Supreme Court has granted similar requests only about a dozen times in the past century, most often involving national emergencies.”

Yesterday evening the Supreme Court, at the request of North Carolina Republicans, agreed to put a hold on a lower-court order to redraw the state’s congressional districts, which the lower court had invalidated as an unconstitutional partisan gerrymander. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. For The New York Times, Adam Liptak and Alan Blinder report that the Supreme Court’s order makes it “likely that the midterm elections this year will be conducted using districts favorable to Republican candidates.” Additional coverage comes from Gary Robertson at the Associated Press, Ariane de Vogue at CNN, Andrew Chung at Reuters, Greg Stohr at Bloomberg, Josh Gerstein at Politico, and Robert Barnes for The Washington Post, who reports that “[t]he decision was not unexpected, because the Supreme Court generally is reluctant to require the drawing of new districts before it has had a chance to review a lower court’s ruling that such an action is warranted, especially in an election year.” At the Election Law Blog, Rick Hasen observes that “it will take a few months before the Court decides whether to hear the case, and that means either a remand after the other partisan gerrymandering cases are decided this term or setting the case for argument (almost certainly next term).”

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Posted in Round-up
 
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In June 2012, President Barack Obama signed a policy known as “Deferred Action for Childhood Arrivals” (popularly known as DACA), a program that allows undocumented immigrants who came to the United States as children to apply for protection from deportation. Today the federal government went to the Supreme Court, asking it to intervene immediately in a legal dispute over whether the Trump administration can end DACA – and to rule on the dispute before the court’s summer recess.

The clash now at the court arose last fall, when the Trump administration announced that it would terminate DACA, which would result in some of the 800,000 young adults who qualified for the program becoming eligible to be deported. On January 9, a federal trial judge in San Francisco barred the government from ending the program anywhere in the United States.

On January 16, the Department of Justice announced that it had appealed the judge’s ruling to the U.S. Court of Appeals for the 9th Circuit. In a press release, U.S. attorney general Jeff Sessions declared that the government would also take what he described as the “rare step” of going directly to the Supreme Court – a procedure known as “certiorari before judgment.”

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Last week a three-judge federal court in North Carolina struck down the state’s federal congressional map, ruling that Republicans had drawn the map to give themselves an advantage over Democrats – specifically, the court stressed, to guarantee Republicans’ “domination of the state’s congressional delegation.” The court ordered the state legislature to come up with a new plan by January 24, but tonight the Supreme Court put that order on hold, to give the state’s Republicans time to appeal.

In a request filed last week, the state’s Republicans complained that the three-judge district court had used “an entirely novel legal theory to hopelessly disrupt North Carolina’s upcoming congressional elections.” They told the justices that there “is no reason to treat this case differently from” Gill v. Whitford, the Wisconsin partisan-gerrymandering case in which the court blocked an order requiring that state to draw new maps.

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Petition of the day

By on Jan 18, 2018 at 6:00 pm

The petition of the day is:

17-913

Issue: Whether the 14th Amendment gives adoptive parents the same right as biological parents to direct the upbringing of their children.

 
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Encino Motorcars v Navarro was up for a repeat performance yesterday, as the justices heard argument for the second time on the question whether the Fair Labor Standards Act protects the service advisors who greet you when you take your car to a dealership for service. The last time they heard the case, almost two years ago, the justices decided that the 2011 Department of Labor regulation bringing those advisors under the FLSA was invalid – criticizing the department for an utter failure to explain its decision to depart from a longstanding status quo under which the advisors were not entitled to FLSA protections.

The 2016 opinion did not, however, offer any guidance on the ultimate question of coverage, which is back before the justices again this week. Because the justices decided last time that the department’s regulation is irrelevant, all of the discussion yesterday focused on the language of the statute, which exempts “any salesman, partsman, or mechanic” who is “primarily engaged in selling or servicing automobiles.”

James A. Feldman for respondents (Art Lien)

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In its conference of January 19, 2018, the court will consider petitions involving issues such as whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled; whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

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