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– had previously advised the court that the case should still proceed even if the Obama administration’s guidance were withdrawn.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.
In its conference of February 24, 2017, the court will consider petitions involving issues such as whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, or whether it is instead a nonjurisdictional claim-processing rule subject to equitable considerations such as forfeiture, waiver and the unique-circumstances doctrine; whether imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and 14th Amendments; and whether Congress may require organizations engaged in the genuine discussion of policy issues, unconnected to any campaign for office, to report to the Federal Election Commission, and publicly disclose their donors, pursuant to the Bipartisan Campaign Reform Act of 2002.
John Elwood reviews Tuesday’s relists
Welcome back from the longest break from Supreme Court news that you’ll get all term! From this point on, there will be a fairly steady stream of conferences until June arrives and the Justices begin their rigorous schedule of summer teaching duties. And that means a steady stream of drivel about relists.
This week, we won’t be able to live up to even our usual low standards, between the short work week and the demands of actual paying work. But we will pause briefly to highlight some of the more interesting relists on the docket this week. In addition to three returning relists, this week we have a lucky seven new relists. Reed v. Louisiana, 16-656, is a capital case that presents the all-the-marbles issue that many people have been waiting for: whether imposition of the death penalty constitutes cruel and unusual punishment that violates the Eighth and 14th Amendments. Will this be the time the Court finally addresses the constitutionality of the death penalty? Sure – and Chuck Brown will probably hoof in a game-winning field goal too.
Some Supreme Court cases have intricate facts, complex legal arguments, numerous nuances and important implications for future cases. Life Technologies v. Promega isn’t like that. Instead, this case presented the court with a single discrete issue: whether the statutory phrase “all or a substantial portion of the components of a patented invention” in one subsection of the Patent Act (35 U.C.C. § 271(f)(1)) can refer to a single component of a multicomponent invention.
The Supreme Court answered that question unequivocally “no.” In other words, if you’ve read and understood the title of this post (A “substantial portion of the components” means “more than one component”), then congratulations! You’ve mastered almost everything that’s worth remembering about this case.
Well, almost everything. Perhaps there are a few more things worth remembering.
Yesterday’s argument in Kindred Nursing Centers Limited Partnership v. Clark had the justices retracing some pretty familiar terrain, as they considered whether the Federal Arbitration Act pre-empts a decision of a state supreme court holding an arbitration agreement unenforceable based on the lower court’s thinly disguised hostility to pre-dispute arbitration agreements. This particular contract called for arbitration of disputes between Kentucky nursing homes and their residents. Representatives of the residents routinely signed those contracts, relying on broadly written general powers of attorney granted by the residents. The Kentucky court held that the powers of attorney were not broad enough to authorize execution of arbitration agreements, explaining that powers of attorney would need to mention arbitration contracts specifically because arbitration contracts involve a waiver of fundamental constitutional rights (like the right to a jury trial).
Yesterday the court heard oral argument in Kindred Nursing Centers Limited Partnership v. Clark, which asks whether the Federal Arbitration Act pre-empts a Kentucky rule that requires a power of attorney to refer expressly to arbitration agreements before an attorney-in-fact can bind her principal to such an agreement. Tony Mauro reports on the argument in The National Law Journal (registration or subscription required), noting that for a “bench that usually protects arbitration agreements from attack, the U.S. Supreme Court on Wednesday seemed unusually hostile to such arrangements when they are embedded in nursing home contracts.”
The petition of the day is:
Issues: (1) Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that the petitioners are not entitled to judicial review of their statutory, regulatory and constitutional claims, even by habeas corpus, and are “prohibited from invoking the protections of the suspension clause” to challenge their removal; and (2) whether the 3rd Circuit erred in concluding, contrary to every other circuit to address the issue, that persons who have entered the United States may be “assimilated” to the constitutional status of noncitizens arriving at our borders, and thereby denied constitutional rights.