Plain English / Cases Made Simple

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(UPDATED 5:45 pm: The post has been updated to include additional discussion about the significance of the justices’ decision to block the lower court’s order requiring the state to draw new maps by the fall.)

Justice Ruth Bader Ginsburg has suggested that it might be the most important case of the upcoming term. On October 3, the Supreme Court will hear oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, concluding that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. The challengers argue that the redistricting plan would allow Republicans to cement control of the state’s legislature for years to come, even if popular support for the party wanes; the lower court’s decision, they contend, merely corrected “a serious democratic malfunction that would otherwise have gone unremedied.” By contrast, the state of Wisconsin counters that if the lower court’s decision is allowed to stand, it will open the door to “unprecedented intervention in the American political process.”

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In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained “only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the “third-party doctrine” – the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

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Founded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an active and leading partner in the socio-economic development” of the Middle East – a description borne out by its work with the U.S. Agency for International Development, Oxfam, Save the Children and Catholic Relief Services. The Israeli government uses the bank as a conduit to transfer taxes that it collects for the Palestinian Authority, and the United States government has characterized the bank as a “constructive partner” in its efforts to combat money laundering and the financing of terrorism. But on October 11, the Supreme Court will hear oral argument in a case brought by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers – known as “martyrdom” payments. The question before the justices isn’t whether the victims’ allegations are true, but instead whether the bank can be sued in U.S. courts at all.

The victims have brought their lawsuits in U.S. courts under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Judge Henry Friendly once described the ATS, which was enacted as part of the Judiciary Act of 1789, as a “kind of a legal Lohengrin,” after the mythical German knight who arrives in a boat pulled by swans, because “no one seems to know whence it came.”

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In December 2015, the presidential campaign of then-candidate Donald Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.” Trump’s statement continued: “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Fifteen months later, on March 6, 2017, citing national security concerns, President Trump signed an executive order that ordered a freeze on new visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States. Two federal appeals courts blocked the Trump administration from implementing the ban, but on June 26 the Supreme Court stepped in. The justices not only agreed to review the lower courts’ rulings in October, when they return from their summer break, but they also allowed the federal government to put at least part of the ban into effect until they can rule on the federal government’s appeals.

Trump’s March 6 order was not the administration’s first effort to restrict travel to the United States by visitors from predominantly Muslim countries. On January 27, Trump signed an order that barred citizens from seven such countries – Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen – from entering the country and suspended the refugee program. That order led to confusion around the world, with some travelers stranded in airports after they were denied entry to the United States and others prevented from boarding planes overseas. The order also prompted legal challenges, and on February 3 a federal district judge in Seattle temporarily blocked the government from enforcing the order. Six days later, a federal appeals court left that ruling in place.

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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.


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 »

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