The Trump administration wants the Supreme Court to reinstate a requirement for patients seeking abortions to visit doctor’s offices in order to obtain one of the drugs used in medication-induced abortions — a requirement that opponents say subjects patients to unnecessary risk during the coronavirus pandemic. “Most women take the pills that end a pregnancy in its early stages at home,” the Washington Post’s Robert Barnes reports, “and U.S. District Judge Theodore D. Chuang ruled in July that requiring an in-person visit to obtain the medications during the pandemic was unduly burdensome.” In an emergency filing on Wednesday, the Trump administration asked the justices to overturn Chuang’s nationwide injunction that bars the Food and Drug Administration from enforcing the requirement. Additional coverage of the administration’s request comes from Caroline Kelly of CNN, Jess Bravin of the Wall Street Journal, Pete Williams of NBC News, and Kevin Daley of the Washington Free Beacon. Continue reading »
The federal government is scheduled to proceed Wednesday with the execution of Lezmond Mitchell after the Supreme Court, on Tuesday night, denied two emergency requests from Mitchell to halt the execution. Amy Howe reports for SCOTUSblog (in a story first published at Howe on the Court) that the execution will make Mitchell “the fourth federal inmate executed this year after nearly two decades in which the federal government did not carry out the death penalty.”
Also on Tuesday, the court declined to intervene in a Montana dispute over whether Green Party candidates will be listed on the state’s November ballot, CNN’s Dan Berman and Caroline Kelly report. Montana’s secretary of state had filed an emergency request seeking the court’s intervention, but Justice Elena Kagan (who receives emergency appeals from that area of the country) denied the request without referring it to the full court. Continue reading »
The Supreme Court on Tuesday night declined to block the execution, scheduled for Wednesday, of Lezmond Mitchell, the only Native American on federal death row. The justices, without any noted dissents, denied two emergency requests from Mitchell seeking to postpone the execution. Mitchell had argued that he should be given the opportunity to interview his jurors about potential bias during deliberations and that the government’s planned lethal-injection protocol violates federal law.
If the execution goes forward, Mitchell will be the fourth federal inmate executed this year after nearly two decades in which the federal government did not carry out the death penalty. Three additional federal executions are scheduled before the end of September.
Mitchell, a Navajo man, was convicted and sentenced to death in 2003 for the carjacking and stabbing deaths of Alyce Slim and her nine-year-old granddaughter, who were also members of the Navajo Nation. At Mitchell’s trial, prosecutors told jurors – all but one of whom were white – that, in the Old West, Mitchell “would have been taken out back” and “strung up.” Continue reading »
Briefly:
- At CNN, Dan Berman and Caroline Kelly report on a new emergency request to the Supreme Court from Montana’s secretary of state, who asked the justices on Monday “to intervene in a fight over whether the Green Party can be on the state ballot this fall.”
- The World and Everything In It podcast takes a deep, data-driven dive into Supreme Court statistics in an episode inspired by SCOTUSblog’s end-of-term Stat Pack.
- At the American Constitution Society, Russ Feingold and Keith Harper weigh in on the pending execution of Lezmond Mitchell, who is scheduled to be put to death by the federal government on Wednesday. Mitchell is the only Native American on federal death row, and Feingold and Harper argue that the government’s plan to carry out the execution is the latest example of the government’s infringement on tribal sovereignty — less than two months after the Supreme Court issued a landmark ruling in favor of tribal sovereignty in McGirt v. Oklahoma. Emergency requests from Mitchell seeking to stop the execution are pending before the justices.
- Amaury Reyes-Torres analyzes the court’s most recent abortion case, June Medical Services v. Russo. Reyes-Torres argues that Chief Justice John Roberts’ crucial concurring opinions “might have offered a road map for future cases aiming to dismantle Whole Woman’s Health, or worse, to overrule it.”
We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!
The Supreme Court on Monday expanded the amount of time for oral argument in the constitutional challenge to the Affordable Care Act that the justices will hear this fall. In a brief order, the court granted a request from the House of Representatives to lengthen the Nov. 10 argument. The court allocated 40 minutes to each side, up from the usual 30 minutes per side.
The justices also granted requests from the House and the Trump administration to participate in the argument. On the side defending the health law, a group of blue states — led by California — will have 30 minutes of argument time, and the House will have 10 minutes. On the side challenging the law, a group of red states — led by Texas — will have 20 minutes, and the U.S. solicitor general will have an additional 20 minutes. The red states and the solicitor general’s office opposed the House’s request to expand the total argument time. Continue reading »
After last week’s Democratic National Convention, and with Republicans set to take their turn this week, news coverage of the Supreme Court has focused on the ways the court is — or is not — emerging as an issue in the presidential election. Democrats barely mentioned the court during their four-day convention, even as they discussed issues, such as the future of the Affordable Care Act and the Deferred Action for Childhood Arrivals program, over which the court has ample influence. Sahil Kapur of NBC News reports that some progressive activists saw the failure to highlight the court’s role as “a lost opportunity to rally voters.” Meanwhile, Steve Benen of MSNBC observes that the pending constitutional challenge to the ACA — which the court scheduled for oral argument a week after Election Day — “will help position the issue as a central focus of the presidential race.”
Richard Wolf of USA Today reports that, as the makeup of the Supreme Court hangs in the balance, Democrats are splintered over whether to pursue the most aggressive of structural court reforms. While some liberal activists are calling for Democrats to expand the size of the Supreme Court if the party’s nominee, Joe Biden, wins the election, Biden himself opposes that idea, Wolf writes. And in The Hill newspaper, John Kruzel examines the drastic implications that either candidate winning the presidency will have on the court, though Kruzel notes that, “[d]espite these weighty consequences, polls show that barely more than half of registered voters consider the Supreme Court ‘very important’ in 2020, with slightly more Democrats — 57 percent — than Republicans — 53 percent — agreeing with the sentiment.”
We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!
Steven Green is the Fred H. Paulus professor of law and director of the Center for Religion, Law & Democracy at Willamette University College of Law.
It is rare for two books on the same subject – and written by some of the nation’s leading scholars – to be published not only in the same year but practically in the same month. But that’s what has happened with two new works on the First Amendment’s religion clauses. (Possibly, there is less of a coincidence than meets the eye in that they share the same publisher: Oxford University Press.) Howard Gillman, who co-wrote The Religion Clauses: The Case for Separating Church and State (which is due out Sept. 1), is the chancellor of the University of California, Irvine, a political scientist by training and the author of several well-received books about the Constitution and the Supreme Court. His co-author, Erwin Chemerinsky, is the dean of U.C. Berkeley law school and is a leading expert on constitutional law through his scholarship, advocacy and commentary. And Jack Rakove, who wrote the recently released Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion, is a Pulitzer Prize-winning scholar of American intellectual history. When such outstanding scholars write new books about the history and meaning of the religion clauses, they deserve our attention.
The Religion Clauses and Beyond Belief, Beyond Conscience are very different books. The Religion Clauses is chiefly a critique of the current Supreme Court’s approach to adjudicating church-state conflicts, focusing primarily on case analysis and doctrine. Beyond Belief, Beyond Conscience is chiefly a historical analysis of the rise of the American concept of religious freedom. At the same time, the books share some common elements. The first is their timeliness, with both books filled with a sense of urgency. They both, in different ways, caution that the court’s interpretations of the religion clauses over the last decade or so have gone astray, historically and jurisprudentially. A second shared element is their critique – so well deserved – of the justices’ (mis)use of history in adjudicating church-state conflicts. And finally, both books conclude with pleas for rediscovering the positive values inherent in church-state separation.
The Trump administration said it will ask the Supreme Court to reinstate a death sentence for one of the Boston Marathon bombers, and the administration also filed a cert petition in a case involving President Donald Trump’s practice of blocking people on Twitter. In the Boston bombing case, Attorney General William Barr said the Justice Department plans to ask the Supreme Court to review a ruling from the U.S. Court of Appeals for the 1st Circuit that vacated the death penalty for Dzkokhar Tsarnaev, Michael Balsamo and Alanna Durkin Richer report. Tsarnaev and his brother were convicted of placing homemade bombs near the finish of the 2013 Boston Marathon. In the Twitter case, the Justice Department wants the court to review a ruling from the U.S. Court of Appeals for the 2nd Circuit that said Trump violates the First Amendment when he blocks his critics from following him on the social media platform, the Wall Street Journal’s Jess Bravin reports. For other noteworthy recent petitions, see the Petitions of the Week column from SCOTUSblog’s Andrew Hamm. Continue reading »
This week we highlight cert petitions that ask the Supreme Court to weigh in on a pair of disputes with environmental implications. Massachusetts Lobstermen’s Association v. Ross involves the intersection of two federal statutes and a stretch of the Atlantic Ocean containing three deep-sea canyons and four underwater mountains. The National Marine Sanctuaries Act governs the protection of marine areas, delegating authority to the president but also requiring a specific process for the designation of marine sanctuaries, subject to review by Congress and affected states. In contrast, the Antiquities Act authorizes the president to declare national monuments on land owned or controlled by the federal government, without the same review process. The Massachusetts Lobstermen’s Association sued to challenge a proclamation by President Barack Obama designating 3.2 million acres of the Atlantic Ocean as the Northeast Canyons and Seamounts Marine National Monument. The association argues that the monument exceeds the president’s power under the Antiquities Act and circumvents the National Marine Sanctuaries Act. Though President Donald Trump lifted the prohibition on commercial fishing in the area, the association argues the case is not moot because the monument otherwise remains unaffected.
In Kane County, Utah v. United States and United States v. Kane County, Utah, Kane County and Utah sued the federal government to claim title to the rights-of-way for 15 roads crossing federal land. Two environmental groups, the Southern Utah Wilderness Alliance and The Wilderness Society, sought to intervene in the dispute because of their interest in preventing possible harm to the surrounding area from increased traffic. The petitions ask the Supreme Court to weigh in on whether the environmental groups, under Rule 24 of the Federal Rules of Civil Procedure, have demonstrated a right to intervene in the case.
These and other petitions of the week are below the jump: Continue reading »
The Supreme Court released its November argument calendar, and a new federal death penalty case made its way to the court.
The calendar for the November sitting, which the court released Wednesday, contains two blockbuster cases: Fulton v. City of Philadelphia, a religious freedom lawsuit brought by a Catholic organization that was excluded from a city foster-care program because the organization refuses to work with same-sex couples; and California v. Texas, the latest constitutional challenge to the Affordable Care Act. Both cases will be argued shortly after Election Day. Amy Howe breaks down the full November calendar.
Meanwhile, the only Native American person on federal death row asked the justices to postpone his execution – scheduled for Aug. 26 – so that he can investigate whether the jury’s deliberations at his trial were tainted by racial bias. Howe explains the emergency application from Lezmond Mitchell. Continue reading »
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