This week we highlight petitions pending before the Supreme Court that address, among other things, whether the First Amendment invalidates a longstanding state constitutional provision limiting judges affiliated with any one political party to no more than a “bare majority” on the state’s highest courts and whether the Virgin Islands Supreme Court is bound by the Supreme Court’s equal-protection decisions when Congress explicitly applied the equal protection clause to the territory via a federal statute.

The petitions of the week are below the jump: Continue reading »

This week on SCOTUStalk, Amy Howe sits down with Kevin Russell to discuss the oral arguments in the LGBT employment discrimination cases heard by the court last week. The pair talk about Pam Karlan’s opening argument in Bostock v. Clayton County, the two-minute rule, Justice Kagan’s interpretation of “because of sex” and Justice Gorsuch’s concern about the “massive social upheaval that would be entailed” by deciding that sex discrimination under Title VII covers transgender people. Kevin Russell is a partner at Goldstein & Russell and has argued 12 cases before the Supreme Court.

Disclosure: Goldstein & Russell, P.C., is counsel on an amicus brief in support of respondent Stephens in Harris Funeral Homes v EEOC.

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Yesterday the justices heard argument in Mathena v. Malvo, in which convicted D.C.-area sniper Lee Boyd Malvo is asking the court to overturn his sentence of life without parole for murders committed in Virginia in 2002, when Malvo was 17. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. At Fox News, Barnini Chakraborty and Bill Mears report that the court grappled with “whether Malvo, now 34, should be resentenced in Virginia in light of a pair of recent Supreme Court rulings restricting life-without-parole sentences for crimes committed by juveniles.” Ariane de Vogue reports at CNN that “the justices struggled for more than an hour discussing the impact of their own prior cases as well as the details concerning Virginia’s sentencing scheme.” Audio coverage of the argument comes from Nina Totenberg at NPR. At Quartz, Ephrat Livni argues that “[a] win for Malvo … would bring the harshly punitive American approach a little closer to being in line with the rest of the globe.” At Crime & Consequences, Kent Scheidegger offers his “initial impressions” of the oral argument, and concludes that “[w]ith this many splits among the Justices, there is no predicting the outcome.” Additional commentary on the argument comes from Mark Joseph Stern at Slate (via How Appealing).

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It has been 17 years since John Allen Muhammad and Lee Boyd Malvo, known as the “D.C. snipers,” shot and killed 12 people and injured six more. The Washington, D.C., area was paralyzed with fear until the then-42-year-old Muhammad and Malvo, who was then 17, were arrested at a Maryland rest stop. Muhammad was sentenced to death and executed in 2009, and Malvo was sentenced to life in prison without the possibility of parole. This afternoon the Supreme Court heard oral argument in Malvo’s challenge to that sentence. After an hour of oral argument, it seemed possible that Malvo’s case might not be over yet, with Justice Brett Kavanaugh potentially the pivotal vote.

Toby J. Heytens, Virginia Solicitor General, arguing for petitioner (Art Lien)

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As much as it is discussed and debated, especially lately, there is remarkably little case law concerning “executive privilege”—the idea that there are at least some internal executive branch communications that are shielded against compelled disclosure. The Supreme Court has decided exactly one case involving the privilege, and even that decision—in the Watergate tapes case, United States v. Nixon—raised as many questions as it answered. One reason courts have historically had so little to say about the privilege is because, as the Congressional Research Service explained in 2014, “[t]he vast majority of these disputes are resolved through political negotiation and accommodation.” Most privilege claims arise in disputes between Congress and the executive branch, and most of the time, the involved parties are able to reach some kind of compromise—or the relevant administration and/or Congress ends—before the dispute is conclusively settled by the courts. That’s why the most voluminous discussions of executive privilege have come in memoranda by the Justice Department’s Office of Legal Counsel—rather than judicial decisions.

But “political negotiation and accommodation” have not exactly characterized the relationship between the Trump administration and the House of Representatives over the past nine months. As a growing list of witnesses have refused to appear before Congress or turn over requested documents, the House has issued a steadily increasing number of subpoenas, which has in turn provoked litigation over the scope of Congress’ subpoena power and, in some circumstances, whether and to what extent executive privilege provides a defense even against duly issued subpoenas. Last Friday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided the first of these disputes, holding that President Donald Trump could not block one of his accounting firms from complying with a subpoena for financial records in the firm’s possession because the subpoena was within Congress’ authority to issue. And that ruling came on the heels of an eye-opening letter sent last Tuesday by White House Counsel Pat Cipollone to House Speaker Nancy Pelosi and three House committee chairs, suggesting that the White House will not comply with any information requests related to a potential impeachment inquiry.

For now, at least, these disputes are pitched at a categorical level. If and when courts reach specific claims of executive privilege, they’ll find some clarity, but also a series of open questions, in the relevant case law. The following post tries to clarify what’s been settled and what hasn’t.

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Today is a three-argument day at the Supreme Court. First up is Kansas v. Garcia, which asks whether federal immigration law preempts a state prosecution for identity theft based on using someone else’s Social Security number to obtain employment. Pratheepan Gulasekaram previewed the case for this blog. Lachanda Reid and Gabriela Markolovic have a preview at Cornell Law School’s Legal Information Institute. This morning’s second argument is in Rotkiske v. Klemm, which asks whether the one-year statute of limitations in the Fair Debt Collection Practices Act is paused until the plaintiff discovers the basis for his lawsuit. This blog’s preview came from Danielle D’Onfro. Emma Horne and Nicole Jaeckel have a preview for Cornell.

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The Supreme Court heard oral argument this morning in a dispute over the validity of appointments to a board created by Congress to bring financial stability back to Puerto Rico. With billions of dollars potentially at stake, the courtroom was packed with spectators, many of whom had flown in from Puerto Rico. And although the justices had been asked to resolve questions involving the interpretation of the Constitution and the applicability of an ancient remedy known as the “de facto officer” doctrine, the outcome of the case could hinge on a relatively simple question – whether, as seemed likely, a majority of the justices believe that the board’s duties are primarily local in nature.

Donald B. Verrilli, Jr. arguing for Financial Oversight and Management Board for Puerto Rico (Art Lien)

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This morning the Supreme Court issued orders from last week’s private conference. The justices did not add any new cases to their docket for this term.

The justices did not act on one of the most closely watched petitions for review that they considered last week, involving a challenge to the constitutionality of an Indiana law that requires a pregnant woman to have an ultrasound at least 18 hours before obtaining an abortion. The justices will consider that case, Box v. Planned Parenthood of Indiana and Kentucky, again at their conference on Friday, October 18.

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This morning the Supreme Court will hear 80 minutes of argument in five cases consolidated under Financial Oversight Board for Puerto Rico v. Aurelius Investment, LLC, which ask whether the members of Puerto Rico’s Financial Oversight and Management Board were appointed in violation of the Constitution’s appointments clause, and, if so, whether the board’s decisions should be invalidated. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Brandon A. Slotkin and Prachee Sawantor preview the case for Cornell Law School’s Legal Information Institute. The editorial board of The Wall Street Journal (subscription required) argues that “the Justices shouldn’t stop the board from exercising powers granted by Congress under the Constitution.”

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On Tuesday, the justices released orders from their October 11 conference and heard oral argument in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC.

On Wednesday, the court heard oral argument in Kansas v. Garcia, Rotkiske v. Klemm and Mathena v. Malvo.

On Friday, the justices met for their October 18 conference and released orders adding four cases to their merits docket. Additional orders from the conference are expected at 9:30 a.m. on Monday.