Note: This post has been updated to include a discussion of what conclusions can (and cannot) be drawn about the justices’ votes on the government’s request.

The Trump administration won a major (if, at least for now, only temporary) victory on immigration today at the Supreme Court. The justices gave the government the go-ahead to enforce a new rule that would bar most immigrants from applying for asylum if they pass through another country – such as Mexico – without seeking asylum there before arriving in the United States. The U.S. Court of Appeals for the 9th Circuit had blocked the government from implementing the new rule in Arizona and California, but now the government can enforce it nationwide while it appeals a decision by a federal judge in California to the 9th Circuit and, if necessary, the Supreme Court. Tonight’s order drew a dissent from Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg); there were no other recorded dissents.

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Dayna Zolle is Appellate Counsel and Brianne Gorod is Chief Counsel at the Constitutional Accountability Center.

Earlier this year, President Donald Trump made news when he suggested, repeatedly, that he views the Supreme Court as an ally, one he can count on to give him a “fair shake” when he thinks that other courts won’t. To the extent Trump thought that he could count on the court’s very conservative majority to always rule in his favor, last term’s decision in the census case should have given him pause.

Another big test of the president’s apparent belief that he has the Supreme Court in his back pocket is right around the corner: This term the court will hear challenges to the administration’s termination of the Deferred Action for Childhood Arrivals program, known as DACA. The president may ultimately be disappointed by the result in these cases — because if the Supreme Court follows the law and well established precedent, it will conclude, like the lower courts that considered these cases, that the administration’s decision to terminate the program was unlawful.

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This is going to be a big year at the Supreme Court, likely with more fireworks than the last few. Since Justice Antonin Scalia passed away during the 2015 Supreme Court term, the court has been in an adjustment period. There was the long stint without a ninth justice. Justice Neil Gorsuch was finally confirmed at the tail end of the 2016 term. At the end of Gorsuch’s first full term in 2017, Justice Anthony Kennedy announced his retirement. This past term was Justice Brett Kavanaugh’s first term on the court.

Justices are often prone to agreement with other justices during their first term on the court, leading to a high frequency in the majority (Kavanaugh had the highest frequency in the majority of the justices last term at 88 percent), and they begin to develop their own pattern of voting in subsequent terms. The consensual norm in a justice’s first year is known as the “freshman effect.” Research from Professor Lee Epstein and others has shown how justices’ preferences change over time.

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Josh Blackman is associate professor of law at South Texas College of Law Houston and an adjunct scholar at the Cato Institute. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. They filed a brief on behalf of Cato and Professor Jeremy Rabkin “in support of DACA as a matter of policy but [the government] as a matter of law.”

We recently filed an amicus brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. “Is that a thing?” they tweeted. Yes, it is a thing. And the court would be well served to receive more briefs that expressly acknowledge the distinction between law and policy. Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances.

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Wednesday round-up

By on Sep 11, 2019 at 7:02 am


  • Jess Bravin reports for The Wall Street Journal that, at a judicial conference yesterday, “Justice Sonia Sotomayor said that despite sharp ideological differences with Justices Neil Gorsuch and Brett Kavanaugh, and the controversy that marred the latter’s confirmation, she was working to build relationships with the Trump appointees that could moderate the Supreme Court’s shift to the right.”
  • At Empirical SCOTUS, Adam Feldman analyzes the Supreme Court’s docket for what is “going to be a big year in front of the Supreme Court[, l ]ikely with more fireworks than the last few.”
  • At Inside Sources, Christian Mammen writes that Justice Neil Gorsuch’s new book “illustrates Gorsuch’s scholarly depth, forcefully arguing for a version of originalism and textualism that distinguishes him from his predecessors and shows the independence of his thinking.” Continue reading »
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In 2012, the Obama administration established a program known as Deferred Action for Childhood Arrivals (DACA), which allows undocumented young adults who came to the United States as children to apply for protection from deportation. Applicants who meet a variety of criteria – for example, who have graduated from high school or served in the military and do not have a serious criminal record – must pay a fee of nearly $500 in total, submit (among other things) their fingerprints and home address and undergo a background check. In the past seven years, nearly 800,000 people have obtained protection from deportation under DACA, which permits them to work legally in this country and gives them access to other benefits like health insurance and driver’s licenses. In 2017, the Trump administration announced that it would end the DACA program; in November, the Supreme Court will hear oral argument in a challenge to that decision.

The justices will consider three consolidated cases – filed in California, the District of Columbia and New York. The challengers in all three cases argued that the termination of the program violated the Administrative Procedure Act, which is the federal law governing administrative agencies, as well as the rights of DACA recipients, and the lower courts ordered the government to keep DACA in place.

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Join the American Enterprise Institute and George Mason University’s C. Boyden Gray Center for the Study of the Administrative State for a panel entitled “The Administrative State Goes to Court: Previewing a Year of Regulatory Litigation in the Supreme Court and Circuits.” The event will be held at AEI’s headquarters in Washington, D.C., from 9:15-10:45 a.m. ET on Thursday, September 12. Featuring:

  • Ellen Gilmer, Bloomberg Environment
  • Amit Narang, Public Citizen
  • Chris Walker, Moritz College of Law, Ohio State University
  • Peter J. Wallison, AEI
  • Adam J. White (moderator), AEI and the Gray Center

Click here for more information and to register, as well as a link to livestream the event.


Tuesday round-up

By on Sep 10, 2019 at 7:13 am

Ipse Dixit (podcast) looks at “how courts have construed Title VII’s prohibition on employment discrimination differently in relation to LGBTQ individuals than other social groups,” focusing on how this may play out in three cases on the Supreme Court’s agenda this term. At Reason, Damon Root notes that, although the “late Justice Antonin Scalia was nobody’s idea of a gay rights activist,” “Scalia’s jurisprudence will be favorably cited and employed by the openly gay petitioner and his lawyers” when the Supreme Court considers “whether anti-gay workplace discrimination is illegal under current federal law” in Bostock v. Clayton County, Georgia. At The World and Everything in It (podcast), Mary Reichard unpacks the arguments on behalf of the employer in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which involves discrimination against transgender people. In an op-ed for the Washington Examiner, Vicki Wilson argues that redefining ‘sex’ to mean ‘gender identity’ creates chaos, not only for employers, but also for girls in our schools and women throughout society.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in this case.]

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On September 24 at 1:00 p.m. ET, the State and Local Legal Center and National Association of Counties will host a webinar with Michael Dreeben, former deputy solicitor general; Joe Palmore, appellate and Supreme Court practice group co-chair and managing partner at Morrison Foerster; and Todd Ruger, legal affairs staff writer at CQ Roll Call, to discuss salient cases for state and local government during the upcoming Supreme Court term on the Second Amendment, DACA, Bridgegate, copyright, school choice, and more. Register for the webinar here.


Loren AliKhan is the Solicitor General for the District of Columbia.

Next month, the Supreme Court will hear argument in three cases asking whether Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. The answer to that question will have a considerable impact on the nation. A recent poll estimates that 4.5 percent of adults in the United States — or about 11.3 million people — are gay, lesbian, bisexual or transgender, so it’s like asking whether the population of the state of Ohio is protected by the federal employment discrimination laws.

Title VII, at base, prevents an employer from discriminating on the basis of a characteristic that has nothing to do with the employee’s job performance. Donald Zarda’s sexual orientation had no bearing on whether he was a good sky-diving instructor, just as Aimee Stephens’ gender has no impact on her embalming technique. Terminating either of them on the basis of prejudice rather than job skills was economically irrational, and it was also illegal. That is because their employers’ decisions were rooted in sex. Mr. Zarda would not have been terminated if he had been a woman who dated men, and Ms. Stevens would not have been terminated for living her life as a woman if her birth certificate identified her as female. Their employers’ actions, therefore, discriminated on the basis of sex, plain and simple.

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