March cases

In the last two weeks of March, the Court will hear an extremely important case involving First Amendment claims in the abortion context, another gerrymandering case, and other cases.

Tuesday, March 20

[Monday’s cases involve technical issues of limited interest or accessibility for the casual observer.]

Abortion is before the Court today, and this always draws a large line for the arguments and a spirited set of crowds out front.  National Institute of Family and Life Advocates v. Becerra involves the California Reproductive FACT Act, which, briefly, requires licensed medical clinics to post information regarding free and low-cost abortion services available through the state and requires pregnancy counseling services that are not licensed medical centers to state in all advertising that they are not healthcare providers. The clinics claim this is a form of compelled speech that violates the First Amendment. California asserts that this falls within the scope of constitutionally permissible regulation of professional services, and is needed to inform women of available services and to prevent women from being confused as to the nature of the “clinic.”

Interestingly, in a number of states, the mandated speech goes the other way, requiring abortion clinics to post information designed to dissuade women from choosing to abort. There’s an interesting article in Slate exploring the problems that could arise for such laws if the clinics were to win this case.  Scotusblog also offers a symposium of competing views.  And, of course, there are a huge number of amici briefs.

The Solicitor General submitted an amicus brief supporting neither side.  It then sought (and was granted) leave to participate in oral arguments, and both sides agreed to give up 5 minutes each.  Very unusual!

The case is scheduled for the usual hour, but it is the only case on the docket today and will probably run a little long. Lines will form early–probably days early… But there will also be protests and press conferences happening out front, which are interesting to observe or join.

Wednesday, March 21

Upper Skagit Indian Tribe v. Lundgren is a technical issue of state court jurisdiction and tribal sovereignty.  Briefly, both the Lundgrens and the tribe assert ownership over a strip of land.  The Lundgrens brought suit to “quiet title” (have a court decide who has ownership) and the tribe asserted the state court had no jurisdiction over the dispute.

These arguments will be difficult to follow, but it is worth reading up on the case and attending if these issues interest you. A key concept is “in rem” jurisdiction — not jurisdiction over the party, but over a thing (in this case, not the tribe but a piece of land).  Start with the overview here, then read the Washington Supreme Court decision, and then select some briefs to read as well.

Wednesday, March 28

[Monday’s and Tuesday’s cases are not recommended.  However, Tuesday’s cases involve sentencing guidelines (Hughes and Koons); specific and technical issues regarding them, but still may be of interest to some.]

Partisan gerrymandering is once again before the court this morning.  Benisek v. Lamone has been before the Supreme Court before; in 2015, the plaintiff won the right to a 3-judge panel, and now, the decision of that panel is up for review. The case involves the Maryland 6th, which had been a “safe” Republican seat until redistricting rendered it a “likely” Democratic seat.  (Oyez overview; Common Cause fact sheet.) In addition to the links above, read at least a couple of the many briefs filed in the case before attending.

Feb 29 – March 2 cases

One of the most anticipated arguments of the term–involving abortion rights–is scheduled for Wednesday.   The Court also takes up gun control for persons convicted of domestic violence and the death penalty on Monday.

Monday, February 29

The first case will be viewed as a gun control issue in the context of domestic violence, but involves questions of Congressional intent where a federal law is triggered by a state law conviction.  Federal law prohibits firearm possession by someone who has been previously convicted of a crime of domestic violence.  Such a criminal act generally evokes intentional conduct, but 34 states have reckless assault laws.  The question is whether Congress intended for the federal prohibition to extend to convictions for laws that required only reckless conduct. Full write-up of all the issues in Voisine v. US is here.

The second argument is in a death penalty case.  The official question presented in Williams v. Pennsylvania describes the case well:  Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Tuesday, March 1

The cases today are important but fairly limited in scope.  Nichols v. US asks whether federal law requires a sex offender to update his registration in the state where he was convicted when he resides outside the US.  Husky International Electronics v. Ritz involves the “actual fraud” bar to discharging debts in bankruptcy.

Wednesday, March 2 – abortion

It has been eight years since the Supreme Court has directly taken on questions relating to laws that restrict access to abortion.  States may regulate abortion providers, just as they may regulate other medical practices, but laws that place an “undue burden” on a woman’s ability to access abortion are unconstitutional.  Regulations that improve safely and health typically survive the “undue burden” test, but in this case, providers argue that the restrictions Texas put into place do not actually enhance health and safety, despite the state’s claimed purposes.  The Court has accepted cert on the question of whether the Fifth Circuit erred by “refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health.”  Linda Greenhouse has co-authored a useful overview of this case and the history of the Court’s approaches to abortion rights and restrictions.

This case will draw a huge crowd.  It will be worth going to the Court just to see (or be part of) the crowds, demonstrations, and press conferences.  Demonstrations will start around 8:00am, may calm down a bit during the 10:00 argument and as people come and go, and then there will be more renewed demonstrations and press conferences when the arguing counsel exit the Court, probably around 11:30. If you want to get into the courtroom, you’ll need to get there very early; I wouldn’t be surprised if enough people camp out overnight to fill the court.  More than 80 amicus briefs have been filed, and the Solicitor General has been granted permission to participate in oral argument (in addition to counsel for the clinic and for Texas, the parties to this case).  I don’t see an order extending time for the argument, but no other case is scheduled for this day and I would expect the argument to run a little past the usual hour.