April cases — last of 17-18 term

April 25 is the last day of oral argument this term — when they will take up the “Muslim travel ban” (after sentencing guidelines and Congressional redistricting cases earlier in the week).  After that, the Court will sit each Monday until the end of June in order to announce its decisions in cases argued this term, then will go on summer recess until First Monday in October.

Monday, April 23

The morning cases are rather technical and not recommended for the casual observer, but there is an unusual afternoon argument today that may be of interest.  Chavez-Meza v. United States involves the ongoing confusion regarding sentencing guidelines. This time, the issue is how thoroughly the judge must explain a sentencing reduction on the record.  Scotusblog has a useful preview.

Afternoon arguments are rare and it’s hard to predict how difficult it will be to get in.  Arguments begin at 1:00; morning arguments are 10:00-noon, then there’s a lunch break during which the courtroom is cleared.  Often, it’s been enough to get in line by 11:00.

Tuesday, April 24

Redistricting is before the Court yet again this morning — the third time this term alone. Abbott v. Perez involves protracted litigation over claims that Texas violated the Voting Rights Act when it redrew Congressional districts in 2011. The history of the various lawsuits and interim rulings is critical to understanding this case and being able to follow the arguments, so review the overview from Brennan Center and follow at least some of those links for key documents in the case (the links near the bottom, and particularly the NAACP LDEF amicus brief, will be especially helpful).

The case has been scheduled for 70 minutes, which is slightly more time than usual.  There will be 4 arguing counsel (2 on each side) and 35 minutes total for each side.

The second case today,  Animal Science Products v. Hebei Welcome Pharmaceutical Co., is an antitrust case that raises the question of to what extent US courts should defer to foreign courts’ interpretations of foreign law. See the overview here.

Wednesday, April 25 — the “Muslim Travel Ban”

The Court’s last scheduled argument of the term is Trump v. Hawaii — perhaps the most politicized case in years, as well as one that raises some interesting unanswered academic legal questions.  Obviously, a great deal has been said and written about this case, but below I suggest some specific reading that should help you to follow the legal arguments before the Court.

A general overview will obviously help, but I also suggest some more reading on each of the official “questions presented,” as specified in the grant of cert.:

(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;
[This involves the “political question” or “plenary-power” doctrine and the question of whether certain matters are entrusted by the Constitution to the executive branch alone.  See the argument here.]

(2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;
[This question is essentially one of administrative law and statutory interpretation.  The decision below will give a good sense of the argument that the president lacked that authority.]

(3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad;
[This is a difficult and unresolved legal question — just what is the scope of authority of a district court, for a single region and with specific plaintiffs before it, when the issue in the case is one of national policy with unspecified individuals who may be subject to it?  See the discussion here.]

(4) whether the proclamation violates the establishment clause of the Constitution.
[Here, the Court will take up the argument that the order reflects unconstitutional discrimination on the basis of religion. See this amicus brief from a collection of civil rights organizations arguing that the order should be seen as an act of religious discrimination.]

There are also an extraordinary number of amicus briefs filed in this case, and you may wish to see if any are from organizations you would like to hear from.

Expect the arguments to run long.  So far, the Court has not ordered additional time (although it denied the Becket Fund for Religious Liberty’s request to participate in oral arguments), but it is the only case on the docket today.

People will begin lining up to see the arguments very early, and I wouldn’t be surprised if  no one gets in from the public line who wasn’t in line (or paying a line-stander) for at least 24 hours.  Even if that’s not possible for you, there will be much to see and do on the sidewalk in front of the Court — multiple and competing demonstrations before and during arguments, followed by press conferences as soon as the arguing lawyers leave the building.

February cases

In the last two weeks of the month, the Court will hear arguments regarding union agency or “fair share” fees, political t-shirts worn to the voting booth, subpoenas to US companies for information stored on foreign servers, and other important issues.

Tuesday, February 20
(the Court observes Presidents Day on Monday)

Currier v. Virginia is a fairly technical issue regarding double jeopardy.  The doctrine of “issue preclusion” aka “collateral estoppel” prevents re-trial of a fact that was necessarily determined by a jury in a prior case.  So even if the defendant is not charged with the same crime, it might still constitute double jeopardy if the second criminal offense relies on a factual question that a jury resolved in favor of the defendant in an earlier trial.  In this case, the defendant was accused of stealing guns.  He had a prior felony conviction, so it would have been illegal for him to even possess the guns.  With his agreement, the state first tired him for larceny and breaking and entering, and severed the charge of “felon in possession of a firearm.”  The jury found in favor of the defendant in the first trial, but the state proceeded to try him for possession anyway, and this time convinced the jury.  The issue is whether issue preclusion, and thus the double jeopardy clause, applies even where the defendant agreed to sever the charges.  The arguments on both sides are described in scotusblog’s preview.

The second case today, City of Hays, Kansas v. Vogt, involves the right against self-incrimination, interestingly in the context of alleged police misconduct.  Under threat of being fired, a police officer told his supervisors how he came into possession of a knife while on duty.  He was then charged with a range of crimes, and although the charges were dropped before trial, the officer’s statements regarding the knife were used against him during a probable cause hearing. When he had trouble finding another job, he sued the City for violating his constitutional rights.  The Fifth Amendment prohibits being “compelled in any criminal case to be a witness against [oneself].”  It’s fairly settled that threat of termination is compelled, but is use during a preliminary proceeding covered by the amendment? The City is being represented by the UVA Law School’s Supreme Court Litigation Clinic, which has an useful story about the case. The Court accepted cert. on the question “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.”  A collection of government employers filed an amicus brief urging the Court to hold that the city cannot be held liable for the decision of the prosecutors; it will be interesting the see if the Court views this as within the scope of the question they agreed to review.

Wednesday, February 21

Both cases today will be a bit technical for the casual observer, but nevertheless should be interesting.

First, Rosales-Mireles v. U.S. involves waiver and plain error, in the context of illegal immigration. The defendant pleaded guilty to “illegal reentry” (returning to the US after being deported).  He had a prior criminal history, which increases the sentence.  However, the trial court counted a prior conviction for misdemeanor assault twice.  The government concedes that this was in error and placed him in the wrong sentencing guidelines category (77-96 months instead of the correct 70-87 months; he got 78 months). However, there was no objection at the time of sentencing, which means that an appellate court may only correct it if it constitutes “plain error.”  In the Fifth Circuit, this means not only obviously wrong but is the kind of error “that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”  The Circuit held that this error was not of that nature, and declined or order re-sentencing. The Supreme Court has accepted cert. to resolve whether that final condition for plain error review is appropriate.

For the second case, Dahda v. U.S., the official question presented is probably sufficient:  “Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.”

Monday, February 26

An extremely important case involving union “agency fees” or “fair share fees” is up first today, Janus v. AFSCME. In order to prevent discrimination based on union membership, the National Labor Relations Act requires that all employees be covered by a union contract — so workers are not getting different wages or working conditions depending solely on whether or not they joined the union.  But negotiating, administering, and enforcing a contract costs money.  Therefore, the Supreme Court held in Abood v. Detroit Board of Education (1977) that even employees who decline to join the union can be required to pay the union for these expenses.  Unions are required to calculate their spending precisely, and bill non-members an appropriate fraction of the membership fee; only money collected from voluntary members may be spent on non-workplace activities (like electoral campaigns).  This principle has been under attack in recent years, and many people predicted that Justice Scalia would have been the fifth vote to reverse these precedents if he hadn’t died after cert. was granted in Friedrichs v. California Teachers Ass’n but before a decision was issued.  The resulting 4-4 split left in place the Circuit court’s decision, which had ruled for the union based on those longstanding precedents.  This case brings the issue back to the Court. Scotusblog has a useful overview as well as an online symposium with a range of views.  This is a very important case and will draw a lot of attention — and early and long lines to get inside, but also press conferences and protests out front.

Ohio v. American Express is an antitrust case, arising out of differences in how AmEx, compared with Visa and MasterCard, set prices and work with merchants.  The Second Circuit sided with AmEx, but an unusually wide range of organizations are lining up on the other side.

Tuesday, February 27

The clash of new technology and old legal presumptions is on display in US v. Microsoft.  The federal government served a subpoena on Microsoft at their Washington state headquarters for emails of a suspected drug dealer. It agreed to turn over records stored in the US, but not the content of the emails, which were stored in servers in Ireland.  There is a general presumption that US laws do not apply outside the US (extraterritorial application), and the Court has never resolved how this relates to the Stored Communications Act or technology of this nature in general.  There are lots of interesting and nuanced concerns about effectiveness of our laws but the need to avoid putting international actors in a conflict with other countries’ laws.  Scotusblog has an overview and an online symposium with some really compelling insights.

An absurd example of First Amendment retaliation hits an 11th Circuit doctrine in Lozman v. City of Riviera Beach, Florida.  During the public comment portion of a City Council meeting, Mr. Lozman was instructed by a council member not to discuss his opposition to an eminent domain plan, and he was arrested when he persisted.  The transcript of an earlier meeting revealed a plan by council members to “intimidate” him.  He sued, but lost the trial and sought a new trial on various grounds.  The 11th Circuit held that the police officer had probable cause to arrest him for disrupting a public meeting, and therefore there could be no lawsuit for unconstitutional retaliation or any other grounds, because of the Circuit’s rule that a finding of probable cause bars any other such claims.  See this overview and the ACLU position.

Wednesday, February 28

First Amendment protection for political expression at the voting booth is the issue in Minnesota Voters Alliance v. Mansky:  “Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.”  Again, Scotusblog has a useful overview and interesting symposium.

Amicus Brief in Silk Road Case

Today, my friend Heidi Boghosian and I have filed an amici curiae brief urging the Supreme Court Court to review the conviction and sentence of Ross Ulbricht in the “Silk Road” case.  The petition for cert. was Scotusblog’s “petition of the day” last month. Our brief describes two major areas of concern that the Supreme Court should review and correct.

First, the government tracked Mr. Ulbricht’s internet activity without ever showing probable cause for such a search.  The Circuit Court of Appeals upheld this, finding that monitoring internet activity is subject to no greater privacy protection than monitoring what phone numbers a person dials.  Although the Supreme Court has expressed concern with the privacy interests in online activity, it has never specifically addressed this situation, and it is high time to make clear that our online activity may not be monitored absent a showing of probable cause.
Second, during sentencing, the judge made clear that she was basing the sentence on her belief that Mr. Ulbricht was guilty of murders for hire and causing other deaths—but he was never charged with homicide, and the jury made no findings in this regard.  Over the past decades, the Supreme Court has been reviewing the right to a jury trial where disputed facts would increase a sentence, but again, this particular scenario (of a sentence that is far beyond the Sentencing Guidelines, but technically within the statute) needs to be addressed.  Moreover, the judge expressed hostility to Mr. Ulbricht’s political views in opposition to the “war on drugs” and, of course, sentences based on the judge’s dislike of the defendant’s ideology cannot be tolerated.
The brief was joined by a range of organizations concerned with privacy rights and the right to a jury trial:  National Lawyers Guild, American Conservative Union Foundation Center for Criminal Justice Reform, FreedomWorks, Human Rights Defense Center, Judge Nancy Gertner (ret.), National Coalition to Protect Civil Freedoms, Partnership for Civil Justice Fund, and People’s Law Office.

Monday, October 30

Most of the cases this week are focused on technical issues that would not be terribly interesting or easily accessible to most casual observers.  The exception if the first case on Monday, Ayestas v. Davis.

In federal death penalty cases, the law requires that when counsel is appointed for indigent defendants, there also be funding for “investigative, expert, or other services [that] are reasonably necessary for the representation.”  18 USC § 3599(f).  This case is a habeas case — an appeal to the federal courts of a verdict in state court — and the Fifth Circuit has interpreted “reasonably necessary” to mean that the defendant must show that there is a “substantial need” for the investigation by presenting “substantiated argument, not speculation, about what the prior counsel did or omitted doing.”  The concern is that this standard requires defense counsel to prove what an investigation would uncover before there can be an investigation.  A very useful article about the case is on Scotusblog.  The Court has accepted cert. on “whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds ‘reasonably necessary’ resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.”

The second case today, Wilson v. Sellers, is also a federal death penalty case, but the question is more arcane.  The Antiterrorism and Effective Death Penalty Act (AEDPA) creates high barriers to federal courts overturning state court sentences of death.  A key concept is deference to adjudications “on the merits.”  Sometimes, various appeals in the state courts will result in some opinions that provide a full reasoning and others that offer only a summary affirmance of the decision.  Courts historically have “looked through” one-sentence decisions to the last full opinion as being the one for consideration as a decision on the merits, but a 2011 Supreme Court case seemed to hold that even summary decisions are “on the merits” in some circumstances.  This is an important issue, but very tied up in civil procedure matters that can be hard to follow.  If you plan to attend, read this article and, if you have time, a couple of amicus briefs — intriguingly, a group of retired state supreme court justices are on the opposite side from a group of state governments.

[Looking ahead, there is a voting rights case on November 8,* a Dodd-Frank whistleblower case on Nov 28, NCAA cases on Dec 4, and the much-anticipated Masterpiece Cakeshop case on Dec 5.  I will provide full descriptions of these cases in various posts as the oral argument dates for each get closer.]

* The voting rights case has been removed from the docket due to a medical issue with one of the lawyers who was going to argue the case.  We expect it to be argued early in 2018.

February cases

This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.

Tuesday, Feb 21

A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent.  The agent fired from US territory, but the boy was in Mexico.  That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial:  does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this?  A through description of all the legal issues is available here.

McLane Co v. EEOC is a more procedural issue without much suspense.  Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC.  All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.

Wednesday, Feb 22

The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently.  Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements.  Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents.  The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.

Monday, February 27

The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.

The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

January Cases

This week, the Court considers a free speech challenge to credit card surcharges, litigation sanctions, and what standards for a free appropriate public education for students with disabilities.  Next week, the Court takes on both disparaging trademarks and the rights of detainees who claim they were held in severe conditions of confinement based only on racial profiling.

Tuesday, January 10

An interesting case this morning involves claims of free speech rights in an unusual context:  credit card fees.  Merchants pay a fee to credit card companies, but ten states prohibit them from passing on that fee as a “surcharge.”  The group of merchants in Expressions Hair Design v Schneiderman argue that this prohibition is an unconstitutional limitation on speech.  The Second Circuit rejected that, holding that it only regulates commercial practices (conduct, not speech), but the merchants note that the law allows them to offer a discount for paying with cash, so as a practical matter, it regulates what they call it rather than what they charge.

The second case, Goodyear Tire & Rubber Co. v. Haeger, involves the scope of a court’s inherent power to award attorney fees and other sanctions where a party engages in some form of litigation misconduct.

Wednesday, January 11

The Individuals with Disabilities Education Act (IDEA) requires states to provide children with disabilities with a “free appropriate public education” (FAPE), but that is not fully defined.  Some courts, including the lower courts in this case (Endrew F. v. Douglas County School District), have held that it requires only that the state provide some sort of education that is of more than minimal value to the student.  Other courts, and the Obama Administration in this case, have argued that this is not enough, and the standard should involve a “meaningful” education.

[This is the only case being argued today, and is scheduled for one hour.  However, the Solicitor General is arguing along with the parties, so it may run a few minutes long.]

Wednesday, January 18

Two significant and contentious issues are before the Court today.

First, the Court considers the provision in the Trademark Act that allows for refusal to register the trademark if it would “disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. 1052(a). The specific case (Lee v. Tam) involves Samuel Tam, who named his band The Slants in order to bring attention to discrimination against Asians, “following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride.”  This case will have implications for the current name of the Washington football team, among other contentious current issues.

Next, the court considers detainee rights in Ziglar v. Abbasi and Hasty v. Abbasi, which allege that, in the aftermath of the 9/11 attacks, individuals were arrested and detained in extreme conditions on the basis of no evidence other than race, religion, and national origin.  The Atlantic offers an overview and makes predictions of the sort of reception the cases are likely to receive.  The Center for Constitutional Rights has detailed information about their case.  [The parties had requested additional time for argument, but that was denied and the cases are considered with one hour total.  I would expect it to run a little long nonetheless.]

 

December 5 – Voting Rights Act

The Supreme Court and state legislators have been struggling with voting districts as they relate one-person-one-vote principles and racial discrimination in multiple cases over the past several years, and the issues arise again in the two cases scheduled for Monday, December 5.

Amy Howe has an excellent article on Scotusblog that provides a full description of the context and these cases.  Briefly, Bethune-Hill v. Virginia State Board of Elections challenges twelve “majority-minority” districts in Virginia, with one side arguing that African Americans were packed into these districts in order to dilute their voting power in other districts and the other side claiming that the case was filed in order to require re-drawing of the maps after Democrats won the governorship.  The second case, McCrory v. Harris, is a challenge to North Carolina’s infamous NC-1 and NC-12 districts, which look like this:

congressmap01

(via http://www.newsobserver.com/news/politics-government/state-politics/article58756583.html)

Speculation and Updates: Final decision days

Factual update and speculation…  To speculate first, Scalia offered an unhappy announcement of his dissent in the Affordable Care Act decision, which I think may provide a spoiler on the outcome of the Congressional redistricting case.  The ACA issue was statutory interpretation, and the majority read insurance exchanges “established by the state” to include ones established by the federal government in stead of the state.  To bash this, Scalia referenced the Constitution’s elections clause, and suggested that everyone would agree that Congress using its election-regulating power would not represent “the state legislature” acting (this is from memory, but that’s the gist).  So — if this means that the majority of the Court has agreed that a plain and un-nuanced reading of the elections clause is what commands, then I think the Independent Redistricting Commission is about to lose…  (See the bullets below if you need a refresher on what that case is about.)  It’s possible that he was forecasting another dissent in that case, but that’s not how I heard it.

Further speculation is that I expect we’ll know about that case tomorrow, with marriage on Monday.  I say this simply because it seemed like redistricting is almost ready, and because both Kennedy and Roberts had major opinions today so are a little less likely to have opinions tomorrow (and they seem the most likely authors of a marriage decision).  But that’s a bit of a stretch on my part, and I plan to be in the courtroom tomorrow in any event.

If you plan to attend, know that the public area was full today but the bar section was not.  There was also a fairly sizable set of demonstrators out front.  IMG_3439The Obamacare supporters were chanting (they cleverly had stickers to modify their large signs, depending on the outcome), and I saw people who looked like they had been ready for a decision in the marriage cases.  So even standing outside the courtroom can be a worthwhile experience on big decision days.

Now for objective information:  after today’s decisions, there are now 5 cases that were heard this term but are still undecided, with two announcement days left on the Court’s calendar–tomorrow and Monday.  So an updated recap of what remains (ordered by date of oral argument):

  • Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2).  Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
  • Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25).  Important issues about what the EPA must consider when it regulates power plants.  Fuller analysis is here.
  • Criminal law, Johnson v. US (argued April 20):  (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
  • Same-sex marriage, Obergefell v. Hodges (argued April 28).  One of the most high-profile cases of the term.
  • Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

 

Final Decision Days – full recap

The Court has issued decisions in a number of cases since my last post, but several of the most highly anticipated cases still remain.  In addition to the typical Monday decision day, the last of which is next week (the 29th), the Court has added two decision day on Thursday and Friday this week.  There are now 7 cases that were heard this term but still undecided.  It’s possible that the Court will wrap up this week and not use Monday, but probably more likely that it will spread decisions over the 3 days that are currently on its calendar.

So an updated recap of what remains (ordered by date of oral argument):

  • Disparate impact under the Fair Housing Act, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (argued Jan 29).  The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.”  Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.”  But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic?  Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
    This case involves the allocation of tax credits and the impact on housing voucher programs.  Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers.  The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers.  Hence this suit, alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods.
  • Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2).  Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
  • Affordable Care Act (“Obamacare”)King v. Burwell (argued March 4).  Its constitutionality is established, but there’s a question about whether the specific language in the law allows for tax subsidies for people who get their insurance through the federal exchange instead of through their state.  Useful details in this article.
  • Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25).  Important issues about what the EPA must consider when it regulates power plants.  Fuller analysis is here.
  • Criminal law, Johnson v. US (argued April 20):  (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
  • Same-sex marriage, Obergefell v. Hodges (argued April 28).  One of the most high-profile cases of the term.
  • Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

I’ve attended the last two decision days, walking into the Court at about 8:30.  Last Thursday, there was barely any public line at that time, but yesterday, the line was getting close to capacity.  With only three days left and so many significant cases, I would expect attendance to become more popular, so would suggest getting there as early as possible.  (The lawyer section has not been full, if you happen to be a member of the Supreme Court Bar.  But that may well change soon.)