Feb 22 – March 3 Cases

With the Court removing from the calendar the “remain in Mexico” case (which had been scheduled for argument on March 1) in light of changed positions under the new Administration, the main focus of attention will be on the Voting Rights Act cases on March 2. But there are also cases involving immigration appeals, the “hot pursuit” doctrine, and the appointments clause. A quick reminder that C-SPAN seems to offer the most reliable stream to listen in live (at 10am; no second round of arguments on the days listed below), or see this page for ways to take in the arguments a bit later.

[Feb 22‘s sole case will have rather narrow appeal: Florida v. Georgia, “Whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region”]

Tuesday, February 23

The two cases today (consolidated for 1 hour of argument total) involve presumptions and procedures in immigration cases. In Rosen v. Dai, Dai sought asylum and testified that he would face torture if returned to China. The immigration judge and the Board of Immigration Appeals ruled against him, but never explicitly held that his testimony lacked credibility. On appeal, the 9th Circuit held that in the absence of such a finding, Dai was entitled to a presumption that his testimony was credible. Somewhat similarly, in Rosen v. Alcaraz-Enriquez the BIA relied on a probation report to find that Alcaraz-Enriquez was a danger to the community and therefore not entitled to withholding of removal, but did not explicitly find that his testimony (which contradicted the probation report) was not credible. In both cases, the Court has accepted cert. on “Whether a court of appeals can presume that an immigrant’s testimony is credible if an immigration judge or the Board of Immigration Appeals did not specifically find that he was not credible.”

Wednesday, February 24

Lange v. California is an interesting case about the limits of the “exigent circumstances” and “hot pursuit” exceptions to the warrant requirement. A California Highway Patrol officer stopped Lange’s garage door from closing and entered his garage without a warrant, which would ordinarily be required under the 4th Amendment. However, the officer had followed him there after Lange refused to stop after the officer turned on the patrol car lights. The prosecutor argued that Lange’s “failure to yield” constituted exigent circumstances. But this all began simply because Lange was playing his car stereo loudly and honked his horn a few times. The Court has accepted cert. on “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.” In addition to the first link (a helpful overview of the case), see the decision below.

Monday, March 1

Three consolidated cases (one hour total) today involving the Patent Office and the “appointments clause.” The Constitution (Art. II § 2) requires that “Officers of the United States” be appointed by the President and confirmed by the Senate. The Court has interpreted this to mean “principal officers” who exercise considerable authority, not every federal employee. In late 2019, the Federal Circuit held that Administrative Patent Judges are principal officers and therefore the existing system of their being appointed by the Secretary of Commerce was unconstitutional — which raises all sorts of issues about the validity of prior rulings and how to proceed going forward, which the Federal Circuit has tried to narrow and navigate around. So now the Supreme Court is reviewing both whether the circuit was right about the problem (lack of proper appointment and confirmation of judges) and has identified appropriate responses to that problem. Specifically: “(1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.”

Tuesday, March 2 — Voting Rights Act

A pair of cases (consolidated for 1 hour total, but expect it to run long) out of Arizona being argued today are among the most important of the term: Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases have received considerable public attention and SCOTUSBlog has a very useful overview as well as a symposium reflecting a range of perspectives. So I’ll add just a brief note to provide some context before following those links.

The Voting Rights Act, among other things, prohibits voting procedures that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees” of other VRA protections. 52 U.S.C. § 10301(a). And it further specifies this violation can be established if the “political processes” are not “equally open to participation by members of a class of citizens.” § 10301(b). These provisions are typically referred to as “Section 2.”

These cases involve Arizona’s “out of precinct” policy (if you show up to vote and aren’t on the list, you can cast a provisional ballot; but if it’s later found that you weren’t on the list because you went to the wrong precinct, then the whole ballot is thrown out) and anti-“ballot harvesting” policy (which prohibits collecting and returning someone else’s ballot unless you are the voter’s family member or caregiver, or a mail carrier or election official). The 9th Circuit found that both these policies violated the VRA because they had a disproportionate impact on minority voters and this effect was linked to social and historical conditions that created inequality of opportunity to participate in the election process.

Beyond the legality of these policies, advocates are hoping the Supreme Court will clarify the standards to be used in VRA § 2 cases. The ARP v. DNC case’s questions presented highlight this: “(1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly ‘unfounded’ concerns about voter fraud.”

Wednesday, March 3

The cases today (Carr v. Saul and Davis v. Saul, consolidated for 1 hour total) also involve the “appointments clause” that was at issue in the March 1 Patent Judges cases, but this time the argument is about a procedural issue that is preliminary to the constitutional question: “Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.”

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.

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)