Weekly Roundup, November 20, 2015

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Nancy S. Marder of Chicago-Kent wrote a guest post for us on Wednesday about Foster v. Chatman and race discrimination in peremptory challenges.

The Daily Progress and The National Law Journal covered an event Justice Sotomayor attended at the University of Richmond School of Law in which the Justice discussed how she nearly pulled out of the confirmation process.

Last Friday’s announcement that the Court will review a challenge to a Texas law regulating abortion clinics has caused a ripple of opinion. In The Economist, Steven Mazie wrote “the constitutional and political stakes are huge . . . . The ruling will amplify concerns about the justices Barack Obama’s successor will appoint to a bench that, a year from now, will be occupied by three octogenarians.” See also further coverage from NPR and Reuters.

The Court recently decided, in Mullenix v. Luna, that “a police officer should have been granted qualified immunity when he shot at a car whose driver had led police on a high speed chase to stop it instead of waiting to see if spike strips worked.” An analysis is available at the NCSL Blog.

Justice Scalia tells students at Georgetown University that the Supreme Court’s decisions protecting gay rights were not rooted in the Constitution and their logic could justify judicial protection of the rights of child molesters.  See the report in the New York Times.

Simon Lazarus pointed out a “stealth corporate takeover” of the Court in The New Republic.

Race and Peremptory Challenges at the Supreme Court: Assessing Foster v. Chatman

Image used under CC License from Wikimedia Commons
Image used under CC License from Wikimedia Commons

Guest Post by Nancy S. Marder, Professor of Law, Director of the Justice John Paul Stevens Jury Center, and Co-Director of the Institute for Law and the Humanities at IIT Chicago-Kent.

On November 2, 2015, the United States Supreme Court heard oral argument in Foster v. Chatman.  The petitioner in this case, Timothy Tyrone Foster, asked the Court to decide whether the prosecutor exercised peremptory challenges based on race, in violation of an earlier Supreme Court precedent, Batson v. Kentucky. Peremptory challenges are allotted to both sides during jury selection so that they can remove a certain number of prospective jurors from the jury without having to give any reason at all.

Batson, which was decided in 1986, established that peremptory challenges cannot be exercised by prosecutors against African-American prospective jurors if the defendant is African-American.  Later Supreme Court cases expanded Batson and established that lawyers cannot exercise peremptory challenges based on the prospective juror’s race, ethnicity (Powers v. Ohio) or gender (J.E.B. v. Alabama ex rel. T.B.), and these prohibitions apply to prosecutors and defendants (Georgia v. McCollum) in criminal cases, as well as to lawyers in civil cases (Edmonson v. Leesville Concrete Co., Inc.).

Petitioner Timothy Tyrone Foster, an African-American man who has been on death row for the past twenty-eight years in Georgia, claimed that the prosecutors in his case violated Batson by exercising race-based peremptory challenges and striking four African-American prospective jurors during jury selection.  Foster was tried, convicted, and sentenced to death by an all-white jury.

Foster’s case provides an unusual window into the exercise of peremptory challenges and how prosecutors have managed to circumvent the proscriptions of Batson.  When Foster objected to the prosecutors’ four peremptory challenges, the prosecutors gave seemingly race-neutral reasons for their challenges, which the trial judge and reviewing state courts accepted.  However, years later Foster was able to obtain the prosecutors’ notes through the Georgia Open Records Act.  The notes revealed that the prosecutors were working from a venire or panel list that highlighted in green those who were African-Americans, juror cards that indicated African-American prospective jurors by race, and a list of “definite no’s” that included the remaining African-American prospective jurors (after for cause challenges and hardship excuses had been exercised).

Although the prosecutors gave seemingly race-neutral reasons for the exercise of their peremptory challenges, their notes suggested that they considered race at every stage of jury selection.  This is as close to a “smoking gun” as one is likely to find in a Batson challenge, unless the prosecutors had said outright that they had struck jurors based on their race, which no prosecutor would say after Batson.

During oral argument at the U.S. Supreme Court, the lawyer for Georgia tried to explain the prosecutors’ notes by saying that they had to keep track of the prospective jurors’ race because the petitioner had filed a motion seeking to prevent the State from exercising peremptory challenges based on race.  Several of the Justices, however, were skeptical of this reason because it was not advanced until Georgia filed its brief at the U.S. Supreme Court.  The prosecutors had never made this argument in any of the courts below.

Click on image for full size.

One of the more surprising aspects of the oral argument was a procedural question about whether certiorari in this case should be directed to the Georgia Supreme Court, that had declined to issue a certificate of probable cause because it found Foster’s habeas appeal to be meritless, or whether it should be directed to the Superior Court of Butts County, Georgia that had considered and denied Foster’s habeas petition based on the newly discovered prosecutors’ notes.  The Supreme Court had taken the highly unusual step of sending the parties a letter on the Friday (Oct. 30, 2015) before Monday’s oral argument (Nov. 2, 2015), letting them know that they needed to address this procedural issue.  Each side spent almost 20 of its 30 minutes of oral argument on this issue.  However, those in the courtroom on Monday—other than the Justices and both sides’ lawyers—had no idea why the lawyers were addressing this procedural issue rather than the merits of the case.

This procedural issue, which was not resolved at oral argument, might lead the U.S. Supreme Court to decline to reach the merits of this case, or to wait until after the Georgia Supreme Court or the Eleventh Circuit has weighed in on this issue.

It would be unfortunate if the Supreme Court does not reach the merits of this case.  Although it is notoriously difficult to show a Batson violation, in this case the prosecutors’ notes speak for themselves and show that the prosecutors’ peremptory challenges were based on the race of the prospective jurors. If the Court reaches the merits, there is a good chance it will hold that the prosecutors in this case violated Batson.

However, if the Court is able to reach the merits, I believe it should go even further than Foster has requested and eliminate peremptory challenges.  Peremptory challenges continue to serve as a mask for discrimination during jury selection.  Justice Thurgood Marshall, in his concurrence in Batson thirty years ago, urged the Court to eliminate peremptory challenges in order to eliminate discrimination during jury selection.  He wrote that as long as peremptory challenges were permitted, discrimination during jury selection would persist.  Justice Marshall was right and thirty years of experience with Batson have proven his point.

Read Nancy S. Marder’s article, “Foster v. Chatman: A Watershed Moment for Batson and the Peremptory Challenge?” on SSRN.

Weekly Roundup, November 13, 2015

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A trailer for PBS’ “Unexpected Justice” about Justice John Paul Stevens was released this week. The documentary concerns the Justice’s involvement in a whistleblower case against some Justices in the Illinois Supreme Court.

Oral arguments for Luis v. United States were held on Tuesday. The case raises the question of whether a court can freeze a defendant’s “untainted” assets when “tainted” assets are not available. NPR’s Nina Totenburg reported on the case, while Mark Joseph Stern wrote it up on Slate.

“Is John Roberts a good judge?” Adam White examined the Chief Justice’s legacy in The Weekly Standard.

Tyson Foods, Inc. v. Bouaphakeo, argued on Tuesday, was a “highly anticipated showdown over the standards for establishing a class action” that “proved disappointing,” according to Daniel Fisher on Forbes. Tony Mauro wrote up the case in The National Law Journal and Richard Wolf reported in USA Today.

The Obama Administration has appealed a federal appeals court decision that held unconstitutional the President’s executive order on immigration. “The president’s lawyers may face an uphill fight in the high court, where some justices have voiced skepticism over Obama’s bold use of executive authority,” write David Savage and Timothy Phelps in the Los Angeles Times.

Discussions concerning Spokeo, Inc. v. Robins have been ongoing on Constitution Daily and Bench Memos. Coverage for Lockhart v. United States continued at The Economist and Bloomberg View.

Weekly Roundup, November 6, 2015

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On Monday, the Court reviewed Spokeo, Inc. v. Robins, about an Internet “people search engine”  alleged to have violated the Fair Credit Reporting Act. Vanderbilt Law Review hosted a roundtable on the case. The Los Angeles Times previewed the case, while on The National Law Journal, Marcia Coyle reported on the oral arguments. James Cooper wrote an op-ed for The Christian Science Monitor, saying that if the Court “sides with the alleged victim, any tech company that collects and aggregates personal data could be subjected to devastating lawsuits.” A Reuters report noted the close division in the Court’s response.

JTA shares some highlights from the book Notorious RBG about Justice Ginsburg.

On Monday the Supreme Court heard oral arguments in Foster v. Chatman, concerning the exclusion of African Americans from a capital jury. In The New York Times, Larry Thompson wrote that if the Supreme Court “cannot establish discrimination in this case, then the lofty language of Batson rings hollow.” Nina Totenberg covered the case on NPR; on The Economist, Steven Mazie discussed the argument.

David Gans wrote about the amici curiae brief filed by the Constitutional Accountability Center for Fisher v. University of Texas, round two at the Court of a challenge to UT’s affirmative action policy.

The Supreme Court Justices reviewed child pornography sentencing enhancements in Lockhart v. United States on Tuesday. Jessica DaSilva reported on BNA.

“What did Congress mean a generation ago when it required prisoners challenging prison conditions and treatment in court to pay hefty filing fees, in monthly installments, from their meager prison wages?” USA Today reported on Wednesday’s discussion of Bruce v. Samuels.

Weekly Roundup, October 30, 2015

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ISCOTUS Director Christopher Schmidt discusses Melvin Urofsky’s new book, Dissent and the Supreme Court.

Justices in the news: Justice Sotomayor visited Pomona College in California and offer a very personal perspective on life at the Court; Justice Kennedy was at Harvard Law School, where he lamented the current state of  the American criminal justice system.

At Knowledge Center, Lisa Soronen examined the impact upcoming SCOTUS cases could have on specific states.

The book Notorious RBG, based on the Tumblr featuring Justice Ginsburg, got some coverage in NPR’s All Things Considered. At ThinkProgress, Ian Millhiser reviewed the book, writing, “Notorious RBG does more than chronicle one woman’s life, it chronicles a time when Americans slayed dragons.”

In anticipation of next week’s oral arguments in Spokeo, Inc. v. Robins, Justin Sadowsky of Dubitante wrote about “why a pro-Spokeo ruling here . . . would be revolutionary in its breadth.” On Hamilton and Griffin on Rights, commentator Erwin Chemerinsky implored the Court to “reaffirm that Congress, by statute, can create rights, albeit rights that otherwise would not exist, and the infringement of these rights is a sufficient injury for standing.”

Looking ahead to next week’s oral arguments in Torres v. Lynch, Steve Vladeck wrote about how the Court’s response “could significantly either expand or contract the class of state-law convictions that render non-citizens subject to removal going forward.” In the ABA Journal, Mark Walsh also previewed the case.

On USAToday, Richard Wolf outlined the coming shift in the Supreme Court with the new presidential term and the Court’s ageing lineup.

What Makes a Great Supreme Court Dissent?


What is the significance of a dissent at the Supreme Court?  According to legal historian Melvin I. Urofsky, in most cases dissents don’t matter much at all.  “Nearly all of them are forgotten today, because they had no lasting jurisprudential value, they did not convince future courts … they did not contribute to the constitutional dialogue,” a term he uses to refer to the contestation over constitutional issues that takes place outside the judiciary.  Yet some dissents have not been forgotten.  Some dissents have played a role in shaping future events.  Some dissents have resonated with “the intelligence of a future day,” as Chief Justice Charles Evans Hughes memorably put it.  These dissents are the subject of Urofsky’s just published book, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue.

Urofsky traces the fascinating history of dissenting practices on the Supreme Court.  In the early nineteenth century, Chief Justice John Marshall persuaded his colleagues to abandon the practice of having each justice write his own opinion in every case in favor of having a single opinion speak for the entire Court.  Dissents were rare on the Marshall Court.  Under the leadership of Marshall’s successor, Roger B. Taney, who served as Chief Justice from 1836-1864, dissents gradually increased in frequency.  Although most cases were still decided with a single opinion of the Court, from the Taney Court into the early twentieth century, dissenting opinions became common practice in major constitutional cases.  Whatever hesitancy justices had toward dissenting dissolved in the 1940s. The rate of unanimous decisions plummeted and dissents (as well as concurring opinions) became commonplace.  

Some have expressed concern that the modern practice of multiple opinions, often fractured in dizzying ways, risks undermining the Supreme Court’s legitimacy.  Have court opinions “become a babble making it difficult, if not impossible, for the constitutional dialogue to take place?” Urofsky wonders.  In defense of themselves, the justices typically offer two responses.  First, they emphasize that they actually agree on a large percentage of cases.  And second, they argue that dissents ultimately strengthen the Court.  “When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake,” Justice Scalia explains, “it is comforting—and conducive of respect for the Court—to look back and realize that at least some of the Justices saw the danger clearly, and gave voice, often eloquent voice, to their concern.”

Urofsky offers a thorough and often quite fascinating description of famous Supreme Court dissents through the years.  He draws on his deep knowledge of American legal history to provide useful context about surrounding events and the justices themselves, allowing the reader to fully understand the issues and personalities involved.  One can read the book from start to finish and receive an edifying overview of the history of the Court.  Or one can take a more selective approach, exploring the many anecdotes and character sketches that populate the book.

Why do some dissents resonate, while most are largely forgotten?  This is a question that Urofsky considers throughout the book. Urofsky suggests that the justices themselves have some control over the impact of their dissents.  He argues, for example, that the “babble” of many dissents and concurrences diminish the impact of any given opinion.  He notes that Justice Frankfurter’s frequent concurring and dissenting, combined with his lengthy, law-review style writing tendencies, has limited the impact of his opinions.  He also believes that Scalia’s uncompromising, attacking style gets attention but limits the persuasive value of his dissents.  

But, in the end, Urofsky admits, “we cannot tell at the time whether or not a dissent will succeed in its call to future generations.”  There are plenty of eloquent, quotable dissents gathering dust in the U.S. Reports.  What really explains why some dissents last, and some do not, comes down to the national “constitutional dialogue” referenced in the book’s subtitle.  

The national constitutional dialogue is always bigger than any Supreme Court opinion.  When it comes to major issues of constitutional contestation, Supreme Court opinions join the dialogue.  Landmark Court rulings can elevate the salience of a constitutional dispute.  This was the case with Brown, for example, or Roe.  Court rulings can steer discussion in certain ways.  But for a dissent—a legal statement that requires no one to do anything—to play a role in this constitutional dialogue requires not only a measure of eloquence and some quotable lines.  It requires people outside the Court who are engaged in this constitutional dialogue to use these dissents to advance their agenda.  And it requires some receptivity among the American people to the vision of law contained in the dissent.  Historical circumstances, not justices, make great dissents.

Weekly Roundup, October 23, 2015

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ISCOTUS Director Christopher Schmidt looked back to the dramatic bench announcements at the Supreme Court in last term’s death penalty case, Glossip v. Gross.

On Casetext, Colin Starger considers this week’s arguments in Montgomery v. Louisiana, involving the retrospective application of a previous holding in which the Court prohibited mandatory sentences of life without parole for juveniles.  He concludes: “With the problem of mass incarceration now getting mainstream attention, the Court may realize that retroactive application of important new rules is one easy way to get very old men and women out of prison.”

Further commentary pours in after last week’s oral arguments for Hurst v. Florida as the Court considers the constitutionality of Florida’s scheme for sentencing the death penalty. Sam Kamin wrote “the Florida capital scheme is spectacularly, flamboyantly unconstitutional and . . . Florida seems not much to care.” In the National Review, Jonathan Keim predicted, “On the whole, I think the Court will split the baby on this case.”

Tony Mauro wrote about how Supreme Court Justices check for conflicts without software. “‘The conflict-checking process is an internal one carried out by the individual chambers,’” wrote Court spokeswoman Kathy Arberg.

Coverage continues on the class-action case Campbell-Ewald Co. v. Gomez, the case of a litigant who “won’t take yes for an answer.” ABA Journal summarizes the issues.

On Bloomberg BNA, Kimberly Robinson explained why preemption cases “are fascinating . . . really!”

During a University of Minnesota Law School appearance, Justice Scalia commented on the Court’s approach to the death penalty, as well as his experience on the bench. “I have never aspired to have the most dissents in the court’s history . . . I’m in third place now. I hope I’m never in first place.”

Listen to This—Justice Scalia’s Remarkable Bench Announcement in Glossip

Last term at the Supreme Court ended with a bit of drama from the bench that provided a fitting end to a term marked by more than its fair share of raw emotions in the courtroom.  

The last major decision announcement was Glossip v. Gross, a challenge to Oklahoma’s lethal injection protocol.  Glossip, a prisoner on death row, challenged the 3-drug protocol on the grounds that the first of the drugs, which was designed to anesthetize the prisoner, was of questionable efficacy.  Glossip lost.  A five-justice majority upheld the lower court’s ruling that found the lethal injection protocol did not constitute “cruel and unusual punishment” as prohibited by the Eighth Amendment.  

April’s oral arguments in Glossip produced a particularly heated discussion in the courtroom.  Justice Alito accused anti-death penalty advocates of engaging in a “guerilla war” by pressuring drug companies to get out of the business of supplying drugs used in executions.  Oral arguments also took several macabre turns, as the justices and the lawyers discussed various methods of execution: hanging, gas chambers, firing squads.  At one point the discussion even turned to the constitutionality of execution by being burned alive.  (All agreed that burning as a method of execution was unconstitutional, but Justice Alito was curious about whether the same could be said if the condemned were unconscious and felt no pain.)

An emotional oral argument with wild hypotheticals may not be the norm at the Court, but it is hardly unprecedented.  It was the bench announcements in Glossip—the audio of which was recently released by the Court—that broke new ground for the Roberts Court.  When an opinion is handed down, the author of the majority opinion takes a few minutes to summarize the opinion.  On occasion—usually just a few times a term—the author of a dissenting opinion will also speak from the bench.  But in Glossip, four different justices wanted to talk about their opinions from the bench: a majority opinion, two dissents, and a concurrence.

Justice Alito announced the opinion of the Court rejecting Glossip’s Eighth Amendment claim. Justice Sotomayor followed with a summary of her dissent.  Her bench statement, only her second oral dissent during her six years on the High Court, made clear her vehement disagreement with the majority’s reasoning.  Justice Breyer then announced his dissenting opinion.  Breyer signed onto Justice Sotomayor’s dissent, but he also wrote a bombshell of an opinion, joined only by Justice Ginsberg, in which he went beyond the issue of the constitutionality of this particular method of execution and raised the question of whether the entire death penalty was unconstitutional.  Such a momentous declaration from two Supreme Court justices, Breyer felt, merited the very rare step of having two dissenting opinions announced from the bench.  

But this was not the end of it.  Justice Scalia has long made clear that he has no patience for anyone who would argue that the death penalty violates the Constitution: the Constitution, he points out, includes several references to capital punishment.  He thus felt the need to join the closing-day performance and announce his own concurring opinion dedicated exclusively to refuting Justice Breyer dissent.  (Scalia’s opinion was more of a dissent from a dissent than a concurrence.)  

Scalia took advantage of his platform and offered a brief statement in which he not only denounced Justice Breyer’s challenge to the constitutionality of the death penalty, but also denounced the Court’s same-sex marriage decision that the justices handed down several days earlier.  He argued that the reasoning of both Justice Kennedy’s ruling striking down state bans on same-sex marriage and Justice Breyer’s argument against the death penalty suffer from the same flaw.  In each case, justices decided an issue that, according to Scalia, the Constitution properly left to the democratic process.  Justice Scalia concluded his statement with a line that Justice Breyer used in his bench dissent in the Parents Involved public school desegregation case of 2007: “It is not often in the law that so few have so quickly changed so much.”  

Listen to the bench announcement here.

Weekly Roundup, October 16, 2015

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On Tuesday, the Court discussed Montgomery v. Louisiana, a return to the earlier ruling in 2012’s Miller v. Alabama regarding life without parole for juveniles convicted of murder. The court is considering whether its ruling in 2012 applies to cases finalized when Miller was decided. For analysis, see Lyle Denniston on SCOTUSblog and Noah Feldman on BloombergView.  In the Stanford Law Review Online, Jason Zarrow and William Milliken discuss the  jurisdictional issue in the case.

In The Washington Post, Steven Mazie wrote that the Court “has often been a lightning rod of controversy in its 226 years, but never before have so many darts been lobbed at the institution from so many points on the political spectrum.”

At the New York Times, Linda Greenhouse wrote “the stakes couldn’t be higher” regarding challenges to Texas’s new abortion laws.

Five justices recused themselves on Tuesday in response to an angry petition from a disbarred IP lawyer, Patrick Missud. Without a quorum, the petition was dismissed.

Justice Sonia Sotomayor officiated a same-sex marriage on Saturday, which makes her the third Justice to have officiated a same-sex marriage.

Garrett Epps previewed Sturgeon v. Masica in The Atlantic, a case about “whether the federal government can keep John Sturgeon, a 75-year-old Alaska outdoorsman, from using his personal hovercraft to stalk the wily moose in the wilds of the Yukon-Charley Rivers National.”

The Term Ahead at the Supreme Court

One week into the new Term at the U.S. Supreme Court, the early conventional wisdom is taking shape, and it’s looking like a good term for the conservatives.  Last term ended on a high note for the liberals.  In addition to the same-sex marriage decision, there were a number of dodged bullets as the four justice liberal bloc were able to get the votes to secure majorities to fight back challenges to the Affordable Care Act and the Fair Housing Act.  The liberals were also in the majority in closely divided opinions on voter redistricting and the regulation of judicial elections.  But now, as the new term gets underway, commentators are predicting that the pendulum is about to swing.

What are the cases in which this conservative comeback will take place?  Here are three cases the Court will hear, plus one that the Court will likely hear, that many see as opportunities for significant conservative victories.  

(1) Friedrichs v. California Teachers Association.  Public-sector unions are back at the Court, and many are predicting the Court’s conservatives will continue down the path they’ve been charting in recent terms and further restrict mandatory fees required by non-union members.  In a line of precedent dating to the 1970s, the Court has held that non-union members may be required to pay a “fair share” fee to unions to cover expenses relating to collective bargaining (but excluding expenses relating to political activity).  In Friedrichs, a group of California teachers challenged the required payment of union fees of any kind.  They argued that collective bargaining is a form of political activity, and being forced to fund the union’s collective bargaining efforts is a violation of the First Amendment’s prohibition on compelled speech.  In recent cases, Court conservatives have been receptive to these kind of First Amendment challenges to mandatory fees.

(2) Fisher v. University of Texas.  Not only is affirmative action in higher education back at the Supreme Court, but Abigail Fisher is back.  In 2012 the Court first heard Fisher’s challenge to the racial preference program at the University of Texas.  The Court issued a decision that offered additional guidelines on when university racial preference programs were constitutionally permissible and remanded the case back to the appeals court.  The lower courts reviewed the case again, upheld UT’s racial preference program again, and Fisher’s lawyers have appealed their ruling yet again.  Texas has a unique hybrid approach to achieving racial diversity in its universities, combining a policy that assures admittance to the university system to those in the top 10% of their high school class with a race-conscious admissions policy.  The question before the Court is whether Texas can sufficiently justify the necessity of the race conscious policy when it achieves substantial diversity with its top 10% plan.

(3) Evenwel v. Abbott. The issue of voting rights returns to the Court in a case that raises the question of how to measure population for purposes of redistricting under the one person, one vote requirement.  Is the proper measure eligible voters or the total number of residents?  Practically all states use total residents, but the challengers in this case argue that only eligible voters should be counted.  In districts with large numbers of residents who are not eligible to vote (legal immigrants who are not citizens, undocumented immigrants, felons), a ruling adopting the challengers argument would be highly consequential, likely tilting political power from cities to rural areas—a change that would benefit Republicans.

(4) And it’s likely that abortion will be back.  The last time the Supreme Court heard a major abortion case was 2007, when it upheld the federal law banning so-called “partial-birth” abortions.  This term the Court is likely to consider a challenge to a 2013 Texas law that requires abortion clinics to meet the same standards for equipment and staffing as hospital-style surgical centers and requires for doctors who provide abortions to have admitting privileges at local hospitals.  These new regulations would result in the shutting down of most of the state’s abortion clinics.  The Fifth Circuit upheld the new regulations.  In June, in a 5-4 vote, the Supreme Court voted to block the Fifth Circuit ruling until they had time to consider the issue—making it likely they will take up the case.