Defying the Court

There was not much mystery as to how this one was going to turn out. Kim Davis’ legal arguments for why she should not be required to follow the Supreme Court’s same-sex marriage ruling were paper thin. They got her nowhere. The only real question was whether the Kentucky county clerk was going to back down when her legal appeals were exhausted. They were, and she did not. On Monday the Supreme Court refused Davis’ request for an extension of a stay on a court order that commanded her to start issuing marriage licenses (her refusal to follow the Court’s requirement to recognize same-sex marriage led her to refuse to issue any marriage licenses). And Davis, with the eyes of the nation upon her, stood her ground, denying a request for a marriage license by a local same-sex couple. Now she has been held in contempt of court. The federal district judge who issued the contempt order said she would be placed in jail until she agreed to comply with the court order and start issuing marriage licenses.

Although the outcome of this particular episode of defiance against a Supreme Court ruling was predictable, it is worth noting that historically resistance to the Supreme Court’s mandates can often be quite successful. There have been highly publicized acts of defiance that have successfully evaded Court rulings for extended periods of time. In the Court’s modern era, the most famous example was white southern resistance to Brown v. Board of Education, a campaign that resulted in the Court’s school desegregation ruling having a practically null effect in the Deep South for a decade following the Court’s ruling. There have also been lower profile patterns of defiance against Court rulings, such as the massive noncompliance with the Court’s prohibition on school prayer in its 1962 Engel v. Vitale decision.

The reason why Obergefell v. Hodges will not face anything approaching the same kinds of implementation problems as, say, school prayer or school desegregation, even in the face of considerable resistance to the Court’s holding, has to do with the mechanism of implementation. While Kim Davis is hardly the only local clerk who has been moved to refuse to abide by the Court’s ruling, resisters can be readily identified. Officials responsible for issuing marriage licenses are not so many in number and not so spread out across the country that individual acts of defiance will fall under the radar, as in the school prayer situation. And compliance and noncompliance are easily identified (are same-sex couples receiving marriage licenses or not?), which differentiates he situation from the problem with token compliance that ground the process of school desegregation to a near halt in much of the South following Brown.

Religious Liberty and Resistance to Same-Sex Marriage

The next wave of litigation involving same-sex marriage is now underway.   In the wake of the Supreme Court’s ruling last June striking down same-sex marriage bans across the nation in Obergefell v. Hodges, various individuals have been claiming a constitutional right to continue resisting same-sex marriage. At the core of these cases is what Justice Thomas in Obergefell described as an “inevitable” conflict between the assertions of religious liberty by those who oppose same-sex marriage and the Court’s recognition of a constitutional right to same-sex marriage.

Kim Davis, the county clerk for Rowan County, Kentucky, opposes same-sex marriage on religious grounds. When Kentucky’s governor, in response to the Court’s Obergefell ruling, issued an executive order requiring county clerks to start issuing marriage licenses to same-sex couples, Davis suspended issuing any marriage licenses in Rowan Country. Anyone in Rowan County who wanted to get married this summer had to get their marriage license in another Kentucky county. Several same sex-couples challenged Davis’s actions, and a federal district judge ordered Davis to start issuing marriage licenses. The judge stayed the injunction while Davis appealed the case. After a federal appeals court refused to extend the stay of the injunction so the appeals could play out, Davis’ lawyers turned to the U.S. Supreme Court. Yesterday, the Court refused to stay the injunction, which is about to expire.

In her petition to the Supreme Court, Davis’ lawyers explain that “Davis’ conscience forbids her from approving a SSM [same-sex marriage] license…. She holds an undisputed sincerely-held religious belief that marriage is a union between a man and a woman, only. Thus, in her belief, SSM is not, in fact, marriage.” To sign a marriage certificate for a same-sex couple, the petition argues, would be a “searing act of personal validation [that] would forever, and irreversibly, echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it.” To deny her what her conscience demands would mean “elected officials have no real religious freedom when they take public office.”

Long on this kind of passionate rhetoric, Davis’s legal argument was weak, and few could have been surprised when the Court refused to issue the stay her lawyers requested. Although the Court regularly struggles over the conflicts between government regulation and religious freedom when it comes to private individuals (as in last term’s prisoner beard case) and businesses (as in the recent Hobby Lobby case), these issues are less difficult when the conflict is between a legitimate government policy and a public official whose job is to implement that policy. And when the government policy being resisted is a constitutional ruling of the Supreme Court itself, well, then the writing is on the wall.

The Supreme Court will continue to have opportunities to revisit the same-sex marriage case as individuals initiated challenges based on religious liberty claims. And many of these will have more stronger legal grounds than Davis’ claim. Opponents of same-sex marriage note that the Obergefell opinions were filled with respectful references to religious opposition to same-sex marriage. In his opinion for the Court, Justice Kennedy wrote, “[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Chief Justice Roberts wrote of the “[m]any good and decent people [who] oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion.”

The Supreme Court has clearly not heard the last of this issue.


Julian Bond’s Day at the Supreme Court

Julian Bond, the legendary civil rights activist who died on Sunday at age 75, had his day at the Supreme Court on November 11, 1966. The previous year he had easily won his race for a seat in the Georgia House of Representatives, but his new colleagues refused to seat him. Bond, a self-described pacifist, had been openly critical of the Vietnam War and the draft; he had expressed sympathy for those who refused to join the military. Georgia House members cited these statements as disqualifying him to serve. They claimed Bond’s statements prevented him from being able to swear his allegiance to the state and federal constitutions, which were requirements of serving in the legislature. Bond challenged his exclusion in court. He lost his first round when federal district court held that in refusing to sear him the House had not denied Bond of his constitutional rights. As his court battle dragged out over the following two years, eventually landing before the U.S. Supreme Court, Bond’s constituents elected him to the House two more times. Each time, the Georgia House refused to seat him.


At oral arguments in the Supreme Court in November 1966, with Bond watching from the front row of the audience, the justices were clearly concerned with the limits of federal judicial oversight of state legislative authority to define its membership. Yet this discomfort was more than balanced by their frustration with the sweeping arguments of the Georgia Attorney General, who was representing those opposed to Bond taking his seat. “Is that all you rely on?” asked an irritated Justice William Brennan after the lawyer read Bond’s statements criticizing the Vietnam War. Brennan questioned whether these statements amounted to the declared commitment to violating the law and disobeying the Constitution that the lawyer claimed they did. Justice Abe Fortas suggested that the lawyer’s arguments came “perilously close” to defining any opposition to the Vietnam War as an adequate basis for exclusion from the state legislature.


In Bond v. Floyd, Bond won in a unanimous decision at the Supreme Court. The Court, in an opinion by Chief Justice Earl Warren, held that the Georgia legislature had violated Bond’s First Amendment rights. “While the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government,” Warren wrote, “surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy.” Bond would serve in the Georgia House of Representatives until 1975, and then in the Georgia Senate until 1987.

Fisher v. Texas, the Remix

Guest Post by Vinay Harpalani, Associate Professor of Law, Savannah Law School

In its October 2015 term, the U.S. Supreme Court will once again consider the constitutionality of race-conscious admissions policies. On June 29, the Court surprised many observers when it granted Abigail Fisher’s petition for a writ of certiorari in Fisher v. Texas (II)—two years after its initial ruling in the case. In Fisher (I), the Court remanded the case to the Fifth Circuit Court of Appeals for proper application of strict scrutiny, holding that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” On remand, the Fifth Circuit upheld the University of Texas at Austin (UT) race-conscious admissions policy, as both it and the U.S. District Court for the Western District of Texas had done in Fisher (I).

The basic issues in Fisher (II) remain the same as in the original case. Can UT use race as part of its supplemental holistic admissions policy, in addition to the Top Ten Percent plan it employs to admit the vast majority (approximately 80 percent) of its incoming class? Abigail Fisher contends that the Top Ten Percent Law itself admits a “critical mass” of underrepresented minority students, so UT does not need to use a race-conscious policy for students admitted through the supplemental holistic plan. UT, on the other hand, contends that it has not achieved sufficient diversity with the Top Ten Percent plan alone.

Although the issues are the same, Fisher (II) will differ from its predecessor. The Court will delve deeper into the merits than it did in Fisher (I). Also, in the initial Fisher litigation, UT’s primary argument focused on quantitative diversity: numbers of minority students in particular types of classes. UT contended that it had not attained a “critical mass” because a large percentage of its seminar courses—where more classroom discussion actually takes place—had few or no Black, Latina/o, or Asian American students. Conversely, Fisher (II) will focus more on “qualitative diversity”: how UT’s race-conscious policy contributes to diversity within racial groups and the educational benefits of such within-group diversity. This is an issue I have analyzed extensively.

UT did briefly raise its within-group diversity argument in Fisher (I) at the Supreme Court (not in the lower courts), but the Fisher (I) opinion did not consider the issue. On remand, however, diversity within racial groups became a much more central part of UT’s argument. UT focused on how Black and Latina/o students admitted under its supplemental holistic policy were qualitatively different from the Black and Latina/o students admitted under the Top Ten Percent plan. It argued that the non-Top Ten Percent students have had different experiences because they attended predominantly White schools. Moreover, in accordance with the diversity goals articulated in Grutter v. Bollinger, UT argued that these students can help break down racial stereotypes.

Abigail Fisher countered that UT has not established that its supplement holistic policy actually contributes to diversity within racial groups, or that such within-group diversity has educational benefits unattainable via the students admitted under the Top Ten Percent plan. Fisher further argued that UT’s assumptions about diversity within racial groups are themselves rooted in racial stereotypes and violate the spirit of the Equal Protection Clause. She also questioned whether UT could raise the within-group diversity argument, after not doing so in the lower courts in the first case, and she argued that regardless, within-group diversity is not part of Grutter’s compelling interest.

The Supreme Court has heard some of these arguments before, but this time it should actually rule on them. In accordance with its Grutter and Fisher (I) precedents, the Court should defer to UT on defining its diversity-related educational goals, such as the benefits of diversity within racial groups. However, to pass the ever-tightening narrow tailoring test, UT will probably need to show that its supplemental holistic policy does in fact contribute to diversity within racial groups, and that such within-group diversity is related to the educational goals and benefits that it has articulated. This will be a difficult challenge, as UT has not yet produced evidence to demonstrate these points in a specific and tangible manner.

The Court will also likely revisit the issue of “critical mass”—a dilemma which took center stage in the Fisher (I) oral argument, but which the Court did not address in its Fisher (I) opinion. Both parties continue to treat critical mass as part of the narrow tailoring test rather than as a component of the compelling interest. Previously, I have argued that this is a strategic mistake for UT. As it stands, the burden will be on UT to articulate a tangible definition of critical mass—a difficult undertaking because of the complex type of racial diversity it seeks, and because it must distinguish a critical mass from a numerical quota. UT will also likely have to show that its race-conscious policy contributes to attaining this critical mass, and it may have to define a tangible end point for its use of race. UT ran into trouble with all of these issues in the Fisher (I) oral argument, and it must fare better for any chance of prevailing in Fisher (II).

Justice Elena Kagan will once again be recused from Fisher (II), as she participated in Fisher (I) in the lower courts when she was the U.S. Solicitor General. Justice Anthony Kennedy’s vote likely will be outcome determinative, as is often the case on this Supreme Court. Although he has not voted to uphold race-conscious admissions policies in the past, Justice Kennedy has stated that along with diversity, “avoiding racial isolation” is a compelling state interest. This creates a conundrum for him, because the Top Ten Percent plan only yields racial diversity for UT because of racial isolation and segregation in Texas public schools.

Nevertheless, I predict that the Supreme Court will strike down UT’s race-conscious admissions policy on narrow tailoring grounds. But the ruling itself will probably have limited precedential value. UT’s Top Ten Percent plan is unique among states that use race-conscious admissions policies, and a narrow ruling striking down the use of race would not be applicable in other states. The Court is not likely to overturn Grutter: it has now thrice upheld diversity as a compelling interest, and Justice Kennedy himself affirmed the diversity interest in both his Grutter dissent and his Fisher (I) majority opinion. The Court could alter Grutter’s narrow tailoring test in some substantive manner. However, it could also rule for Fisher on grounds that UT has not passed Grutter’s own narrow tailoring test—by failing to illustrate the link between its race-conscious policy and the educational benefits of within-group diversity (or any other educational benefits), and by failing to define critical mass and its end point for using race in admissions.

With five Justices who are hostile, at varying levels, to race-conscious admissions, the Supreme Court will continue to tighten its chokehold on Grutter—in Fisher (II) and beyond. Ironically, the Court may use its own creation—the confusing and convoluted doctrine on race-conscious university admissions—to force universities into a race-neutral corner without actually overruling Grutter. Universities should begin right now to assess how they can defend their race-conscious admissions policies in the future. Even if it has a limited immediate impact, Fisher (II) will very likely provide fuel to more lawsuits, some of which have already been filed. Universities will have to articulate their diversity-related goals more specifically and illustrate tangibly how those goals relate to race-conscious policies. Elsewhere, I have written about how they can begin this process—in an effort to keep race-conscious policies alive until the composition of the Court changes and it becomes more amenable to racial diversity and justice.


The Supreme Court and Its Audience


For whom do the justices write their opinions? In the run-of-the-mill Supreme Court ruling, the answer to this question seems self-evident. Who would plow through a lengthy, often technical, always citation-laden opinion other than judges, lawyers and law professors? Yet when it comes to big ones, the minority of decisions that capture the attention of the American people, the justices often seem to aspire to a broader audience in their written opinions.

The Chief Justice’s dissent in Friday’s same-sex marriage ruling illustrates this point in a particularly direct way. In closing his dissent, the Chief Justice makes a highly unusual move: he shifts to the second person in order to directly address what he views as his target audience:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

The Chief Justice seeks to impart a civics lesson on the role of the courts and the limits of the Constitution to supporters of same-sex marriage. His point is that just because someone believes something to be right does not make it constitutionally mandated, that the courts should not be relied upon to deliver victories on questions of policy (as opposed to law).

The other dissenting justices seem less interested that the Chief Justice in reaching out to the other side. Their primary audience seems to be those who already agree with their position, either because they oppose same-sex marriage or because they oppose federal judicial intervention on the issue. Justice Scalia issues dire warnings of “this Court’s threat to American democracy” and lashes out at the “mummeries and straining-to-be-memorable passages” of Justice Kennedy’s opinion for the Court. Scalia is hardly reaching out to possible coverts with this over-the-top language. Justice Thomas’s dissent insisted up some narrower legal points—the importance of founding era history in interpreting constitutional language, the invalidity of a “substantive” reading of the Due Process Clause.

Justice Alito expressed concern that the Court’s ruling might be “used to vilify Americans who are unwilling to assent to the new orthodoxy” in support of same-sex marriage. “[T]hose who cling to old beliefs … will risk being labeled as bigots and treated as such by governments, employers, and schools.” Unlike the Chief Justice’, Justice Alito chooses language that does not seem targeted at the advocates of the “new orthodoxy.” This is less a Lincolnian call for sympathy on the part of the victors than a mournful warning to the losers that they are in store for bad times.

In his opinion for the Court, Justice Kennedy seems to be attempting to reach out to multiple audiences. The rhetoric about the promises of liberty and the search for personal identity that so exercised Scalia seem intended to reinforce and inspire rather than persuade. But his extended discussion of the value of marriage seems aimed, at least in part, at encouraging opponents of same-sex marriage to reassess their assumptions:

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other….

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.

Whether the language of any given Supreme Court opinion, apart from the declaration of a winning side and a losing side, has much of an effect on society is hard to discern. Chief Justice Warren sought to write his opinion in Brown v. Board of Education in a way that might persuade defenders of segregation. He described his effort to his colleagues as designed to be “short, readable by the lay public, non‐theoretical, unemotional, and, above all, non‐accusatory.” But this effort hardly stemmed the tide of massive resistance to desegregation that gained strength in the ruling’s aftermath. Unlike Brown, the same-sex marriage opinion joins a clearer, stronger historical trend in support of same-sex marriage, however. Whether Kennedy’s rhetoric changes minds or not, minds are being changed all around us.




Some Thoughts on the “Liberal” Day at the Supreme Court

The headline from today’s major rulings involving the Affordable Care Act and the Fair Housing Act is that the supposedly “conservative” Roberts Court continues to produce a remarkably “liberal” series of decisions. The surprising success of the Court’s left-leaning justices this Term had been noted even before today, and most observers believe the liberals are still awaiting their most significant victory in the same-sex marriage case.

Although defenders of the ACA and of aggressive federal civil rights enforcement are surely walking with a skip in their step after today’s announcements, it is worth noting that the liberal victories at the Court today are rather less than they might appear. Both cases only got to the Court because conservative justices are interested in knocking down liberal legal achievements. It says something about the ideological climate of the day that so many liberal court victories are defensive victories: they preserve the status quo; in some cases, victory means minimizing losses. This is pretty much where we are today when it comes to abortion law, affirmative action, and many other areas of civil rights. There is something misleading about proclaiming a Court “liberal” because it agrees to hear conservative legal challenges—challenges liberals desperately wanted to go away—and then stays its hand in the end.

The great exception to the foregoing is, of course, the gay rights cases of recent years. These cases have transformed the legal status quo and have helped move the nation in a new direction. When the Court strikes down prohibitions on same-sex marriage, as they seem likely to do either tomorrow or Monday, the Roberts Court will declare victory in a battle liberals have sought to wage. On this day, the Roberts Court will truly defy its conservative label.

Horne v. Department of Agriculture—Personal Property and Per Se Takings

On Monday the U.S. Supreme Court issued its decision in Horne v. Department of Agriculture, reversing the Ninth Circuit and declaring an agricultural marketing program dating back to the 1930s an unconstitutional takings. Chief Justice Roberts wrote the decision for the court, joined, predictably, by Justices Alito, Scalia, Kennedy and Thomas. Justice Breyer, joined by Justices Kagan and Ginsburg wrote a decision concurring in part, dissenting in part. And Justice Sotomayor wrote the sole dissenting opinion.

Before I offer an analysis and critique of the Court’s discussion of per se takings, a quick word about the facts would be useful. The Raisin Administrative Committee (“RAC”), a group primarily comprising private raisin growers appointed by the Secretary of Agriculture, has the authority to set an annual “reserve tonnage” requirement to ensure a stable price for raisins. The remaining raisins, the “free tonnage,” are sold by producers on the open market. The RAC sells the reserved raisins in secondary, non-competitive markets, but must do so in a way that “maximizes producer returns.” RAC operating costs are paid for out of the sale of the reserves (it receives no federal funding) and any remaining income is disbursed to producers, in keeping with their share of contribution to the reserve pool.

Over the years the annual reserve requirements have shifted based on fluctuating growing and market conditions. Chief Justice Roberts reminds us frequently throughout the decision that in 2002-2003 and 2003-2004, the years at the center of the case, the reserve requirements were relatively high—47% and 30%. And the net proceeds from the sale of the reserved raisins were low one year, nothing the next.

It was during these years that raisin farmers Marvin and Laura Horne decided they no longer wanted to give up a portion of their crops. They were assessed a fine equal to the value of the raisins and a civil penalty for disobeying the order to turn them over. The Hornes challenged the reserve requirement (and thus the fine) as an unconstitutional taking of their property.

Continue reading

Weekly Roundup, June 19, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

This week, ISCOTUS director Chris Schmidt previewed the major cases left to be decided at the Supreme Court this Term.

Oyez live tweeted the Court’s opinion announcements on Thursday, joining forces with Kimberly Robinson of Bloomberg BNA and Chicago-Kent law professors. Among the decisions handed down was  Walker v. Sons of Confederate Veterans, in which the Court held that Texas’s refusal to issue a specialty license plate to the Sons of Confederate Veterans did not violate the First Amendment.

Straying from the legal issues in Davis v. Ayala, Justices Kennedy and Thomas sparred over the use of solitary confinement in prisons in their opinions on the case.

For the New York Times, Adam Liptak searches justices’ words for hints as to how they might rule in the remaining cases.

At SCOTUSblog, Ronald Collins unpacks the surprising twists and turns in First Amendment rulings this Term.

Justice Kennedy was once the voice of opposition to Obamacare. As the Court’s decision in King v. Burwell looms, could he now tip the balance toward a favorable ruling?

Justice Ginsburg spoke to the American Constitution Society in Washington, D.C., this week and expressed surprise at her celebrity status: “It’s amazing to think of me—an icon at 82?”


This Term at the Supreme Court—What Remains?

June marks the home stretch for the Supreme Court, the closing month of the annual term that began the previous October. No more cases are to be argued. From now until the Court finishes its work for the year, the justices convene the Court at least once a week (more as the end gets closer) to reveal cases they will be hearing next term and to announce the decisions from cases heard this term. We know the cases the Court still has left to decide; from here until the Court wraps up its business for the term we’re playing a process of elimination game.

Here are some of the major cases from this term still left to be decided:

Same-Sex Marriage (Obergefell v. Hodges). This is the big one. Will the Court use this case to declare state prohibitions on same-sex marriage a violation of the Constitution? Most observers believe the time is right for the Court to issue what will immediately become a landmark decision. Yet even assuming this is the likely outcome, questions remain: On which side will Chief Justice Roberts be? Will Justice Kennedy have the opportunity to continue his streak of writing the Court’s major gay rights opinions? What will be the legal reasoning the Court uses in justifying the ruling? How will the dissenters present a position that they surely know will not go down well in the history books?

Health Care (King v. Burwell). Although the same-sex marriage case has attracted more of the public’s attention, the challenge to the Affordable Care Act might be even more consequential. If a majority of the justices agree with the challenger’s reading of the law, the health care coverage for millions of people would be affected. Anyone living in a state that has not created its own health care “exchange,” and has instead allowed the federal government to run the exchange, would no longer be eligible for federal subsidies. The legal issue in the case is narrow and technical—it comes down to the proper way to interpret a handful of words in a law that is thousands of pages long—but its consequences are monumental.

Housing & Racial Discrimination (Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project). The Court has long held that the Constitution’s Equal Protection Clause does not prohibit racially neutral policies that have racially disparate effects. But certain federal civil rights laws can be used to challenge these kinds of policies as racially discriminatory. Among these is the Fair Housing Act of 1968, which prohibits racial discrimination in the renting and selling of property. Now the Court is reconsidering whether the FHA should be read to prohibit race neutral policies that have racially disparate effects. This would, in effect, align the federal law with the narrower constitutional standard, a change that some of the conservatives on the Court have been openly advocating. Such a ruling would substantially limit the kinds of policies that could be challenged as violating the FHA.

Lethal Injections (Glossip v. Gross). The Court is considering a challenge to the three-drug lethal injection protocol Oklahoma uses for its executions. Challengers argue that the procedure violates the ban on “cruel and unusual punishments” found in the Eighth Amendment of the U.S. Constitution. Oklahoma was forced to abandon it previous lethal injection protocol, which the Court upheld in 2008, because the manufacturer of one of the drugs used in that protocol, under pressure from death penalty opponents, refused to allow its product to be used in executions. (At oral argument, Justice Alito described this as the product of a “guerrilla war against the death penalty.”) As a result, Oklahoma adopted a new procedure, which critics say causes unnecessary suffering.

Raisin Farmers & Property Rights (Horne v. U.S. Department of Agriculture). The court will decide whether it is a “taking” of private property for a government-created committee of raisin farmers to seize as much as one-third of a raisin farmer’s annual crop, thereby removing the product from the market in order to prop up prices. The challengers seek to undo one of the last New Deal-era farm programs designed to allow farmers to pool their resources in order to combat market fluctuations. If the required seizure of raisins is held to be a taking, then the government is responsible for ensuring that the farmer receives just compensation. The government argues that the program is a regulatory measure, not a taking, and thus does not require compensation.

Politics & Redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission). In an effort to limit partisan wrangling over the drawing of congressional district lines, the voters of Arizona approved a referendum giving an independent commission control over redistricting. Members of the state legislature have challenged the independent commission, arguing that the Constitution gives the state legislature authority over congressional redistricting. The challengers point to the “Elections Clause” (Article I, Section 4), which reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The legal question the justices face is whether the “legislature” referenced in this constitutional provision can be understood to include the people of a state when they act to delegate control of this issue to an independent commission, or whether it gives exclusive control of the issue to the state assembly. 

License plates and Confederate flags (Walker v. Texas Division, Sons of Confederate Veterans). The question before the Court is whether state-issued specialty license plates should be treated as the speech of the state or its motorists. The Texas Department of Motor Vehicles refused to issue a specialty license plate to the Sons of Confederate Veterans, citing its authority to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.” (The proposed design included a confederate flag.) If the license plate is considered a form of state speech, then the government has considerable latitude under the 1st Amendment in choosing the content of its own speech. If the license plate is considered a form of individual speech, then the First Amendment places strict limits on government regulation of the content of that speech.