All posts by Chris Schmidt

OT 2016, Weekly Preview

The Week Ahead – March 6, 2017

Leave a comment

On Monday morning, the Court issued orders and announced two opinions from the bench. The most notable order was its decision in Gloucester County School Board v. G.G. to remand to the lower courts in light of the Trump Administration’s decision to rescind guidance related to transgender students’ bathroom access. This order does not end the litigation, however. Instead, it will be up to the lower courts to now evaluate the statutory and constitutional arguments in the absence of administrative guidance. Both sides had asked the Court to hear the case despite the change in the federal government’s position, as SCOTUSblog described.

In Beckles v. United States, the Court, in an opinion by Justice Thomas, held that void-for-vagueness challenges do not apply to the advisory sentencing guidelines. Justice Sotomayor and Ginsburg concurred in the judgment, and Justice Kagan did not participate. And in Pena-Rodriguez v. Colorado, the Court held 5-3, in an opinion by Justice Kennedy and joined by the four liberal justices, that Colorado’s rule against the admissibility of evidence related to jury deliberations could not stand where a juror stated that he was relying on racial stereotypes or discriminatory views. There were also several opinions issued with the Orders List. Notably, in a unanimous, per curiam opinion, the Court remanded Rippo v. Baker because it said that the lower court used the wrong standard in determining whether there was an unconstitutional risk of bias on the part of a judge in a capital murder trial. (The judge was under investigation and ultimately was indicted for bribery.)

Although the Court will not hear oral arguments this week, two of the justices will maintain high profiles at two separate events, both to be held on Friday. Chief Justice John Roberts will appear at an event in New York commemorating Second Circuit Court of Appeals Judge Henry Friendly, The New York Law Journal reports. Friendly served on the 2nd Circuit from 1959 to 1986, and he was chief judge from 1971 to 1973. Roberts clerked for Friendly from 1979 to 1980. Judge Merrick Garland, Chief Judge of the U.S Court of Appeals for the District of Columbia Circuit and President Obama’s pick to replace Justice Scalia, also clerked for Friendly and will be at the event as well.

Also on Friday, Justice Sotomayor will speak at Stanford University. She will converse with M. Elizabeth Magill, Dean of Stanford Law School, and she will answer questions posed by students. The law school’s Office of the President is hosting the event with senior class presidents of 2017.

Those interested in reliving relatively recent Supreme Court history can catch the finale of the ABC miniseries When We Rise. The series, which is available on Hulu, includes a finale that, as The Advocate explains, focuses on “how activists fought for and won marriage equality in the United States, beginning with the passage of Proposition 8, which sparked a new generation of advocates, and the legal fight leading up to the Supreme Court,” and includes Debra Winger playing Justice Elena Kagan. The legal fight over California’s Proposition 8 (which outlawed same-sex marriage after the California Supreme Court recognized it as required under the state constitution) was the 2013 case of Hollingsworth v. Perry. (The Court did not reach the merits in Hollingsworth, which left standing a lower court determination striking down Proposition 8 on very narrow grounds.) Hollingsworth was decided at the same time as United States v. Windsor, in which the Court struck down the portion of the federal law that prohibited the federal government from recognizing same-sex marriages. Two years later, the Supreme Court declared marriage equality the law of the land in Obergefell v. Hodges.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”

OT 2016, Weekly Roundup

Weekly Roundup – March 3, 2017

Leave a comment

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.)

The Supreme Court issued an important opinion this week in Bethune-Hill v. Virginia State Board of Elections. Bethune- Hill involves a challenge to Virginia’s state legislative districts. Specifically, the plaintiffs alleged that the Virginia General Assembly’s redistricting map was unconstitutional racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. In a 7-1 decision delivered by Justice Kennedy, the Court found that the lower court used the wrong standard when it upheld eleven of the twelve voting districts in question. The district court had improperly limited its determination of whether race was a predominant consideration in those districts by finding them constitutional to the extent they were consistent with traditional districting principles. The Supreme Court remanded the case back to the lower court to reevaluate the role of race without such a restriction and to take into account the intent of the legislature. The Court ruled that the twelfth district was permissible, even though it was drawn with race as the predominant consideration, because it served a compelling government interest in ensuring that minority voters had a better ability to elect their preferred candidate. Adam Liptak from the New York Times recaps the argument here. Lydia Wheeler of the Hill writes about Justice Thomas’ partial dissent. While Thomas agreed with the majority in terms of the outcome, in which the “[Court]. . . [reversed] the District Court’s decision to uphold eleven of the twelve districts at issue,” he dissented from the Majority’s decision to “leave open the question whether race predominated in those districts and, thus, whether they are subject to strict scrutiny.” Thomas states, ”When a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered.”

On Monday, the Court heard oral arguments for Packingham v. North Carolina and Esquivel-Quintana v. Sessions. Because both cases involved men who had had consensual sex with minors, Nina Totenberg of NPR dubbed Monday “sex day at the Supreme Court.” Packingham involves a First Amendment challenge to a North Carolina statute that prohibits registered sex-offenders from accessing websites where minors have accounts. In an op-ed piece for Slate, Perry Grossman explains that while parties acknowledged that the statute was created for the legitimate objective of protecting minors from sex offenders using the same internet websites, the question before the Court focuses on whether the statute is overly broad, “vaguely worded”, and contains “confusing exceptions.” Justice Sotomayor, for example, pointed out that the statute restricts the speech of many registered sex offenders who are in no danger of using the internet to re-offend. Grossman argues that the decision in this case has major implications for First Amendment rights under the Trump administration, stating “[t]he president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t. This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.”

Esquivel-Quintana concerns whether a conviction for “unlawful sexual intercourse with a minor” under a California statute that criminalizes consensual sex between a 20-year-old and a 16-year-old constitutes an aggravated felony of “sexual abuse of a minor” under a federal immigration law and therefore requires mandatory deportation of any immigrant convicted under that statute. The Economist discussed the federal government’s appeal to the Chevron doctrine. The doctrine provides that “when a statute is ambiguous, the courts should defer to the relevant administrative agency’s interpretation thereof rather than issue a definitive judgment themselves.” Here, the government argued, the immigration authorities’ interpretation of the term “sexual abuse of a minor” should receive deference, and at oral argument there was much discussion of the appropriateness and utility of Chevron in the context of a statute involving criminal law. (As article discusses, Chevron is likely to come up during Judge Gorsuch’s confirmation hearing, as he has expressed discomfort with the doctrine.)

On Tuesday, the Court heard Dean v. United States. Dean focused on the scope of judicial sentencing discretion under a particular statute. Douglas Berman from SCOTUSBlog provides an analysis of the argument, concluding that “the tenor of the argument suggested that the court will resolve this case by being, as Kagan put it, “‘strictly textualist here,’” which in this case could mean ruling for the defendant. If Congress wanted to restrict judges’ sentencing discretion, the argument goes, it could have said so much more clearly as it has in other statutes. And on Wednesday, the Court heard arguments for Coventry Health Care of Missouri, Inc. v. Nevils and issued an Coventry Health Care of Missouri, Inc. concerns the Federal Employee Health Benefits Act and whether the act preempts state laws that prohibit insurance companies from claiming the proceeds of personal injury settlements. The transcript for the argument for Coventry Health Care of Missouri, Inc. can be found here.

Also this week, the Court granted certiorari for three cases: Artis v. District of Columbia, involving a statute of limitations issue, Hamer v. Neighborhood Housing, about appellate jurisdiction, and Wilson v. Sellers, evaluating the scope of federal review of state convictions. The complete Order List can be found here.

Although many have speculated about Justice Ginsburg’s health and retirement, this week she reiterated that “I will do this job as long as I can do it full steam.” Ben Schreckinger of Politico discovered what Justice Ginsburg meant when she said “full steam” by attempting to do her physical workout regimen with her personal trainer, whom Ginsburg recently described as “the most important person in her life.” Schreckinger reported back that he felt, “sore, disoriented cranky, [but] I didn’t feel a day over 65.”

Return to ISCOTUS  weekly for the latest news on Judge Gorsuch in our weekly installment of The Gorsuch Report.

Confirmation Hearings, Gorsuch

The Gorsuch Report—Week 5

Leave a comment

It’s been almost a month since Judge Neil Gorsuch was nominated to a seat on the U.S. Supreme Court. Here’s the latest news on his confirmation process.

The most interesting news of the past week concerning the Gorsuch nomination was a plan floated by New Mexico Senator Tom Udall that sounded a lot like a West Wing episode (Season 5, Episode 17). Udall’s plan would involve Trump administration officials striking a deal with a liberal Supreme Court justice who might be looking to replace that justice with Judge Merrick Garland, allowing Obama’s and Trump’s nominees to get seats on the Court. Call it the Gorsuch-Garland Gambit. Udall believes such a plan show the country that the new President is really interested in acting to “unite the country.” (It’s not going to happen, but it’s fun to think about it.)  To no one’s surprise, the White House does not think much of Senator Udall’s plan.

Seven states may be seeing more of Judge Gorsuch in their mailbox this week. The Concerned Veterans for America group sent out a mailer yesterday to Colorado, Florida, Indiana, Missouri, Montana, North Dakota, and West Virginia, the Washington Examiner reports. The mailer encourages people to call their senators and “urge them to confirm Gorsuch.”

In other news, some Republicans who did not support President Trump for the Republican nomination have changed their tune with his choice of SCOTUS nominee. The Washington Times reports that “his [President Trump] selection of Judge Gorsuch has helped patch over differences and cemented bonds with his longtime backers.”

Jeffrey Toobin of the New Yorker suggests six questions senators should ask Gorsuch at his confirmation hearing later this month. Toobin’s suggested topics include abortion, privacy, Brown v. Board of Education, methods of constitutional interpretation, campaign finance, religious liberty, and immigrant rights. Although Gorsuch is unlikely to answer these questions directly, Toobin argues “that shouldn’t prevent the American public from thinking about what the answers ought to be.”

Finally, SCOTUSblog’s Mark Walsh offers a fascinating, detailed account of Judge Gorsuch’s experience as a clerk for Justices Anthony Kennedy and Byron White.

Death Penalty, History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—March 1, 2005

Leave a comment

On this day in 2005, the Supreme Court decided Roper v. Simmons, one of its most important rulings on the issue of capital punishment. In Roper, the Court held that Eighth Amendment’s prohibition on “cruel and unusual punishments” forbids imposing the death penalty for a crime committed by someone under the age of 18.

In 1994, a Missouri court found Christopher Simmons guilty of a murder; he was seventeen at the time of the crime. After a jury sentenced him to death, Simmons pursued a series of appeals. In 2002, the Missouri Supreme Court stayed Simmons’ execution pending the outcome at the U.S. Supreme Court of Atkins v. Virginia, a case considering the constitutionality of executing offenders determined to be mentally retarded. The Supreme Court would hold in Atkins that executing the mentally retarded violated the 8th Amendment, in part because of their “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” The Missouri Supreme Court pointed to this reasoning from Atkins, along with the recent state-level trend away from executing juveniles, as justification for reducing Simmons sentence to life without parole.

Missouri appealed the reduction in sentence to the U.S. Supreme Court, leading to the historic Roper decision striking down capital punishment for minors.

Writing for the a five-justice majority, Justice Kennedy drew on the same principles that had guided the Missouri Supreme Court. He referenced the growing number of states that were rejecting capital punishment for juvenile offenders as a factor in the Court’s reading of the Eighth Amendment. He also drew a parallel between the reasoning in Atkins and the case at hand, noting, “The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.”

Particularly controversial was Kennedy’s reference to the fact that the United States was an outlier in the international community on this issue. Most other countries had rejected the practice of executing juvenile offenders. Defending himself against accusations by Justice Scalia and others that references to foreign legal practices had no place in constitutional interpretation, Kennedy argued that “recognition of the aberrant place of United States on the global scene does not lessen our fidelity to the Constitution or our pride in its origins.”

OT 2016, Weekly Preview

The Week Ahead — February 27, 2017

Leave a comment

This week the Supreme Court will be hearing oral arguments in three cases. On Monday, the Court will hear argument in Packingham v. North Carolina, and Esquivel-Quintana v. Sessions. At the center of Packingham is the constitutionality of a North Carolina statute that prohibits registered sex offenders from using websites that allow users to communicate and exchange information if such websites allow minors to have accounts. The statute makes violation a felony. Packingham, who is arguing that law violates his First Amendment rights, was arrested in 2010 after writing a post on Facebook thanking God for the dismissal of a parking ticket. The statute was enacted to protect minors from sexual predators and the North Carolina Supreme Court held that it was not a restriction of free speech, but a “limitation on conduct.” In an unusual pairing, the ACLU and The Cato Institute filed a joint amicus brief in support of Packingham. They argue that the law is both unconstitutionally overbroad and vague, and it could be understood to restrict access to websites like The New York Times, Amazon, and Wikipedia.

In Esquivel-Quintana, the issue for the Court to decide is whether “unlawful sexual intercourse with a minor” under California law necessarily constitutes an aggravated felony of “sexual abuse of a minor” and therefore provides the basis for mandatory deportation of any immigrant convicted of that crime. Juan Esquivel-Quintana pled guilty to unlawful sexual intercourse with a minor in California. The Department of Homeland Security started removal proceedings against him under the Immigration and Nationality Act which states that “a non-citizen may be removed from the United States if he is convicted of an aggravated felony such as sexual abuse of a minor.” According to Law 360, Esquivel-Quintana is arguing that as a matter of construing the federal immigration statute, “sexual abuse of a minor” does not include “consensual sex between a 21-year-old and someone who is almost 18.”

The third case for argument this week, is Dean v. U.S., which involves the scope of a district court’s sentencing discretion for convictions in cases involving possession of a firearm in furtherance of a violent crime under 18 U.S.C. § 924(c). The technical issue involves the interaction of the Supreme Court’s decision in Pepper v. United States—holding that a judge can adjust sentencing guidelines downward if the defendant is rehabilitated after his initial sentencing—with a series of Eighth Circuit opinions that limit the district court’s discretion. Dean was given a 400-month sentence for possession of a firearm in furtherance of a violent crime under the Hobbs Act after robbing two drug dealers at gunpoint. Had he not been convicted under the Act, his sentence would have been 84-105 months.

In other news this week, the Supreme Court clerk’s office reprimanded the attorneys who submitted several amicus briefs filed in support of the school district in Gloucester County School Board v. G.G., the case about transgender student’s bathroom access. The caption on those briefs referred to G.G. as “her,” rather than “him.” (Because G.G. is a minor, his formal party status is “G.G., by his next friend and mother, Dierdre Grimm,” which is how the caption of the case reads in the Supreme Court.) These caption changes were not errors; they are consistent with the amici’s views about the case. Mark Joseph Stern, who covers legal and LGBTQ issues for Slate.com, noticed the miscaptioned briefs and brought them to the Clerk’s Office’s attention.

Return to ISCOTUS midweek for the latest news on Judge Gorsuch in our weekly installment of The Gorsuch Report.

 

OT 2016, Weekly Roundup

Weekly Roundup – February 24, 2017

Leave a comment

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.)

After observing the Presidents’ Day holiday on Monday, the Court heard oral arguments in two cases on Tuesday and one Wednesday. Before Tuesday’s arguments, however, Acting Solicitor General Noel Francisco presented the newly confirmed Attorney General, Jefferson Sessions, to the Court. Chief Justice Roberts wished Sessions well on behalf of the Court.  Sessions did not stay for the oral argument.

The Court started off Tuesday with Hernandez v. Mesa, a case in which a U.S. Border Patrol agent fatally shot a 15-year-old boy on Mexican territory. The case presents complicated issues about the extent to which constitutional rights are available to people who are not in and do not have a connection to the United States. As ABC News explained, Robert Hilliard, representing Sergio Hernández’s parents, argued that the case was an easy extraterritorial case for five reasons: “the conduct of the police officer happened inside the U.S.; it was a civilian domestic police officer; it was a civilian plaintiff, not an enemy combatant; it was one of the most ‘fundamental rights, the right to life’ and lastly; the government of Mexico supports the claim.” Nonetheless, the justices appeared very concerned about the broader implications of ruling in favor of the plaintiffs.

Also on Tuesday the Court heard arguments in McLane v. Equal Employment Opportunity Commission, which presented the question of whether the Ninth Circuit was correct to apply de novo review when it ruled that a district court had construed “relevance” too narrowly in reviewing a subpoena issued by the Equal Employment Opportunity Commission during its investigation of a sex discrimination charge. Charlotte Garden of SCOTUSblog analyzes the arguments presented in this fairly technical-sounding case — although one that could have significant implications for EEOC investigations in the future. Interestingly, neither the EEOC nor the employer defended the Ninth Circuit’s position, and the Supreme Court had to appoint a friend of the court to defend that judgment.

On Wednesday, the court heard arguments in Kindred Nursing Centers v. Clark, in which the Kentucky Supreme Court ruled against enforcing arbitration agreements that relatives of two nursing home residents with power of attorney signed on their behalf. Matthew Loughran of Bloomberg BNA reports that this decision “could have a much broader application to limit the use of powers of attorney in the state generally.” Loughran discusses how the Justices’ questions during oral arguments focused on the scope of the state court decision beyond just arbitration agreements. U.S. News & World Report notes that President Trump’s daughter, Ivanka Trump, attended arguments oral arguments in the Kindred case Wednesday. She attended as an invited guest as Justice Kennedy. CNN reports that Ivanka met the Justice at the inaugural lunch at the Capitol last month. During her visit to the Court, she sat in a VIP section for invited guests.

On Wednesday, the Trump administration withdrew guidance that the Obama administration had issued requiring schools that receive federal funding to allow transgender students to use the bathroom consistent with their gender identity. This Obama-era guidance is at issue in the case of Gloucester County School Board v. G.G., currently scheduled for oral argument on March 28. On Thursday, the Clerk’s Office asked the parties to submit letters to the Court by Wednesday explaining what, if any, effect this withdrawal has on the case. Even before that order, however, the Chicago Tribune reported that G.G.’s lawyers told the press that the Supreme Court should hear the case and decide the scope of federal protections for transgender students.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”

 

Confirmation Hearings, Gorsuch, Justices

The Gorsuch Report—Week 4

Leave a comment

It’s been over three weeks since Judge Neil Gorsuch was nominated to become a U.S. Supreme Court associate justice. Here’s the latest news on his confirmation process.

Among the senators who will vote on his appointment, Minority Leader Chuck Schumer remains Gorsuch’s most vocal critic. The Democratic senator from New York previously took to the pages of the New York Times to air his concerns with Gorsuch. While praising Gorsuch as “clearly very smart, articulate and polite, with superb judicial demeanor,” Schumer criticized him for refusing “to answer even the most rudimentary questions” about where he stands on pressing legal issues.  For Schumer, this all feels “eerily similar” to what happened when Chief Justice Roberts went through this same process. Roberts was “similarly charming, polished and erudite,” Schumer writes. He “played the part of a model jurist.” But “when Judge Roberts became Justice Roberts, we learned that we had been duped by an activist judge,” warns Schumer.

The Minority Leader remains unpersuaded. When he appeared on “The View” talk show on Tuesday, Schumer explained that Gorsuch’s refusal to tell him whether a ban on Muslim immigrants would violate the Constitution gave him an “eerie feeling.” Although no other senators have reported eerie feelings when talking with Judge Gorsuch, other Democrats have expressed concern about his unwillingness to answer questions on issues of executive authority and separation of powers.

Senator Kelly Ayotte, the New Hampshire Republican who is serving as Gorsuch’s escort for his meetings with Senators, came to the judge’s defense. “The judge has ethical responsibilities that he cannot answer questions about cases that may potentially come before the court,” she explained in an interview with CNN. “I’ve been in 58 meetings with him. He’s been very forthcoming. He has answered questions.” She added that Schumer simply “asked him questions he knew he couldn’t answer.” It’s all something of a scripted performance, explains Senate Majority Leader Mitch McConnell: “Everyone knows you are going to ask your best question and they are not going to answer it.”

In Politico, Seung Min Kim assesses Gorsuch’s best chance for securing the support of some Democrats in the Senate, arguing that the judge should focus on Democratic senators who face an upcoming reelection in states that Trump won. He adds that Gorsuch’s “biggest liability remains Trump, whom Democrats will seize on during the confirmation fight.”

Gorsuch himself has resisted efforts to define and categorize his work as a judge. “I resist pigeon holes,” he said during his confirmation hearings for his appointment to the Tenth Circuit. “I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy. People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.” The Washington Post offers an in-depth profile of the judge that concludes that we should not be too quick with those pigeonholes: “Gorsuch himself is perhaps not so predictable. An examination of his development from gifted Colorado schoolboy to college firebrand and then staunchly conservative jurist reveals that he is quite capable of surprise.” (The pitfall of pigeonholes was also the theme of an earlier New York Times article on Gorsuch’s views on gay rights.)

First Amendment, History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—February 20, 2002

Leave a comment

On this Day in 2002, the Supreme Court heard oral arguments in Zelman v. Simmons-Harris, one of the most significant Establishment Clause cases in recent years. The Court considered whether a state program that provides school vouchers to parents that can be used to pay for education at religious schools violates the First Amendment’s prohibition on government “establishing” religion.

Ohio established the Pilot Project Scholarship Program to provide educational choices to families with children who lived in the Cleveland City School District. Both the district court and  the Sixth Circuit Court of Appeals held that by effectively channeling state funds to religious schools, Ohio had violated the Establishment Clause .

At the Supreme Court, lawyers defending the voucher program insisted that the program was religiously neutral because the state selected voucher recipients based on income and place of residence, not religion. The parents, not the state, made the decision about whether the ultimate recipient of the voucher was a religious school or a non-sectarian school. U.S. Solicitor General Theodore Olson, who argued in support of Ohio’s position in the case, argued that because parents had a choice of sectarian and non-sectarian schools, a “reasonable observer” would not “believe that the government is putting its thumb in favor of religion on the scales here.”

Justice Stephen Breyer challenged this line of argument. Imagine you are a foreigner who comes to the United States and learns that billions of government dollars are going to the support of religious schools, Breyer asked one of the lawyers defending Ohio’s program. “Wouldn’t you then say the United States of America, like France or like England, the government of the United States endorses a religious education for young children by putting money up, massive amounts?”

The lawyer countered that the Ohio program allots more funding to parents whose children attend non-sectarian schools than those whose children attend religious schools, which he insisted showed that this program did not amount to governmental endorsement of a religion.

Justice Souter was also skeptical of Ohio’s arguments. He noted that 96 percent of the families who used the vouchers chose parochial schools, and asked whether that suggests “that there is perhaps something specious about this notion that it’s a matter of wide-open choice here.” Solicitor General Olson replied that the Court had previously ruled that parents’ “purely private choices” will not be “associated by a reasonable observer with a governmental decision.”

The lawyer representing the challengers to the voucher program pressed the following argument: “Millions of dollars of unrestricted public funds are transferred each year from the state treasury into the general coffers of sectarian, private schools, and that money is used by those schools to provide an educational program in which the sectarian and the secular are interwoven. It is a given that if those funds are properly attributable to the state, the program violates the Establishment Clause.”

The audience erupted in laughter when Justice Stevens posed hypotheticals trying to locate where exactly the challengers’ lawyer would not find the Establishment Clause to have been violated. The lawyer said a voucher program in which one out of ten schools funded were sectarian would be a “borderline” case, to which Stevens responded: “Say there are a hundred: ninety-nine non-sectarian, and one sectarian… Give us something that isn’t borderline.”

On June 27, 2002, the Court ruled, in a 5-4 vote, that the voucher program did not violated the Establishment Clause. The majority reasoned that the program was enacted for the valid secular purpose of providing educational assistance to impoverished children in a failing public school system, and that the program offered private choice that did not advance religion. Justices Souter, Ginsburg, Stevens and Breyer dissented.

OT 2016, Weekly Preview

The Week Ahead – February 20, 2017

Leave a comment

The February sitting of the Supreme Court will begin on Tuesday, February 21, as the Court will be observing President’s Day on Monday. Orders from Friday’s Conference are expected on Tuesday, and opinions may be handed down on Wednesay.

On Tuesday, the Court will hear arguments in Hernandez v. Mesa and McClane Company v. EEOC. Hernandez concerns the shooting death of Sergio Adrian Hernandez Guereca, a fifteen-year old Mexican national, and whether the border patrol agent who shot him on Mexican territory violated the Fourth Amendment protection against unjustified deadly force. (There are also other issues presented.) Orin Kerr at the Washington Post provides a pre-argument analysis of Hernandez. “One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad,” he writes. He notes that important questions of, for example “what kind of Internet surveillance is permitted hinges on the question.” Yet the case presents the Fourth Amendment question in a factual “setting that appears to implicate almost none of the real stakes of the answer.”

McClane, the second case being argued on Tuesday, considers EEOC subpoenas and whether or not circuit courts should review them de novo (without deference to the district court’s decision) or review them deferentially to the district court’s decision, as is the practice of all circuit courts except for the Ninth Circuit.

On Wednesday, the Court will hear arguments in Kindred Nursing Centers v. Clark. Kindred concerns the Federal Arbitration Act and whether it precludes a state supreme court from holding an arbitration agreement unenforceable based on the lower court’s skepticism of the benefit presented by pre-dispute arbitration agreements. Ronald Mann from SCOTUSBlog provides an argument preview. He also explains that although the Court has recently decided similar arbitration cases in favor of upholding arbitration agreements, this will be the first such case presented to the 8-member Court. Nonetheless, he suggests that the case is likely to come out the same way. Although many of these cases were decided 5-4, with Justice Scalia in the majority (and often as the author), the last such cases were not so close. Indeed, Mann notes that Justice Breyer “consumed a good bit of last year’s argument in DIRECTV[, Inc. v. Imburgia], musing about the problems that the justices face when lower courts intentionally flout unpopular lines of cases like the court’s arbitration cases.”

On Thursday, Justice Ginsburg will speak at the Linser Auditorium at The George Washington University to discuss her most recently published book, My Own Words, along with book contributors Mary Hartnett and Wendy W. Williams. My Own Words features a selection of her writings and speeches spanning her life and career, and is the first book that Ginsburg has published since her appointment to the Court in 1993.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”

Confirmation Hearings, Gorsuch, Justices

The Gorsuch Report—Week 3

Leave a comment

Here are the latest headlines for President Trump’s Supreme Court nominee Neil Gorsuch.  

The Clerks Speak Out. Judge Gorsuch’s past law clerks signed a letter to the Senate Judiciary Committee declaring that his independence “will never waiver.” (The only former Gorsuch clerks who did not sign are two currently clerking at the Supreme Court.) The Federalist published a supportive statement from two of his former clerks, one liberal, one conservative. They identified three lessons they learned from clerking for Judge Gorsuch: “the importance of accessible and clear writing, devoid of legalese”; “the importance of stepping back from the law and facts on your side to analyze the holes in your case and the facts and law supporting the other side”;  and he “urged us to pursue a fulsome understanding of the nuance and complexity of the legal and factual issues in each case.”

Pegging Gorsuch. In a widely cited study, political scientists Lee Epstein, Andrew D. Martin and Kevin Quinn predicted that Judge Gorsuch would fall somewhere between Justices Alito and Thomas on the conservative end on the ideological spectrum of current Supreme Court justices (in the same territory that Justice Scalia occupied). Now we have another study, this one by political scientists Ryan Black and Ryan Owens, who argue that Gorsuch in fact would on the the far right on the ideological spectrum–more conservative even than Justice Thomas.

Remembering Justice Scalia. The late Justice Antonin Scalia died on February 13, 2016, just one year ago. Writing in Forbes, Evan Young, a Scalia clerk, remembers the justice and endorses his nominated replacement. “Neil Gorsuch is the perfect next Justice to occupy this special seat, just as Antonin Scalia was the perfect next occupant in 1986.”

Next Steps. We now have a date for the beginning of confirmation hearings before the Senate Judiciary Committee for Judge Gorsuch: March 20. “If the hearing goes smoothly, and the full Senate votes to confirm him soon afterward, Gorsuch could be on the court before the end of the court’s current term in June,” writes Lawrence Hurley of Reuters. In the Chicago Tribune, conservative commentator Marc A. Thiessen predicts that “at a bare minimum, Democrats will maintain a united front to delay Gorsuch’s nomination as long as they can.” This may lead Republicans to choose the “nuclear option” of getting rid of the filibuster for Supreme Court confirmation votes. “If Democrats try to block or even delay a vote, go ahead and push the nuclear button,” urges Thiessen.