All posts by Professor Carolyn Shapiro

Oral Arguments Review: Week of December 4, 2017

On Tuesday, the Supreme Court heard oral argument in one of the biggest cases of the Term: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In this case, a baker who makes custom wedding cakes refused to provide a cake for a same-sex couple celebrating their marriage. The Colorado Civil Rights Commission found that he had violated the state’s anti-discrimination law. The baker appealed to the Supreme Court, alleging that he was forced to engage in “compelled speech” and that his free exercise of his religion was improperly burdened, both in violation of the First Amendment.

The argument, which lasted almost 90 minutes, involved extensive discussion about the scope of the right that the baker was claiming. To the extent that he claimed to be engaging in expressive conduct, Justice Kagan pressed his attorney about whether make-up artists, hair stylists, chefs, and florists would also be covered by his theory. Surprisingly to many, including Justice Breyer, when Justice Alito asked whether architectural design was expression protected by the First Amendment, the baker’s lawyer said no. The Justices and attorneys also discussed whether race discrimination could be justified on religious or free expression grounds, a position that both the baker’s attorney and the United States government, which appeared to support the baker, attempted to distinguish.

There has been an enormous amount of commentary about this case and the argument. David Savage of the Los Angeles Times explains why a 1990 majority opinion written by Justice Scalia, Employment Division, Department of Human Resources v. Smith, makes the free exercise of religion claim particularly challenging for the baker. (In Smith the Court held that there are generally no free-exercise exemptions from compliance with generally applicable laws.) A video of a “spirited” debate between the Cato Institute’s Ilya Shapiro and the NAACP Legal Defense and Educational Fund’s John Paul Schnapper-Casteras can be found here. Shapiro and Schnapper-Casteras filed amicus briefs on opposite sides of the case on behalf of their respective organizations. Commentary from the National Catholic Register is here and from Craig Konnoth, a University of Colorado law professor, here.

Another high-profile case was argued on Monday, December 4. Christie v. National Collegiate Athletic Association, as ISCOTUSnow explained last week, the key issue involves Congress’s ability to prevent states from deregulating sports gambling. Ilya Somin argued in a piece entitled “Place Your Bets on Federalism,” at the Washington Post’s Volokh Conspiracy that the argument went well for New Jersey, which wanted to legalize some gambling. And the sports media also continues to cover the case. CNN reports here, noting that Governor Chris Christie himself sat in the front row during the argument.

Audio and transcripts arguments in Christie, Masterpiece Cakeshop, and the other, less high-profile cases from last week —Rubin v. Islamic Republic of Iran, Murphy v. Smith,  and Marinello v. United States — can be found Descriptions of these cases can be found here.

Conference Report: December 1 and 8 Conferences

Over the last two weeks, the Supreme Court has granted cert in eight new cases and has issued a number of rulings of note. First, on Friday, December 8, in a 5-4 order, the Court granted a stay of a discovery order in a case challenging the Trump Administration’s decision to end the DACA program — the program that grants deferred action for undocumented immigrants who arrived in the United States as children and who meet a number of other criteria. In the case, known in the Supreme Court as In re United States, the government sought a stay of a district court order requiring it to produce certain documents. The Supreme Court granted the the stay, pending resolution of a petition that the government filed, and it ordered any response to that petition to be filed by December 13. Justice Breyer wrote a 9-page dissent, in which he was joined by Justices Ginsburg, Sotomayor, and Kagan.

On December 4, the Court also issued stays in both of the pending travel ban appeals, allowing the current travel ban to go into effect. The Court also told the courts of appeals to render their “decision[s] with appropriate dispatch.” Justices Ginsburg and Sotomayor both noted dissents from these orders, although they did not write opinions. The Ninth Circuit heard oral argument in Hawaii v. Trump on December 6, and the Fourth Circuit heard oral argument on December 8.

On Friday, December 8, the Court announced that it would hear seven new cases. Most notable is a case called Benisek v. Lamone. Benisek involves a challenge to a partisan gerrymander in Maryland. The case that is similar, although not identical to, Gill v. Whitford, in which the Court heard argument in October (more about the case here). Perhaps significantly, one way the cases differ is in the party that controlled the redistricting: in Gill, Republicans controlled, while in Benisek, Democrats were in charge. As election law expert Rick Hasen explains, however, this decision to hear Benisek was a surprise, as most expected the Court simply to “hold” the case and then remand for consistency with whatever it decided in Gill. Adam Liptak of The New York Times has more here.

The Court also granted cert in Koons v. United States and Hughes v. United States. The cases raise similar issues related to sentencing reductions where the Sentencing Commission changes the Guidelines, but Hughes also asks a much more complex question about how to interpret Supreme Court decisions where there is no majority for any rationale — asking for a clarification of the 1977 decision in Marks v. United States. Scholarly commentary on this question from Ryan Williams of Boston College Law School is available here. And in China Agritech, Inc. v. Resh, the Court agreed to hear a case about whether the statute of limitations is tolled for potential class members when a putative class action is filed but no class is certified in situations where the those putative class members later wish to bring their own class action lawsuit. The Court has previously held, in American Pipe & Construction Co. v. Utah,  that such tolling applies where the class members want to file their own individual actions.

The other cases granted on December 8 included Upper Skagit Indian Tribe v, Lundgren, involving tribal sovereign immunity in a property dispute, United States v. Sanchez-Gomez, about appellate jurisdiction, Sveen v. Melin, about the scope of the Contract Clause.

And finally, on December 1, the Court announced that it would hear Salt River Project Agricultural Improvement and Power Dist. v. SolarCity Corp. Salt River is about whether interlocutory appeals are available from denials of immunity under the “state action” doctrine in antitrust law.

Conference Report – November 21, 2017 Conference

On Monday, the Court issued orders from its pre-Thanksgiving Conference. It did not grant any new cases for full argument. In the most notable denial of certiorari, the Court declined to hear Kolbe v. Hogan, a challenge to a Maryland law that bans semiautomatic rifles and magazines. The law was passed in the wake of the Sandy Hook shooting and was upheld in a 10-4 en banc decision of the Fourth Circuit. As The Hill and The Baltimore Sun explained, the Fourth Circuit held that such military-grade weapons were not covered by the Supreme Court’s decision in District of Columbia v. Heller. Heller held that the Second Amendment confers an individual right to have a handgun in one’s home for purposes of self-defense. The only Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, which simply applied the Second Amendment, and the Heller holding, to the states. Commentators on both the left and the right have discussed this apparent lack of desire by most of the Justices to revisit the Second Amendment, although in June, Justice Thomas, joined by Justice Gorsuch, dissented from a denial of certiorari in on that basis.

On Monday, however, Justice Thomas dissented from the denial of certiorari in a case involving a different area of law, Upstate Citizens for Equality, Inc. v. United States. The Secretary of the Interior used the Indian Reorganization Act (“IRA”) to take into trust more than 13,000 acres of land, which had been under the state’s sovereign control for more than two centuries, for the Oneida Nation of New York. The Second Circuit upheld this action over the plaintiffs’ argument that this use of the IRA was an unconstitutional exercise of Congress’ power under the Indian Commerce Clause.

Justice Thomas said he would have granted certiorari to reconsider the Court’s Commerce Clause precedents, which, he said, courts are applying in a way that gives Congress plenary power to pass laws related to Indian affairs. Justice Thomas asserted that the Clause extends only to regulating trade with Indian tribes whom the state has not incorporated. The IRA, Thomas wrote, allows the Secretary merely to “take into trust land that an Indian tribe already owns.” Thomas expressed concern that the Second Circuit’s application of Supreme Court precedent showed how far the Court’s precedents interpreting the Clause have strayed from the original understanding. Under the precedents, Thomas said, “Congress could reduce a state to near nonexistence by taking all land within its borders and declaring it sovereign Indian territory…When our precedents permit such an absurd result, something has gone seriously awry. It is time to fix our error.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 and by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.


Justice Elena Kagan at Chicago-Kent College of Law & ISCOTUS

On Monday, October 16, Chicago Kent was honored to host Justice Elena Kagan. She spoke to a packed house for an hour, answering my questions about the Court, how she works, and her background. We will post video of the interview when it’s available, and we’ll also have our own write-up of the day. But in the meantime, coverage is available at the Chicago Daily Law Bulletin, the Chicago Tribune, the New York Times,  and SCOTUSblog. Election law expert Rick Hasen, who was at Chicago-Kent to deliver the keynote address at the ISCOTUS/Law  Review  Symposium on The Supreme Court and American Politics the following day, live-tweeted the talk. Below, enjoy the talents of my colleague Evelyn Brody, who sketched this picture during a faculty lunch with Justice Kagan.

Orders from the October 6 Conference

The Supreme Court released orders from last week’s Conference on Tuesday.  The Court dismissed the government’s appeal in one of the travel ban cases, Trump v. International Refugee Assistance Project. In this case, the Fourth Circuit upheld a district court’s injunction of portions of President Trump’s travel ban Executive Order. The Court granted certiorari in this case last June, but because the particular provisions of the travel ban that the Fourth Circuit enjoined have now expired, it remanded the case back to the Fourth Circuit on Tuesday with directions to dismiss the case as moot. The Court expressed no view on the merits. Justice Sotomayor would have dismissed the case as improvidently granted, leaving the Fourth Circuit opinion in place. The Court did not issue an order related to the travel ban case from the Ninth Circuit, Trump v. Hawaii. That case challenges a provision of the President’s March 6 executive order that is still active, but set to expire later this month.

The Justices also agreed to hear two original jurisdiction cases.  The cases, Florida v. Georgia and Texas v. New Mexico and Colorado, both address water rights between states.  Original jurisdiction cases are distinguished from other cases because they are filed directly in the Supreme Court. In original jurisdiction cases, the Court could conduct a jury trial to resolve the issue, as the Court did in Georgia v. Brailsford in 1794. More often, however, the Court appoints a special master to analyze the evidence, hold a hearing or trial if necessary,  and put together a report, to which lawyers from each side can respond. Once the report and challenges have been submitted to the court, the justices may schedule the case for oral arguments. Stephen Wermiel provides more information about the Court’s original jurisdiction at SCOTUSblog.

Texas v. New Mexico v. Colorado addresses whether New Mexico and Colorado are in violation of the Rio Grande Compact and the Rio Grande Project Act, which apportion water to Rio Grande project beneficiaries. Texas filed a suit alleging that New Mexico’s increased water usage and groundwater pumping below Elephant Butte Reservoir deprives Texas of water apportioned to it under the Rio Grande Compact of 1938. New Mexico allows farmers to pump groundwater to irrigate about 60,000 acres of the state’s cotton, pecan and chile crops in the southern part of the state.  There case also involves a dispute between the federal government and New Mexico as to whether New Mexico’s groundwater pumping interferes with the United States’ ability to meet its contractual obligations to deliver Rio Grande water to Mexico, per a treaty signed in 1906, as well as a water-rights dispute between Texas and Colorado.

Florida v. Georgia also concerns water rights between states.  The issue in this case is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and whether injunctive relief against Georgia is appropriate to sustain an adequate flow of freshwater into the Apalachicola Region.  Florida filed its lawsuit against Georgia in 2013, alleging that Georgia diverts so much water from the river system that it has damaged Apalachicola Bay, located to the southwest of Tallahassee, and harmed the seafood industry of Franklin County, Florida. Georgia argues that limiting its water use will undermine the growth of the state’s agricultural industry and harm the growth of Atlanta and the surrounding area. The Special Master’s report in this case, also filed in February 2017, recommended that the Court reject the strict water consumption limits that Florida requested.  The stakes for both states are high, with Georgia arguing that limiting its water usage could cause up to $2.5 billion in economic losses, while Florida argues that it will lose $100 million.

Finally, the Court called for the views of the Solicitor General in Apple Inc. v. Pepper.  When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court asks the Solicitor General to file an amicus brief to explain the United States’ views on whether the case deserves review.  This most often happens in cases where, even though the United States is not directly involved, federal interests are significantly affected or the federal government possesses particular expertise. CVSG has occurred in about 25 cases per Term in recent years.  The American Bar Association provides more information about CVSGs here.

Apple Inc. v. Pepper is an antitrust case which asks if consumers have standing to bring a private class action lawsuit under the Sherman Act.  Currently, Apple only approves apps if the developer gives Apple exclusive distribution through the App Store.  As the proprietor of the App Store, Apple is then able to markup the price of the app in order to take a commission on each sale.  Consumers have brought a class action, alleging that these policies create a monopoly on the apps available to iPhone users.  The Ninth Circuit held that individual consumers had standing to sue Apple. Apple contends that they are merely a distributor rather than a direct seller and therefore cannot be sued under the Sherman Act.

The Court meets again in Conference at the end of this week and we expect it to issue Orders at the beginning of next week.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.


December Argument Schedule & Orders

On Friday, the Court released the argument calendar for the December sitting, which will begin on November 27. Perhaps the most high-profile case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, scheduled for December 5. Masterpiece Cakeshop, involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the sincerely held religious objection to same-sex marriage held by the bakery owner. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA).

The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the free speech or free exercise clause of the First Amendment.

The case is highly contentious and has been discussed extensively ever since the Court granted certiorari to the case on June 26, 2017. The Department of Justice filed an amicus brief September 7 in support of the bakery, arguing that Colorado’s public accommodation law infringes on Phillip’s freedom of expression, and that “eradicating private individuals’ opposition to same-sex marriage” is not a uniquely compelling interest that justifies this infringement. Garrett Epps from The Atlantic notes, by referencing an observation by Georgetown Law Professor Martin Lederman, that “this appears to be the first time ever—in 10-20 such cases—that the U.S. government told the Court it supports a constitutional exemption from an anti-discrimination statute.” Some,like Professor Richard Garnett of Notre Dame Law School, however, argue at SCOTUSblog that “to condition the lawful exercise of his chosen profession on the waiver not only of unfettered freedom of contract but also of the First Amendment right to express – or not – his religiously informed views seems to ask too much. Such a demand crosses over from ensuring access to imposing orthodoxy, from enriching civil society to homogenizing it.”

On November 29, the Court will hear another significant case, Carpenter v. United States.The issue in Carpenter is whether the warrantless seizure of cell phone records from a cell phone towers, revealing the location and movements of defendants in connection to a string of robberies is unconstitutional under the Fourth Amendment. Defendant-appellants Timothy Carpenter and Michael Sanders were convicted of numerous robberies, among other charges, after the FBI collected historical cell-site records demonstrating that the defendants’ cell phones transmitted signals to cell towers near the locations of the robberies at the times that the robberies happened. Carpenter and Sanders contend that the trial court should have excluded this evidence because investigators procured the records without a warrant, in violation of the Fourth Amendment. Orrin Kerr, a professor at George Washington University Law School, describes Carpenter as “probably the biggest Fourth Amendment case that the court has had in at least five or six years.” According to Kerr, a former clerk to Justice Kennedy, “this is the first case that has touched on Fourth Amendment rights, what is a search in the context of new technologies, in several years and the one that is getting to the fundamental basis of what is constitutional.”

And on December 4, the Court will hear Christie v. NCAA (consolidated with NJ Thoroughbred Horsemen’s Association v. NCAA). Christie concerns whether the Professional and Amatuer Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature enacted SB 2460 in 2014, which partially repealed certain prohibitions on sports gambling. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the state law is a violation of PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA unconstitutionally commandeers the state regulatory scheme for overseeing sports gambling. While the suit centers on the limits of federal and state power, David Purdum at ESPN predicts that the outcome of this case “will not only shape the future of American sports betting, but also begin to divvy up a market that experts say could be worth as much as $5.8 billion in annual revenue.”

The remaining cases for the December sitting are Oil States Energy Services v. Greene’s Energy Group and SAS Institute Inc. v. Matal (both to be argued on November 27); Cyan, Inc v. Beaver County Employees Retirement Fund and Digital Realty Trust v. Somers (both to be argued on November 28); Rubin v. Iran (December 4); Marinello v. United States (December 5); and Murphy v. Smith (December 6).

In addition to announcing the December argument calendar, the Court issued several Orders last week. On Wednesday, October 4, the Court granted an application to vacate the injunction that the Eleventh Circuit entered in the execution of Jeffrey Lynn Borden. Alabama was scheduled to execute Borden on Thursday, October 5, but on October 2, the Eleventh Circuit reversed the district court’s dismissal of Mr. Borden’s claim that the state’s execution protocol is unconstitutional cruel and unusual punishment. The Alabama Attorney General’s office appealed the Eleventh Circuit’s reversal. While Justices Ginsburg, Breyer, and Sotomayor would have denied the application to vacate, the Court vacated the injunction. U.S. District Court Judge Keith Watkins subsequently issued a stay of execution on Thursday, October 5, which the state Attorney General’s Office has not yet appealed.

On Thursday, October 5, the Court issued several orders pertaining to last-minute appeals and petitions which Florida death row inmate Cary M. Lambrix filed. Hours before his scheduled execution on Thursday, October 5, Lambrix filed a final application for a stay of execution and a petition for a writ of habeas corpus, which the Court denied.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.

This Week at the Supreme Court – Week of October 9, 2017

This coming week, the Court will hear oral arguments in three cases, all of which present major civil and appellate procedural issues.
On Tuesday, following a day off on Monday for Columbus Day, the Court will hear oral arguments in Hamer v. Neighborhood Housing Services of Chicago. The case presents the question of whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive an appellate court of jurisdiction over an appeal that is statutorily timely, or whether the Rule is instead a nonjurisdictional claim-processing rule subject to considerations such as forfeiture, waiver, and the unique-circumstances doctrine. The circuits have been split on this issue, with the Ninth and D.C. circuits having concluded the latter, and the Second, Fourth, Seventh and Tenth having concluded the former. By federal statute, a district court may extend the time to file a notice of appeal in a civil case “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, . . . upon a showing of excusable neglect or good cause.” Petitioner Charmaine Hamer timely moved the court for a 60-day extension to file a notice of appeal, which the court granted. Despite Hamer’s timely filing of the notice, the Seventh Circuit appellate court sua sponte dismissed the appeal for lack of jurisdiction because Hamer filed her notice of appeal outside the time that the Federal Rules of Appellate exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” Hamer will argue: a) that the 30-day limit on extensions is nonjurisdictional because deadlines appearing only in court rules without statutory support do not impose jurisdictional limits. b) the Court has held that nonjurisdictional claim-processing procedural rules are not mandatory, and c) NHSC waived or forfeited its timeliness-based objection in several ways. NHSC will argue: a) The rule is jurisdictional and delineates cases by defining different courts’ powers b) Even nonjurisdictional firm deadlines must be honored and c) NHSC had no opportunity to object to the extension because the motion for the extension was not briefed in the district court. SCOTUSblog has a detailed argument preview here.

On Wednesday the Court will first hear National Association of Manufacturers v. Department of Defense, which presents the issue of whether the Sixth Circuit erred when it held that it has jurisdiction under the Clean Water Act to decide petitions to review the waters of the United States rule, even though the statute does not “issued[e] or den[y] any permit” but instead defines the waters that fall within CWA jurisdiction. In June 2015, the Department of Defense and other agencies approved a final rule defining the term “the waters of the United States” and hence the scope of CWA jurisdiction. The National Association of Manufacturers challenged that rule under the Administrative Procedure Act. State, municipal, industry, and environmental challengers also filed APA suits. But because of uncertainty about whether their challenge falls under the CWA’s judicial review provision, the challengers also filed petitions for review in appellate courts. The petitions for review were consolidated in the Sixth Circuit. The NAM intervened as respondent in the Sixth Circuit. The Sixth Circuit held that it, not the district courts, has jurisdiction to decide challenges to the rule. Although two panel members concluded that the CWA precludes jurisdiction, one judge reasoned that “incorrect” circuit precedent bound him to take jurisdiction under a provision of the Act, which requires that appellate courts review agency actions “in issuing or denying any permit.” Some environmental groups have sided with NAM in this case, while others, such as the National Resource Defense Council and the National

Wildlife Federation, have joined forces with the Department of Defense. NAM will argue that the Act’s plain language prohibits appellate jurisdiction over the rule. The rule is neither an action “in issuing or denying any permit,” nor an “other limitation.” The rule is a mere definition, NAM argues. The federal agencies argue that the Clean Water Rule prohibits discharges of pollutants to certain waters, therefore, it is an “other limitation.” The Hill wrote about President Obama’s attempt to dissuade the Court from granting certiorari.

Later Wednesday, the Court will hear arguments in Jesner v. Arab Bank, which presents the issue of whether the Alien Tort Statute categorically forecloses corporate liability. Victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza, bring the case. They accuse Arab Bank of maintaining accounts for known terrorists, accepting donations that it knew would be used to fund terrorism, and giving millions of dollars to suicide bombers’ families. They specifically accuse the bank of using its American office to launder money for Hamas. The Court must decide whether U.S. courts have jurisdiction over the Jordan-based bank, which has more than 600 branches on five continents. The Alien Tort Statute gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Court previously tried to resolve this question of corporate liability under the ATS, but left it undecided in the 2013 case of Kiobel v. Royal Dutch Petroleum Co. The Court concluded that American courts lacked authority to hear the case because the conduct being contested in the case occurred in a foreign country.  The terrorism victims will argue that the bank violated the law of nations by financing terrorism and engaging in genocide and crimes against humanity. They will also argue that the ATS’s history gives no reason not to apply it to corporations.  The bank argues that corporations have not been held liable in international law. A bipartisan group of senators filed an amicus brief suggesting that the ATS is the only legal tool for civil lawsuits “against financial entities that use U.S. operations to aid terrorist attacks on foreign nationals overseas.” Law360 wrote about the country of Jordan and other groups urging the Court to throw out the case or to consider diplomatic ramifications of their eventual ruling. George Rutherglen of Just Security wrote an op-ed arguing that, “[e]xempting private corporations from liability, as if they were the equivalent of sovereign states, would be an unprecedented and dubious innovation.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent College of Law Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.

Weekly Roundup: Week of October 2, 2017

The Supreme Court has wrapped up the first week of oral arguments for this exciting and jam-packed term. Check out our post earlier this week for a description of the facts and issues in the case presented to the Court this week. And audio from the oral arguments is available at at Oyez.

The Court first heard arguments on Monday in three consolidated cases, Epic Systems Corp. v. Lewis, Ernst & Young v. Morris, and NLRB v. Murphy Oil USA, Inc. As Adam Liptak of The New York Times notes, these cases center on whether or not employers can insist on arbitration agreements that would bar class action lawsuits in union and workplace disagreements. During the argument Justice Ginsburg pointed to how the ability to engage in class action suits helps workers, by stating “there is strength in numbers,” and “we have to protect the individual worker from being in a situation where he can’t protect his rights.” Liptak’s view was that Justice Anthony Kennedy appeared to side with employers in this case, while Justice Gorsuch did not have any questions for either side. To decide the case, the Justices have to consider the relationship between the Federal Arbitration Act and the National Labor Relations Act. Justice Ginsburg proposed at argument that the arbitration law was concerned with commercial contracts among merchants, not employers and employees, and that the employment contracts in this case have been forced on the workers. Although, the Obama administration filed a brief in support of the workers, and the Trump administration has taken the opposite position. Check out SCOTUSblog and Bloomberg for more analysis on this case.

Also on Monday the Court heard re-arguments in Sessions v. Dimaya, a case regarding one of the most notable current issues—immigration. Ella Nilsen of Vox explains that the “big question” in this case is whether or not the current definition of a “crime of violence” in the Immigration and Naturalization Act which can lead to deportation, is too vague. Dimaya was convicted of residential burglary and was determined to be removable by an immigration judge who said Dimaya’s two nonviolent burglary convictions were crimes of violence. Under the Immigration and Nationality Act, the country may deport lawful immigrants convicted of a crime of violence. A clause in the Act defines “crime of violence” as any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense.”

The last time this case was before the Court the justices apparently divided evenly, leading to the need for re-argument, so Justice Gorsuch will most likely be the deciding vote. According to CNN, Gorsuch “grilled” a lawyer for the Justice Department about this mandatory removal law, and “dominated” the oral arguments, appearing “sympathetic” to the lawyers for Dimaya.

On Tuesday the Court heard re-argument in another immigration case, Jennings v. Rodriguez. The Justices were deadlocked on this case last term. The issue in this case is whether immigrants “slated for deportation have the right to a bail hearing and possible release after six months if they are not a flight risk and pose no danger to the public.” According to The Washington Post, the Court’s liberal justices “dominated” the arguments and expressed concern about indefinite detention of immigrants without a holding. The Justice Department argued that all non-citizens, whether they have lawful documents or not, have no constitutional right to be in the U.S. Justice Breyer noted that even suspects who have committed heinous crimes are entitled to a bail hearing, and stated “that to me, is a little odd,” and Justice Sotomayor said the indefinite detention sometimes lasting years is “lawlessness.” According to The New York Times , the 9th Circuit Appeals Court ruled that immigrants are entitled to a bond hearing every six months. Justice Alito responded to this argument by saying “Where does it say six months in the Constitution?” and “Why isn’t it seven? Why isn’t it eight?” The ACLU, representing the detained immigratnts, in turn stated that a six-month review makes the standard easier to review.

Additionally, on Tuesday the Court heard arguments in the much-anticipated gerrymandering case, Gill v. Whitford. Check out our Argument Preview for an in-depth analysis of the facts and issues. As Slate’s reports that the Justices debated abstract principles of law and math for half an hour, and the liberal justices bluntly stated that Republican gerrymandering that dilutes Democratic votes simply “punishes” voters for supporting Democrats and vice-versa. As that article’s headline states, “Partisan Gerrymandering Got the Sotomayor Treatment.” The Justice  asked one of the lawyers defending Wisconsin’s redistricting map how political gerrymandering helps our system of government and what value it brings to democracy, a question that the lawyer seemed to find difficult to answer. According to Newsweek, Justice Kennedy proposed a “novel” approach to this case. He stated, “Suppose the Court…decided that this is a First Amendment issue, not an equal protection issue.” On the other hand, Justice Gorsuch suggested that the Constitution gives the Court no authority to decide issues of redistricting at all, and stated the Court “ought to be cautious about stepping in here.” Check out CBS News,  The New Yorker,  and The Baltimore Sun for more information on this potentially seminal case.

Amy Howe of SCOTUSblog stated that the Justices got “personal” on Wednesday during the argument in District of Columbia v. Wesby.” She nicely summed up the issue by stating it is “whether D.C. police officers had probable cause to arrest a group of people attending a party in a vacant home; and, even if they did not, whether the lawsuit must be thrown out anyway because the officers are entitled to immunity.” Even though two young children in their “Sunday best,” observed the argument, the Court did not hold back and discussed many of the facts of the  “raucous party” at issue, including the “stripping, drinking, and marijuana smoking” that took place. Justice Kagan stated that she herself attended parties in her younger days, where other guests “may” have smoked marijuana. D.C. Solicitor General Todd Kim argued on behalf of D.C. and the officers, and urged the Justices to remember that officers face practical limitations when determining probable cause and the “fair probability” that the partiers were trespassing. Some justices responded to this argument by stating that it is impractical to require a person to know whether or not they have the right to attend a party, as they do not know whether the host has a right to host it there. Justice Alito also asked whether the police would have probable cause if the party took place in a more affluent neighborhood, and Justice Sotomayor suggested that there may have been no arrests if the partiers were white teenagers gathered in a wealthy neighborhood. ABC News and  The Federalist have more insight into this case.

The final case the Court heard this week was Class v. United States. As Rory Little of  SCOTUSblog explains, Class pleaded guilty to possessing  “readily accessible” firearms (which were in his car) while on the grounds of the U.S. Capitol. He accepted a guilty plea in exchange for dropping another charge. Jurist notes that the issue here is “whether a guilty plea waives a defendant’s right to challenge the constitutionality of the statute under which they were convicted.” Justice Roberts first commented on this question by stating “I should know this, but I don’t.” Justice Kennedy stated that the case requires the Justices to decide how to properly interpret Federal Rule 11, the rule governing federal guilty pleas. Justice Sotomayor suggested that Congress could amend Rule 11 to be more specific and settle this issue. Justice Gorsuch appeared to take Class’ side by noting the history of non-waiver doctrines. Kagan said U.S. attorneys can eliminate the ambiguity by just clearly stating in plea agreements whether the agreements waive the right to raise a constitutional challenge.

Next week will be another busy week at the Court, and argument previews are coming soon.

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Bridget Flynn, Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro

New Cases for the Court: The September 2017 Long Conference

The Supreme Court has just announced that it will hear eleven new cases in the Term that begins on Monday. Between the end of June and the beginning of September every year, the Supreme Court is on recess. Over the summer, many of the Justices travel or teach. New law clerks begin work as well, generally on a staggered schedule that overlaps with outgoing clerks. Petitions for certiorari (or “cert petitions”) continue to be filed throughout the summer, however, and the law clerks help the Justices review them. Then, at the end of September, in what is often called “the Long Conference,” the Justices meet to discuss the backlog of cert petitions. Generally, more cert petitions are granted as a result of the Long Conference than any other Conference throughout the year.

This year was no exception. The Supreme Court held its Long Conference on Monday, September 25, and on Thursday, September 28, it released a list of orders from that Conference, including the new cert grants. Specifically, the Supreme Court granted certiorari in 11 cases, although three of those cases (Dalmazzi v. United States, Cox v. United States, Ortiz v. United States) present the same issue and have been consolidated for argument purposes.

(1) Janus v. American Federation of State, County, and Municipal Employees, Council 31 is the most high-profile of the cases granted on Monday. Janus marks the third time in recent years that right-to-work advocates have attempted to persuade the Court to overrule a 1977 case called Abood v. Detroit Bd. of Education. Abood held that the First Amendment allows a public-sector union to collect “fair share fees” from employees in a collective bargaining unit even if those employees chose not to become union members. Fair share fees reimburse a union for the work they do on behalf of the non-member employees.

In Harris v. Quinn in 2014, the Supreme Court considered a First Amendment challenge to fair share fees that personal care assistants to disabled individuals were required to pay the union. Although these assistants were paid by the State of Illinois, in some regards, the disabled individuals functioned as their employees. Holding that because these personal care assistants were not “full fledged employees,” the Court declined to apply Abood to them, meaning that they did not need to pay the fees, and the five-Justice majority expressed great skepticism about that case. It did not, however, overrule Abood.

The next chapter in this saga came in Friedrichs v. California Teachers Association, which squarely presented the question as to whether the Court should overrule Abood. After oral argument but before any opinion issued, however, Justice Scalia unexpectedly died. The Court subsequently affirmed the lower court (meaning that Abood remained intact) by a 4-4 vote. Commentators on both the right and the left agree that this time, the Court will actually reach the Abood issue and that the remaining four Justices from the Harris majority (Chief Justice Roberts and Justices Alito, Kennedy, and Thomas) will be joined by Justice Gorsuch to give the right-to-work forces the victory they have sought.

(2) In McCoy v. Louisiana, the Court will consider the rights of a death row inmate who was convicted for the murder of his estranged wife’s son, mother, and stepfather. McCoy’s lawyer tried to persuade him to take a plea deal, which McCoy refused. At trial, the lawyer conceded his guilt during the opening statement against McCoy’s clear intention to maintain his innocence. (The lawyer believed that the plea would make it possible to avoid the death penalty.) McCoy attempted to fire the lawyer and represent himself two days prior to trial but the judge denied his request. At trial, McCoy claimed the police were responsible for the murders and that the judge’s goal was to allow the lawyer to “throw away all aspects of my due process,” according to the ABA Journal. The lawyer attempted, but ultimately failed, to convince McCoy that the evidence against him was so strong that he should take a plea deal. Washington’s Top News reports that this case will determine “who is ultimately in charge of the case, the lawyer or his client, and whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes.”

(3)The Court also added two Fourth Amendment cases to its docket. The first is Collins v. Virginia. As Constitution Daily describes, the issue of Collins centers on the Fourth Amendment’s “automobile exception,” which the Court has previously held gives police officers the power to search a vehicle without a warrant if they have probable cause to believe it contains contraband. According to Cornell Law School’s Legal Information Institute, the exception could be invoked if, for example, the contraband is in plain sight and it is likely it and the vehicle will be gone by the time a warrant is issued. In Collins, the police saw a picture of what they believed to be a stolen motorcycle on Collins’s Facebook page. They then located the house where he was staying and found the motorcycle under a tarp near the house. Collins was then charged with receiving stolen property. He is arguing that the search was not covered by the exception and is unconstitutional. The Court will have to decide if the exception allows for a police officer to enter private property and search a vehicle there without a warrant.

(4) In its second Fourth Amendment case, Byrd v. United States, the Court will decide what privacy interests a driver of a rental car has when the driver was not authorized on the rental agreement. Terrance Byrd was driving his girlfriend’s rental car with her permission, when he was pulled over for a traffic violation in Pennsylvania. The police searched his car and found large amounts of heroin and body armor. Bryd was arrested and charged with possession of body armor by a felon and with possession with intent to distribute heroin. Byrd argued the police violated his Fourth Amendment protection against unreasonable search and seizure. Both the district court and the Court of Appeals for the Third Circuit disagreed, however, explaining that he had no reasonable expectation of privacy because he was not on the rental agreement. As Adam Liptak of the New York Times notes, however, the Third Circuit acknowledged that there is a circuit split among federal appeals courts as to “whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement.” The Court will address this question, though argument has yet to be scheduled in this case.

(5) The Court has also agreed to hear a Fifth Amendment case. In City of Hays, Kansas v. Vogt, Police officer Matthew Vogt, who worked for the City of Hays, applied for a position in a different cities. During the interview he stated that he had kept a knife given to him while he was an officer working for the City of Hays. According to Justia, he was offered the new job but only on the condition that he returned the knife to the Hays police department. He complied, but became the subject of a criminal investigation and lost the offer. The investigation led to two felony charges that were eventually dropped for lack of probable cause after a hearing. Vogt sued both cities and four individual police officers, arguing that the use of his earlier statements in the probable cause hearing violated his Fifth Amendment right against self-incrimination. The district court dismissed all of Vogt’s claims. The Tenth Circuit Court reversed the trial court’s dismissal as to the City of Hays, although it upheld the dismissal as to the other jurisdiction and the police officers. According to SCOTUSBlog, Justice Gorsuch, a former member of the 10th Circuit bench, has recused himself.

(6) In Encino Motorcars, LLC v. Navarro, the Court will revisit a case that it has reviewed before. Bill Chappell of NPR WVIK explains that the case “turns on the interpretation of labor and overtime laws as they apply to employees at car dealerships.” Navarro was a service advisor at a car dealership, and he is arguing he was protected by overtime laws, even though they do not apply to salesman or mechanics. According to Lynn White of The Federalist Society, service advisers were long considered exempt from the Fair Labor Standards Act’s overtime requirement. But in 2011 the Department of Labor (“DOL”) issued a rule stating that advisors are not exempt from overtime. The Supreme Court ruled that the DOL’s decision was “arbitrary and capricious,” and thus violated the Administrative Procedures Act. It ordered the Ninth Circuit to rule again without taking the DOL’s regulation into account. The Ninth Circuit has now ruled for a second time that service advisers are not exempt.

(7) In Rosales-Mireles v. United States, will address the standard for correcting plain error of a lower court and the application of a 1993 case, United States v. Olano. According to Amy Howe of SCOTUSblog, Rosales-Mireles pleaded guilty to reentering the United States illegally and was sentenced to 78 months in prison – an incorrect sentence calculation. Although the Fifth Circuit agreed that Rosales-Mireles sentence was incorrect, it refused to correct its error. The court argued that the kind of errors that would “seriously affect the fairness, integrity or public reputation of judicial proceedings” are “ones that would shock conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Supreme Court is set to address this standard, which Rosales-Mireles argues is too high and too harsh.

(8) Finally, Dalmazzi v. United States, Cox v. United States, Ortiz v. United States (consolidated cases) all involve the propriety of a judge serving simultaneously on the United States Court of Military Commission Review and either the Army or Air Force Court of Criminal Appeals.

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS co-director Carolyn Shapiro.