All posts by Chris Schmidt

Justices, News, OT 2018, Weekly Roundup

News Roundup: Week of October 29, 2018

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In addition to the Supreme Court’s latest session of oral arguments and its announcement that it had granted certiorari in some new cases (see here), there was other news as well last week.

Term Limits for the Court

The Hill’s Lydia Wheeler wrote in an article this week about a new poll conducted by Fix the Court (FTC), an organization devoted to promoting policies for reforming the Supreme Court, which found that 78% of Americans support term limits for all Supreme Court Justices.

At a Georgetown Law Center event last week, Justice Kagan made a comment about the slew of proposals: “I think what those proposals are trying to do is take some of the high stakes out of the confirmation process and certainly to the extent that that worked and people could feel as though no single confirmation was going to be a life or death issue that that would be a good thing[.]”

Justice Sandra Day O’Connor

The first female Associate Justice of the Supreme Court, Sandra Day O’Connor, announced last week that she would be retiring from public life, reports NPR’s Nina Totenberg, due to a diagnosis of dementia, possibly related to Alzheimer’s disease. After retiring from the Supreme Court in 2006, Justice O’Connor, like many of her colleagues, remained active in retirement. O’Connor promoted civic engagement and civic education by founding the organization, iCivics. You can read more about Justice O’Connor’s announcements and reactions to it here.

You can also read a letter written by a mentee of Justice O’Connor, Kim Azzarelli, who is co-founder of Seneca Women and a member of the advisory board of the Women in Alzheimer’s Research Fund at University of California, San Francisco. She reports that Justice O’Connor advised her “on everything from how to fix Washington (less politics, more human relationships) to what to wear when I traveled (black pants, always). But two lessons I learned from her stand out above all. One was that a woman’s lens is critical to all areas of public life. The second was the importance of using one’s power for purpose.”

O’Connor’s public announcement of retirement was not the only news to captivate Supreme Court enthusiasts. Recent reporting discovered that a young William Rehnquist proposed marriage to a young woman named Sandra Day. While the two were attending law school at Stanford, they dated and developed a close friendship, which led Rehnquist to propose via letter after he left a semester early to clerk on the Supreme Court.

Spoiler alert: she turned him down. However, the two remained close friends throughout the years—leading Rehnquist to advocate for O’Connor’s appointment to the Supreme Court by President Ronald Reagan. It’s not too often the general public gets an in in-depth scoop into the personal lives of the Justices.

In Case You Missed It…

Great analysis piece by Co-Director of ISCOTUS Professor Schmidt on the aftermath of the Kavanaugh hearings and the political nature of the Supreme Court. Read it here.

Trump and the 14th Amendment

Last week, President Donald Trump told Axios correspondents Jonathan Swan and Stef W. Kight during an interview, which will air Sunday night on HBO, that he would consider a plan to end birthright citizenship. See here for ISCOTUSnow’s analysis of the issue.

Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

OT 2018, Weekly Preview

Weekly Preview: Week of November 5, 2018

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Nov 5 Weekly Preview

           On Monday November 5, 2018, the Court will release orders and hear arguments in two cases having to do with a clash between state law and federal law. In Sturgeon v. Frost, the Court is being asked to decide whether the Alaska National Interest Lands Conservation Act, bars the National Park Service from regulating non-federal navigable waters surrounding State, Native, and private lands. Those who would answer “yes” are concerned about the impact on Alaskans who live on the surrounding lands and their ability to benefit from their natural resources. In Virginia Uranium v. Warren, the Court is being asked to decide whether the Atomic Energy Act, preempts a state law that looks like it regulates activity in the state’s jurisdiction (here, uranium mining), but has the effect of regulating the radiological safety hazards under the protection of the National Regulatory Commission. Read this editorial for more on Virginia Uranium, and this article for more on Sturgeon.

           On Tuesday, the Court will hear arguments in BNSF Railway Company v. Loos, which has to do with the Railroad Retirement Tax Act (click here for details), and Bucklew v. Precythe,which asks several questions about Missouri’s lethal injection death penalty protocol (click here for more about the case and broader issues relating to the death penalty). On Wednesday, the Court will hear arguments in Culbertson v. Berryhill (about attorney fees in Social Security claim cases) and Republic of Sudan v. Harrison (about whether someone can sue a foreign state by serving the state’s diplomat in the US).

           On Thursday November 8, 2018, the Court will take a break from hearing arguments and working on cases to hold the Investiture Ceremony for Justice Kavanaugh. Supreme Court Justices take two oaths: a Constitutional Oath, administered privately, and a Judicial Oath, administered in a live broadcast (click here for a historical overview of Supreme Court Oaths). After taking the Judicial Oath, a new Justice will usually walk down the 44 steps of the Court’s building with the Chief Justice. However, as CNN reports, Justice Kavanaugh has decided not to go on this walk with the Chief Justice because of security concerns. USA Today and The Mercury News have more on the death threats targeting Justice Kavanaugh and his family.

The Court will end the week with a conference on Friday November 9, and will discuss a number of cases. In Louisiana Public Service Commission v. Federal Energy Regulatory Commission, the Court is being asked to consider questions relating to the Federal Power Act conflicts with state law. In Patterson v. Walgreens, the Court is being asked to overturn a 1977 precedent. TWA v. Hardison, that limits the protections Title VII provides to employees engaging in religious practices. In Carty v. Texas, the Court is being asked to decide questions relating to habeas review of cumulative prejudice in trials for capital cases. The case involves a British woman on Texas’s death row, and has been receiving media attention in the United Kingdom and here in the United States.

The complete list of cases set to be discussed at that conference can be found here.

This post was written by ISCOTUS Fellow Zoe-Arthurson McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

History of the Court, Immigration, News Update

Birthright Citizenship, the President, and the Supreme Court

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Last week, President Donald Trump declared his intent to use an executive order to limit the right of birthright citizenship.

The principle that anyone born on American soil is a citizen of the United States is based in the Fourteenth Amendment to the Constitution, which was ratified in 1868. The Amendment opens with the declaration, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This provision was a direct repudiation of the Supreme Court’s 1857 Dred Scott decision, which held that no black, free or slave, could claim U.S. citizenship. The prevailing opinion of legal scholars and historians is that the text means pretty much what it says: if you’re born in the United States, you’re a citizen of the United States.

To the extent that there is any ambiguity in the text, it resides in the qualification of birthright citizenship to those who are “subject to the jurisdiction” of the United States. The drafting history shows that the framers included this language so as to exclude the children of foreign diplomats and soldiers and Native Americans from its coverage.

President Trump’s claim that he would use an executive order to exclude the children of undocumented immigrants who are born in the United States from being recognized as U.S. citizens raises two legal questions. First, does the President have the authority to redefine the long established understanding of the birthright citizenship clause by executive order? Second, assuming he does (or assuming that Congress were to pass a law along the lines of what Trump proposed), would an effort to limit birthright citizenship in this way violate the Fourteenth Amendment?

As to the meaning of the Fourteenth Amendment’s birthrights citizenship clause, the Supreme Court has evaluated the clause, but never ruled  squarely on the issue at the heart of the current debate. In 1898, in the case of United States v. Wong Kim Ark, the Court held a child born in San Francisco to Chinese parents was a citizen, even though the Chinese Exclusion Act made the parents ineligible for citizenship. The court said:

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

Since Wong Kim Ark’s parents were legally in the country, the Court holding does not necessarily apply to situations—such as those Trump is talking about—in which the parents’ presence in the country is itself a violation of law.

Almost a century later, in the 1982 case Plyler v. Doe, the Supreme Court ruled that the Fourteenth Amendment’s Equal Protection Clause prohibited a state from excluding undocumented children from access to free public education. Although the Court had no reason to discuss the birthright citizenship clause, it did interpret a related phrase in the Equal Protection Clause to apply to undocumented immigrants. In subsequent decisions the Court has assumed that children born to undocumented parents are citizens of the United States, but is has never directly held that this was required by the Constitution.

Most legal scholars believe the Fourteenth Amendment requires birthright citizenship and that terminating the practice would require a constitutional amendment. James Ho, a conservative legal scholar appointed by President Trump to a federal appeals court, has written as much; so has John Yoo, a University of California, Berkeley, law professor who served in George W. Bush’s administration.

Some legal scholars have dissented from this consensus, however, including Peter Schuck, an emeritus professor at Yale Law School. In 2010, Schuck wrote that Congress could withhold birthright citizenship from children who are in the country “as a result of an illegal act” without passing a constitutional amendment.

The impact of terminating birthright citizenship could be massive. In 2014, roughly 275,000 babies were born to unauthorized-immigrant parents, or about 7% of the 4 million births in the United States that year.

It is unclear whether the President will follow through on his proposed executive order, but in a recent tweet he claimed, “This case will be settled by the United States Supreme Court!”

 

This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt .

 

 

Oral Argument Report, OT 2018

Oral Argument October 29: Arbitration Again

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On Monday, the Court started its newest argument session by hearing arguments for two cases revolving around the Federal Arbitration Act (FAA). The FAA compels parties that contract for arbitration to resolve that dispute with an arbitrator instead of a court. In recent years, the Court has read the FAA expansively, including last Term.  

The first case, Henry Schein Inc. v. Archer and White Sales Inc., both Schein and Archer manufacture and sell dental equipment. Archer accused Schein of violating the Sherman Act and various other antitrust laws. Here, the Court must decide if courts can refuse to hear a question of arbitrability even if the claim is wholly “wholly groundless.” Petitioner Henry Schein Inc. argues that the Court has already decided issue of arbitration, and that this case clearly falls outside that scope. Respondent Archer & White Sales Inc. argue they cannot be forced into arbitration because they only contracted for arbitration for “damages,” and the current action before the Court is for injunctive relief. Bloomberg reports that Daniel Geyser, counsel for Archer stated during oral arguments that it is more efficient for courts to decide if claims are frivolous before they go before an arbitrator. In response, Justice Sotomayor stated if this position was accepted, “we’re now inviting this fight in every motion to compel arbitration,” and “it’s not clear to me that your solution is more efficient in a meaningful way.”

The second case, Lamps Plus Inc. v. Varela, is an FAA dispute between an employer and employee regarding a data breach class action lawsuit. Lamps Plus has a requirement all employees sign a standard binding arbitration agreement as a term of employment, which it argues precludes class actions suits in court and in arbitration.  As the New York Times  reports, the actual language in the agreement is ambiguous and doesn’t specifically mention class action suits. Varela argues that due to the ambiguity he and other workers should be able to bring the class case in arbitration. Check out CNBC and Jurist for more information on this case.

This post was written by ISCOTUS Fellow Clayburn Arnold, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

Conference Report, Orders of the Court, OT 2018

Conference Report: October 26 Conference

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After the Supreme Court justices met in Conference on October 26, the Court  called for the views of the Solicitor General in two cases. In Swartz v. Rodriguez, the Court is asking the Solicitor General to weigh in on issues relating to an implied remedy for damages and qualified immunity where a United States border patrol agent fired shots across the Mexican border amd killed a Mexican citizen. The Court considered these issues in an earlier case, Hernandez v. Mesa, which was argued in February 2017, but it did not resolve the legal issues. Instead, it remanded Hernandez to the lower court to reconsider in light of another decision, Ziglar v. Abbasi, narrowing the circumstances under which federal officials can be sued for constitutional violations. (ISCOTUSnow discussed Hernandez here and here, and Ziglar here.)  In the second case, Ariosa Diagnostics v. Illumina, the Court is asking the Solicitor General to weigh in on questions of law in circumstances in which a patent is voided because of someone else’s past disclosure of an invention to the Patent and Trademark Office.

The Court also denied review in a capital case, Townes v. Alabama, In Townes, two court reporters certified two different transcripts that differed by one word in the instructions, whether they “may infer his intent to kill” or “must infer his intent to kill.” The “may” instruction is constitutional, while the “must” instruction would have been a violation of Townes’ right to due process. Justice Sotomayor wrote a statement criticising the trial court’s failure to preserve the original recording of the jury instructions in Townes’ trial resulting in a capital murder conviction. She wrote: “Because Townes has not shown that the procedures below amount to constitutional error, I must vote to deny his petition for certiorari. I write separately because the trial court’s failure to preserve the original recording gives cause for deep concern.” Courthouse News has more on the case and Justice Sotomayor’s statement here. Criticism of the Court’s denial can be found here.

Finally, the Court granted cert in three cases. In Return Mail Inc. v. United States Postal Service, the Court is being asked to consider whether the government qualifies as a “person” under the Leahy-Smith America Invents Act (AIA), and can therefore petition to institute review proceedings under the AIA. In Mission Product Holdings Inc. v. Tempnology, LLC, the Court is being asked to consider whether a debtor-licensor’s rejection of a license agreement, which is a breach of contract under the Bankruptcy Code, terminates the rights of a licensee, when those rights would survive that breach under the relevant non-bankruptcy law. In United States v. Haymond, the Court is being asked to consider whether the 10th Circuit erred in holding the portions of 18 U.S.C. §3583(k) that required the district court to revoke Haymond’s ten-year supervised release and impose a 5-year sentence upon finding that he knowingly possessed child pornography by a preponderance of the evidence, are “unconstitutional and unenforceable.” The Court denied mandamus in two cases and denied cert in 210 cases.

Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Civil Rights, Elections and voting, Orders of the Court, OT 2018

SCOTUS and the Election: North Dakota Voter ID Law

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As the 2018 midterm election approaches, parties to election and voting-related litigation are asking the Supreme Court to step in. On Tuesday October 10, 2018, for example, the Court ruled on a request to issue a stay in a North Dakota voter ID law challenge, declining to intervene.

The North Dakota law requires that voters have photo identification that includes a current residential address, and it was challenged by a group of Native American voters in North Dakota. They claimed that the street address requirement would disproportionately impact Native Americans, barring many from voting who would be otherwise eligible. They explained that many Native Americans live on reservations or other areas without street addresses, instead having P.O. boxes, and that even qualifying addresses are not often included on tribal IDs.

In April of this year, a federal district court ordered North Dakota to allow voters to present IDs with either a current street address or mailing address (i.e., a P.O. Box). The U.S. Court of Appeals for the Eighth Circuit put a hold on the district court’s order in September. Although the challenge to this hold first went to Justice Gorsuch, who handles emergency appeals from the Eighth Circuit, he referred it to the full Court. (Justice Kavanaugh did not participate.) Challengers to the hold fell short of getting five of the eight justices to vote in their favor, with Justice Ginsburg writing a dissent to the Court’s denial, joined by Justice Kagan. The dissenting opinion, which can be read in full here, noted:

The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election. If the Eighth Circuit’s stay is not vacated, the risk of disenfranchisement is large.

Supporters say that the law is needed to prevent voter fraud, which is a concern because North Dakota does not require voter registration and simply allows voters to go to the polls on Election day with their IDs. The New York Times gives an overview of the law, what supporters are saying, and Native Americans’ response. Bloomberg Politics has more insight into the Eighth Circuit’s decision, and U.S. News discusses the efforts underway to help Native Americans in North Dakota comply with the new voter ID law. The Hill and Fox News have also covered this story.  

 Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS  Co-Director Carolyn Shapiro.

 

OT 2018, Weekly Preview

Oral Arguments: Week of October 29, 2018

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The Supreme Court will hear oral arguments in six cases during the week of October 29th:

Monday, October 29:

–       Henry Schein Inc. v. Archer & White Sales Inc.: Archer & White Sales Inc. sued Henry Schein Inc. for antitrust violations. A magistrate judge interpreted the parties’ contract as requiring an arbitrator to decide questions of arbitrability, but the district court and court of appeals disagreed on the basis that the claim of arbitrability was “wholly groundless.” The Court will consider whether the Federal Arbitration Act (FAA) allows courts to decline to enforce an agreement that delegates issues of arbitrability to an arbitrator under such circumstances.

–       Lamps Plus Inc. v. Varela: Employees, led by Frank Varela, filed a class action lawsuit against Lamps Plus Inc., their employer, after a phishing scam caused the company to release personally identifying information of the employees. The employees had signed arbitration agreements, which the district court found to be ambiguous as to whether the agreement permitted class arbitration and so interpreted against the drafter, Lamps Plus, to allow class-wide arbitration. Here, the Court will decide whether the FAA prohibits a state-law interpretation of an arbitration agreement as authorizing class arbitration based on commonly used language.

Tuesday, October 30:

–       Washington State Department Licensing v. Cougar Den Inc.: Cougar Den, a Native American-owned fuel distributor, received an assessment from the Washington State Licensing Department demanding $3.6 million in unpaid taxes and fees. Cougar Den believes it is exempt from payment because of the Yakama Nation Treaty of 1855. The Washington Supreme Court agreed with Cougar Den’s interpretation, but the U.S. Court of Appeals for the Ninth Circuit has previously rejected claims that the treaty exempts Yakama tribe members from taxation for activities outside of the Yakama reservation. The Court will determine whether the treaty applies to member activities that make use of public highways, off-reservation.

–       Garza v. Idaho: Gilberto Garza Jr. made a plea deal for possession of a controlled substance with intent to deliver, in which he waived his right to appeal. After sentencing, Garza petitioned for post-conviction relief, alleging his attorney was ineffective for not filing a notice of appeal.  Garza’s attorney stated he did not file an appeal because Garza waived his right to do so. In contrast to the majority of federal circuit courts, the Idaho Supreme Court held the “presumption of prejudice” is not automatic when counsel declines to file an appeal in light of an appeal waiver. The Court will determine whether counsel is presumed ineffective when not filing an appeal at a defendant’s request due to a waiver of the right to appeal.

Wednesday, October 31:

–       Frank v. Gaos: A class action lawsuit was filed against Google on behalf of internet users who claimed their privacy was violated under federal and state law by the company’s disclosure of their internet search terms to third party websites. Google settled with the plaintiffs for $8.3 million, of which $5.3 million was directed to six cy pres recipients, under the condition the recipients would direct the funds toward internet privacy groups. However, several class members, led by Thomas Frank, disagreed with the settlement distribution and filed suit. The district court approved of the settlement distribution and the Ninth Circuit affirmed. The Court will determine whether a cy pres award of a class action suit that provides no direct relief to class members can be “fair, reasonable, and adequate.” [Disclosure: Chicago-Kent College of Law’s Center for Information, Society and Policy is one of the designated cy pres recipients, as reported here.)

–       Jam v. International Finance Corp.: A group of Indian fisherman and farmers, led by Budha Jam, are suing International Finance Corporation (IFC), an international organization based in Washington D.C. which provides loans to developing countries.  The IFC loaned an Indian company $450 million for a coal-powered plant with the stipulation that the company could not cause damage to surrounding communities. However, the plant’s construction and operation caused significant air and water pollution, which altered the ecosystem and destroyed the livelihood of many farmers and fishermen, and the IFC made no attempt to force compliance with the agreement. The fisherman and farmers brought a lawsuit in federal court in Washington, D.C. as third-party beneficiaries of the contract. The district court dismissed the plaintiffs’ claim, finding the IFC was immune from suit under the International Organizations Immunities Act (IOIA) and the Court of Appeals affirmed.  The Court will determine whether the IOIA gives international organizations the immunity that foreign governments had when the law passed or that they have at present, pursuant to the Foreign Sovereign Immunities Act of 1976.

Additionally, the Court will hold a conference on Friday to discuss petitions for additional cases to be added to the Term Calendar.  SCOTUSblog’s list of petitions to watch can be found here.

This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Justices, News Update

Justice O’Connor’s Second Retirement

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Retired Supreme Court Justice Sandra Day O’Connor announced this week that “some time ago,” her doctors diagnosed her with “the beginning stages of dementia, probably Alzheimer’s disease.” For this reason, she explained, she is “no longer able to participate in public life.”

Image result for justice o'connorJustice O’Connor retired from the Court in 2005 to care for her husband while he himself battled Alzheimer’s disease. She dedicated much of her time in retirement to promoting civics education, founding iCivics, a free online curriculum dedicated to teaching young people about government and the responsibilities of citizenship in a democracy .

The first female justice on the Supreme Court, Justice O’Connor served on the Court for 24 years. She was nominated in 1981 by President Reagan, who had made a campaign promise to appoint a woman to the Court. She won confirmation in the Senate by a unanimous vote.

All active and retired Supreme Court justices issued statements in response to Justice O’Connor’s announcement. “Justice O’Connor is of course a towering figure in the history of the United States and indeed the world,” wrote Chief Justice Roberts. “She broke down barriers for women in the legal profession to the betterment of that profession and the country as a whole.” Justice Ginsburg wrote that Justice O’Connor “strived mightily to make what was momentous for women in 1981, the year she was appointed to the Court, no longer extraordinary, but entirely expectable. In that effort, I am among legions of women endeavoring to follow her lead.”

In her statement, Justice O’Connor made a plea for civics and for civility:

I’ve seen first-hand how vital it is for all citizens to understand our Constitution and unique system of government, and participate actively in their communities. It is through this shared understanding of who we are that we can follow the approaches that have served us best over time – working collaboratively together in communities and in government to solve problems, putting country and the common good above party and self-interest, and holding our key governmental institutions accountable.

“I can no longer help lead this cause, due to my physical condition,” she explained. “It is time for new leaders to make civic learning and civic engagement a reality for all. It is my great hope that our nation will commit to educating our youth about civics, and to helping young people understand their crucial role as informed, active citizens in our nation.” She then called on “private citizens, counties, states, and the federal government” to “ work together to create and fund a nationwide civics education initiative.”  

“I hope,” Justice O’Connor wrote in closing, “that I have inspired young people about civic engagement and helped pave the pathway for women who may have faced obstacles pursuing their careers.”

To learn more about the fight against Alzheimer’s and what you can do to help, visit Alzheimer’s Association. To learn more about Justice O’Connor’s civics project, visit iCivics.

This post was written by ISCOTUS Fellow Clayburn Arnold, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt .

First Amendment

Masterpiece Cakeshop Revisited?

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A petition for certiorari was filed with the Court on Friday that could allow the Justices to revisit the question presented in the Masterpiece Cakeshop case from last year. The petition comes from Oregon, where the state has an anti-discrimination law, the Oregon Equality Act, which prohibits discrimination on the basis of sexual orientation (among other characteristics) by businesses open to the public. Petitioners (the Kleins) owned Sweetcakes by Melissa, a bakery in suburban Portland that has since shut down. The bakery refused to bake a cake for the wedding of a same-sex couple, claiming that doing so would violate their religious beliefs. The couple filed a complaint with the Oregon Bureau of Labor and Industries, which found the bakery to be in violation of the anti-discrimination law and awarded the couple $135,000. The bakery appealed the agency decision to the state appeals court, which rejected the appeal. The Oregon Supreme Court declined to hear the case. Sweetcakes filed their case with the Supreme Court Friday.

In the petition, Sweetcakes argues that in Masterpiece Cakeshop there was uncertainty about whether the baker refused only to create a custom cake or instead refused to sell any cake to a same-sex couple. In contrast, Sweetcakes makes only custom cakes, and it refused to make a cake for a same-sex couple’s wedding, although it had previously sold a cake to the same couple for the wedding of the mother of one the partners. The petition notes the Oregon Appeals Court recognized this distinction and recognized the cake as an artistic expression. Nevertheless, the court ruled against the bakery. For those reasons, the petitioners argue that their case provides an opportunity for the Supreme Court to address the free expression issues it did not reach in Masterpiece. The petition also asks the Court to consider overruling Employment Division, Dept. of Human Resources of Oregon v. Smith, which held that, absent evidence of animus, laws of general application are not generally unconstitutional if they impose burdens on religious beliefs of exercise.

Amy Howe detailed this story on Friday. Read the article here. Read more about the case in the Washington Times. More information about the Oregon Equality Act can be found here.

Written by ISCOTUS Fellow Clayburn Arnold, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

Orders of the Court, OT 2018

SCOTUS and the Ross Deposition

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Secretary of Commerce Wilbur Ross will not have to sit for a deposition in a lawsuit that challenges his decision to include a citizenship question on the 2020 census, at least at for the moment, the Supreme Court ruled in an order it handed down Monday night.

John Gore, the acting head of the civil rights division of the Department of Justice, will likely have to submit to a deposition because the Court’s opinion denied the application for stay of a court order which required his deposition. The opinion also denied the request to block other discovery outside the administrative record.

The order also gave the Department of Commerce until Monday, October 29, to petition for certiorari regarding the order. If the Commerce Department does so, the upheld stay will remain in effect until the Supreme Court decides whether to grant certiorari on the issue. If the Court denies certiorari, the stay will terminate and Ross will be subject to deposition. If the Court grants certiorari, the stay ends when the Court issues an opinion on the issue.

There were no noted dissents from the decision to stay Ross’s deposition. Justice Gorsuch, however, wrote an opinion in which he, joined by Justice Thomas, concurred in part and dissented in part. Gorsuch wrote that he would have gone a step further and stayed all extra-record discovery until the Supreme Court could review the order. Gorsuch wrote that the majority opinion could allow the plaintiffs to lay the groundwork for preventing certiorari. The plaintiffs could, he wrote, withdraw their request to depose Ross, persuade the trial court to quickly try the case, and then oppose certiorari, arguing that their discovery dispute had become moot.

Although the district court held that a deposition of Ross as necessary because the plaintiffs had made a “strong showing” of “bad faith” by Ross, Gorsuch disagreed. “Levelling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,” he wrote. Gorsuch went on to write that the evidence of bad faith the district court cited was insufficient.

The lawsuit challenges Ross’s decision to add the citizenship question as violating the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The plaintiffs also argue that the question will deter immigrants from responding to the census, resulting in inaccurate  numbers. Census results are hugely important. They are used to draw House districts, which also determine each state’s number of electoral votes. Census data are also used to distribute federal funds under a variety of programs.

Ross has said he added the question so that the Justice Department can use the citizenship information to better enforce Section 2 of the Voting Rights Act, but the plaintiffs claim that explanation is pretextual. And recently released documents raise questions about Ross’s candor about this issue when he testified before Congress.

Ross testified that the Justice Department “initiated” the request for the question in December 2017 by sending a letter to the Census Bureau. But documents released in discovery suggest that Ross or his staff spoke about the citizenship question to Attorney General Jeff Sessions in the Spring of 2017 and that that Ross or his staff discussed the census question with Gore, Sessions’s aide, Mary Blanche Hankey, Danielle Cutrona (a Justice Department lawyer) and two others. In addition, Kansas Secretary of State Kris Kobach, who is also running for governor of Kansas as a Republican, sent Ross an e-mail, dated July 14, 2017, asking about adding the citizenship question to the census. Kobach, who led a failed voter-fraud task force under Trump, said that he was following up on the telephone conversation that Ross and Kobach had “a few months ago.”

Other recently released documents raise other questions. During Ross’s congressional testimony, Democratic Representative Grace Meng, of New York, asked Ross, ”Has the president or anyone in the White House discussed with you or anyone on your team about adding this citizenship question?” Ross answered, “I am not aware of any such.” But newly released documents suggest that Ross spoke with Steve Bannon, then serving as President Donald Trump’s chief strategist, before including the citizenship question on the 2020 census.

Article 1 Section 2 of the U.S. Constitution mandates that the government conduct a census every decade. The section does not mention citizenship.

Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.