The Week Ahead – May 1, 2017

On Monday morning, the Court took the bench and issued two opinions, both by Justice Breyer. The more high-profile opinion, in Bank of America v. City of Miami, involves whether and when a municipality can bring a lawsuit under the Fair Housing Act. In this lawsuit, and in a companion suit against Wells Fargo, Miami alleged that the banks engaged in predatory lending in minority communities, leading to disproportionate numbers of foreclosures and vacancies in those neighborhoods, which in turn harmed the City in a variety of ways, including making it harder for it to assure integrated neighborhoods, reducing property tax revenues, and increasing the need for a variety of city services. In a 5-3 opinion, written by Justice Breyer and joined by the Chief Justice and Justices Ginsburg, Sotomayor, and Kagan, the Court held that the City’s alleged injuries fell within the “zone of interests” of the Fair Housing Act, so it could bring the lawsuit. The Court, however, imposed a vague but increased burden of establishing causation — more than mere foreseeability — on the City. It expressly declined to determine the precise contours of that burden. Justice Thomas, joined by Justices Kennedy and Alito, dissented from the Court’s holding that the City could sue, agreed that a higher level of causation was appropriate assuming the lawsuit could go forward, but concluded that the City could not meet that level of causation. Robert Barnes of The Washington Post has more.

In today’s other opinion, in Venezuela v. Helmerich & Payne, the Court construed an aspect of the Foreign Sovereign Immunities Act and concluded that a party alleging expropriation of property must allege facts establishing that the property was taken in violation of international law.

The Court issued its Order List from last week’s Conference — the first one in which Justice Gorsuch fully participated, other than recusing himself from a couple of cases that came from the Tenth Circuit, his former court. The Court granted certiorari in two cases, neither of which were among the most closely watched petitions. Amy Howe of SCOTUSblog summarizes the cases that were granted and some of the still-pending petitions.

Others are also making predictions about what the Court may have in store for the upcoming months. Perry Grossman of Slate believes that the Supreme Court is looking for cases involving civil forfeiture. Grossman notes that the Court recently decided Nelson v. Colorado, which took down Colorado’s demanding procedures required of those seeking to get their court costs refunded once their convictions were overturned. He argues the Court laid down this holding in order to make a point highlighting Due Process rights of those who have had property seized without actually being convicted, and will take on more of these cases in the future. And he describes Leonard v. Texas, in which the Court denied cert but Justice Thomas wrote a statement respecting that denial highlighting his concerns about civil forfeiture.

In other news, Justice Ginsburg recently gave a speech at Georgetown University. Henry Kronk of Western Journalism describes how Justice Ginsburg recalled her own confirmation to the Court, and contrasted it with the most recent nomination of Justice Gorsuch. Ginsburg expressed wishes of removing the tense political divisions that surrounds the Court, and noted that there was much more “collegiality” and “civility” in her hearing and other past hearings. She believes that partisan politics did not play a significant role in her confirmation, and noted that her biggest supporter on the Judiciary Committee was Republican Senator Orrin Hatch. Justice Ginsburg also commented, “every time we have a new justice, we have a new court.”

And Justice Gorsuch himself continues to make news, most recently with the revelation that he has not joined the “cert pool” — the group of justices whose law clerks collectively divide up the cert petitions for review. As Adam Liptak explains, Justice Alito also has stayed out of the pool, which has been blamed for the Court’s shrinking caseload.

The Court will not issue either orders or opinions again until next Monday, and it is done hearing argument for the year. Unless something unexpected happens, therefore, our Weekly Roundup is on hiatus this week. We will be back at the beginning of next week, however, to report on the latest developments.

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