This Week at the Court – May 15, 2017

On Monday, the Supreme Court issued its Order List from last week’s Conference and also issued opinions in three cases. Perhaps the biggest news of the day was the Court’s denial of certiorari in North Carolina v. North Carolina State Conference of the NAACP. The North Carolina case involved a challenge to the state’s particularly strict voter ID law, a law that also cut back on early voting and made other changes in voting that had a particularly negative effect on African-Americans voters. The law was passed in the immediate wake of Shelby County v. Holder, in which the Court struck down the preclearance requirement of the Voting Rights Act. As a result, for the first time in decades, North Carolina was able to make wholesale changes to its voting and election laws without demonstrating, either to the Justice Department or to the D.C. District Court, that the changes would not harm minority voters. The law was challenged as violating the Voting Rights Act and the Fourteenth and Fifteenth Amendments. The district court held that the plaintiffs had not established either discriminatory effect or discriminatory intent. The Fourth Circuit reversed, holding that the legislature had targeted African-American voters “with almost surgical precision,” and it enjoined the law.

The State of North Carolina, its then-Governor, a Republican, and other officials, represented by the then-Attorney General, also a Republican, filed a cert petition. In January 2017, however, a new Governor and Attorney General, both Democrats, were sworn in, and the new Attorney General sought to withdraw the cert petition. The state legislature, which is and was under Republican control, objected, arguing that state law did not authorize the Attorney General to withdraw and that state law authorized them to retain their own counsel. As Chief Justice Roberts put it in a statement respecting the denial of certiorari, “a blizzard of filings” ensued. In light of the complex state-law dispute that the Court was faced with, Roberts admonished that the denial of certiorari is not a decision on the merits.

The Supreme Court’s denial of certiorari, however, does leave the Fourth Circuit decision intact. This is a victory for voting rights advocates, but it may not be a permanent one, as Ian Millhiser for Think Progress explains. Noted election law scholar and commentator Rick Hasen argues that the Chief Justice, who also wrote a statement respecting the denial of certiorari in a Texas voter ID case, is both encouraging states to continue to litigate these cases and is likely to be particularly unfriendly to plaintiffs’ claims under the Voting Rights Act when such a case finally reaches the Court. And the New York Times reports that the leadership of the Republican-controlled legislature in North Carolina is vowing to enact new voting restrictions.

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The three opinions issued yesterday are in contrast to the three high-profile issues at issue in the cert petitions just discussed, although the issues presented are important. In Kindred Nursing Centers Limited Partnership v. Clark, the Court held 7-1 that a state cannot impose a requirement for a power of attorney to enter into an arbitration agreement that it does not impose on other contract provisions. The lone dissenter, Justice Thomas, adhered to his view that the Federal Arbitration Act does not apply in state courts, but the rest of the justices (other than Justice Gorsuch), in an opinion written by Justice Kagan, emphasized that arbitration clauses cannot be treated differently from other contractual terms. Indeed, as several commentators noted, the opinion could have implications for a variety of state attempts to protect consumers from arbitration agreements. This almost unanimous holding is surprising in some ways, as the Court has often split 5-4 on its reading of the FAA. But it is unsurprising in light of Justice Breyer’s expressed concern at oral argument “that Kentucky just doesn’t like the federal law … [s]o they’re not going to follow it.”

In Midland Funding LLC v. Johnson, the Court held 5-3 (with Justice Breyer joining the conservatives) that a creditor does not violate the Federal Debt Collection Practices Act by filing a proof of claim in bankruptcy court for a debt it could not otherwise collect due to the statute of limitations. In the Wall Street Journal, Jess Bravin provides some real world context for the “big business” of collecting time-barred debts. Bloomberg has more here. And in Howell v. Howell, the Court held that a veteran who waives military retirement pay in favor of disability payments does not have to indemnify his spouse for the lost retirement. Amy Howe of SCOTUSblog provides more information and explanation.

The Court will have Conference on Friday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when they do.

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