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

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