Justices release financial disclosures

Justices release financial disclosuresYesterday the Administrative Office of the U.S. Courts released the 2017 financial disclosure reports for the justices of the Supreme Court. The reports are relatively opaque – they indicate the value of investments only in a wide range, for example – and do not include the value of the real estate in which the justices […]

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Justices release financial disclosures

Yesterday the Administrative Office of the U.S. Courts released the 2017 financial disclosure reports for the justices of the Supreme Court. The reports are relatively opaque – they indicate the value of investments only in a wide range, for example – and do not include the value of the real estate in which the justices make their homes. But they nonetheless shed light on the justices’ investment holdings (including potential conflicts of interest) and travel, their work outside the court, and even the gifts that they receive.

Here are a few highlights from the reports:

  • Some justices received income from books that they have written (or plan to write). Justice Neil Gorsuch reported just over $9,000 in royalties for his book, “The Future of Assisted Suicide and Euthanasia” – not bad for an academic book, much less one published nine years ago. (Interest in the book no doubt increased after Gorsuch’s nomination and confirmation last year, as court watchers (including me) purchased the book to try to glean a hint of Gorsuch’s views on assisted suicide and, perhaps, abortion.) But Gorsuch’s income from royalties was dwarfed by that of Justice Sonia Sotomayor, who received over $110,000 that she described as “advances against royalties for two books.”
  • Justice Stephen Breyer had perhaps the most interesting side job, as a juror for the prestigious Pritzker Architecture Prize. Other justices taught law school, served on the board of trustees for Colonial Williamsburg (Justice Anthony Kennedy), and served as a governing director of iCivics (Sotomayor), the civics-education group founded by retired Justice Sandra Day O’Connor.
  • Breyer’s service as a juror for the Pritzker took him to Mexico City and Lima, Peru. Here too, though, Sotomayor has the advantage in the “most exotic travel” category: She went to Arusha, Tanzania, with the American Bar Association’s Rule of Law Initiative.
  • They own a lot of stocks, bonds and rental properties. In case you were wondering, Chief Justice John Roberts still owns one-eighth of a cottage in Knocklong, County Limerick, Ireland; no word on whether it’s available for vacationers on Airbnb.
  • They don’t have a lot of debt. The only justice to report a liability was Sotomayor: a mortgage (in the $250,000 to $500,000 range) on her rental property in New York, which is valued at between $1 million and $5 million.
  • Roberts was the only justice to report a gift: an inscribed football helmet, valued at $579, from federal judges in Mississippi.
  • Kennedy, who has spent 43 years as a federal judge (on the U.S. Court of Appeals for the 9th Circuit beginning in 1975 and on the Supreme Court since 1988) seemingly has the simplest investment portfolio of any of the justices: His report indicates that he has cash in a bank account and three whole-life-insurance policies.

This post was originally published at Howe on the Court.

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Opinion analysis: “Respectful consideration,” but not deference, required on foreign-law questions

Opinion analysis: “Respectful consideration,” but not deference, required on foreign-law questionsThe Supreme Court today ruled that a U.S. court does not need to take at face value a foreign government’s word about how that country’s laws operate. Instead, the justices explained, although courts should “carefully consider” what a foreign government says about its own laws, they are not bound by those views; they can also […]

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Opinion analysis: “Respectful consideration,” but not deference, required on foreign-law questions

The Supreme Court today ruled that a U.S. court does not need to take at face value a foreign government’s word about how that country’s laws operate. Instead, the justices explained, although courts should “carefully consider” what a foreign government says about its own laws, they are not bound by those views; they can also take into account other materials that might shed light on what the foreign law at issue means. In our global economy, in which resolving cases brought under U.S. law in U.S. courts can also require an understanding of foreign laws, the decision is an important one.

The case was a victory for Animal Science, a Texas-based company that uses Vitamin C in the livestock supplements it manufactures. In 2005, the company sued Hebei Welcome, a Chinese company, in U.S. courts, alleging that Hebei Welcome and other Chinese manufacturers had fixed the prices of the Vitamin C that they sold to the United States – a violation, the company said, of U.S. antitrust laws.

A federal appeals court ruled that Animal Science’s claims should be thrown out. It explained that U.S. courts should defer to evidence provided by the Chinese government indicating that Chinese law required Hebei Welcome and the other companies to agree on their prices and quantities. Such deference, the U.S. Court of Appeals for the 2nd Circuit emphasized, is appropriate whenever a foreign government, as here, “directly participates” in a case in U.S. courts by offering sworn evidence about “the construction and effect of its laws and regulations” and that evidence is “reasonable under the circumstances presented.”

Animal Science challenged that decision in the Supreme Court, which today invalidated the 2nd Circuit’s decision on the ground that it gave too much deference to the Chinese government’s views. In a 12-page unanimous opinion by Justice Ruth Bader Ginsburg, the court pointed to Federal Rule of Civil Procedure 44.1, which specifically indicates that, when determining what a foreign law means, courts “may consider any relevant material or source,” even if it isn’t submitted by one of the parties and even if it would not necessarily be admissible in court. This means, the court explained, that although federal courts “should carefully consider a foreign state’s views about the meaning of its own laws,” they are “neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials” – particularly when the foreign government has made inconsistent statements about what its laws require or when its interpretation comes during the course of litigation over that question. The court also emphasized that there is no “single formula or rule” to apply whenever foreign governments weigh in on the content of foreign law; instead, it suggested, courts should consider factors such as the “clarity, thoroughness, and support” of the foreign government’s interpretation; the statement’s “context and purpose”; “the transparency of the foreign legal system”; “the role and authority of the entity or official offering the statement”; and “the statement’s consistency with the foreign government’s past positions.”

Turning to the dispute before it, the court deemed the 2nd Circuit’s “unyielding rule” to be “inconsistent with Rule 44.1.” In particular, the court observed, the 2nd Circuit focused so closely on the statement by the Chinese government that it did not consider evidence in the record before the district court that pointed in the other direction – for example, China’s statement to the World Trade Organization averring that the Chinese government was no longer regulating exports from China.

While emphasizing that it was not ruling on whether Chinese law indeed required the defendants in this case to fix prices for Vitamin C, the court made clear that, in its view, “the materials identified by the District Court were at least relevant” to the weight that the Chinese government’s views should receive. The justices therefore sent the case back to the lower courts for them to take another look at the question.

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Opinion analysis: Court strikes down Minnesota ban on “political” apparel at the polls

Opinion analysis: Court strikes down Minnesota ban on “political” apparel at the pollsWhen Minnesota voters go to the polls in November, they’ll likely have more wardrobe options than the last time the state held an election. That’s because this morning the Supreme Court ruled that a state law prohibiting voters from wearing clothing or other apparel containing political messages to the polls violates the First Amendment. Minnesota […]

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Opinion analysis: Court strikes down Minnesota ban on “political” apparel at the polls

When Minnesota voters go to the polls in November, they’ll likely have more wardrobe options than the last time the state held an election. That’s because this morning the Supreme Court ruled that a state law prohibiting voters from wearing clothing or other apparel containing political messages to the polls violates the First Amendment. Minnesota had defended the law as a measure to ensure an “orderly and controlled environment” at the polls, but today the justices agreed with the challengers that the law is too vague. However, the justices left open the possibility that the state could pass a new law regulating apparel at the polls, as long as that law is more targeted.

Chief Justice Roberts with opinion in Minnesota Voters Alliance v. Mansky (Art Lien)

The dispute arose in 2010, when Andrew Cilek went to his local polling place to vote. Cilek was wearing a T-shirt bearing (among other things) the Tea Party logo and the message “Don’t Tread on Me,” as well as a button with the message “Please I.D. Me,” often worn by opponents of voter fraud. When an election worker told him that he would have to take off or cover up the T-shirt and button, Cilek refused. He was eventually allowed to vote, but an election worker recorded his name and address.

Cilek and the Minnesota Voters Alliance, a group that describes itself as a “nonpartisan political organization” made up of “citizens, volunteers, and experts committed to safeguarding and improving our elections process,” went to court to challenge the law as a violation of the First Amendment’s guarantee of free speech. The U.S. Court of Appeals for the 8th Circuit upheld the law, but today the Supreme Court – by a vote of 7-2 – reversed.

In an opinion by Chief Justice John Roberts, the majority emphasized that states have the right to try to ensure a peaceful polling place. Moreover, because polling places are, “at least on Election Day, government-controlled property set aside for the sole purpose of voting,” restrictions on speech there are subject to a relatively low bar: The restrictions simply have to be reasonable.

But Minnesota’s ban on “political” apparel fails even that “forgiving” test, the majority concluded, because both the text of the law and the state’s interpretations of it provide so little guidance about what kind of apparel may or may not be worn to the polls. For example, the court observed, the word “political” could include “a button or T-shirt merely imploring others to ‘Vote!’” And some of the state’s efforts to provide more guidance on what apparel is allowed, through a policy distributed in 2010, the court suggested, may make things murkier, rather than clearer. The court noted that the policy would bar “issue oriented material designed to influence or impact voting,” such as the “Please I.D. Me” buttons worn by Cilek and his colleagues, even though there was no voter I.D. requirement on the ballot. “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable,” the court stressed.

After lamenting the lack of guidance in the Minnesota law at issue, the court then tried to provide a little guidance of its own. While making clear that it was not endorsing the constitutionality of such laws, the court noted that other states restrict apparel at the polls “in more lucid terms”: California bars signs and apparel that advocate for or against candidates or measures on the ballot, and Texas prohibits apparel “relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.” The court also appeared to confirm in a footnote that states “may prohibit messages intended to mislead voters about voting requirements and procedures.” But here, the court concluded, Minnesota has not provided the kind of “objective, workable standards” needed to pass muster under the First Amendment.

Justice Sonia Sotomayor dissented, in a relatively brief opinion joined by Justice Stephen Breyer. Sotomayor agreed with the majority that states can place at least some restrictions on apparel at the polling place, but she would have asked the Minnesota Supreme Court “for a definitive interpretation of the political apparel ban,” “which likely would obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today.”

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No new grants today

No new grants todayThis morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their merits docket for the next term. The justices’ failure to act on Arlene’s Flowers v. Washington, a closely watched case involving issues similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission, […]

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No new grants today

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their merits docket for the next term.

The justices’ failure to act on Arlene’s Flowers v. Washington, a closely watched case involving issues similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission, on which the court ruled last week, was perhaps the most noteworthy aspect of today’s order list. In Masterpiece, the justices ruled in favor of Jack Phillips, a Colorado baker who refused to make a custom wedding cake for a same-sex couple because he believed that doing so would violate his religious beliefs. The opinion by Justice Anthony Kennedy emphasized that the Colorado administrative agency that ruled against Phillips had treated him unfairly by being hostile to his religious beliefs.

In Arlene’s Flowers, the justices have been asked to review the case of Barronelle Stutzman, a 72-year-old florist in Washington state who cited her religious beliefs to explain her refusal to do the flowers for a same-sex wedding ceremony. After the Washington Supreme Court upheld a ruling that she had violated the state’s law barring discrimination based on sexual orientation, Stutzman asked the justices to review the state court’s decision.

Stutzman’s case has been on hold for several months, presumably until the justices issued their decision in Masterpiece. In a brief filed after that decision, Stutzman’s attorneys – who also represented Phillips – urged the justices to, at the very least, send her case back to the lower courts for them to consider “evidence of government hostility” to Stutzman’s faith.

The state pushed back, describing Stutzman’s claims in her supplemental brief as “irrelevant and misleading,” but the justices did not act on the case today; they will consider it again at their private conference on Thursday. An announcement on the fate of the case could come as early as Monday, June 18, at 9:30 am.

The justices asked the U.S. solicitor general to weigh in on three cases, all arising out of lawsuits by U.S. government employees who were killed or injured in the 1998 bombings of U.S. embassies in Kenya and Tanzania. The plaintiffs allege that Sudan provided support for al-Qaeda, which carried out the attacks, and the issues in the cases center on the Foreign Sovereign Immunities Act, which specifies when a foreign government may be sued in U.S. courts.

This post was originally published at Howe on the Court.

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Opinion analysis: Court rejects constitutional challenge to state law on insurance policies after divorce

Opinion analysis: Court rejects constitutional challenge to state law on insurance policies after divorceThis morning the Supreme Court ruled that a Minnesota woman should not receive the money from her ex-husband’s life insurance policy even though she was still his beneficiary when he died in 2011, four years after their divorce. The man’s children had argued that they should get the money because a state law passed in […]

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Opinion analysis: Court rejects constitutional challenge to state law on insurance policies after divorce

This morning the Supreme Court ruled that a Minnesota woman should not receive the money from her ex-husband’s life insurance policy even though she was still his beneficiary when he died in 2011, four years after their divorce. The man’s children had argued that they should get the money because a state law passed in 2002 specifies that when one spouse designates the other as his life-insurance beneficiary, that designation is automatically revoked if the couple divorces. By a vote of 8 to 1, the justices agreed, rejecting the woman’s argument that the 2002 law violates the Constitution’s contracts clause, which bars the states from enacting any laws “impairing the obligation of contracts.”

The ruling came in the case of Ashley and Antone Sveen, whose father Mark married Kaye Melin in 1997. After 10 years of marriage, the couple divorced – but Mark did not change his designation of Kaye as the primary beneficiary of his life-insurance policy before he died. Pointing to the 2002 law, Ashley and Antone claimed that they should receive the money, but a federal appeals court ruled for Kaye, on the ground that applying the law to a policy that was in effect before the law was enacted would violate the contracts clause.

Today the Supreme Court, in an opinion by Justice Elena Kagan, reversed. Kagan began by conceding that the contracts clause limits the states’ power to pass laws that interfere with pre-existing contracts, but she stressed that such restrictions are not absolute. To determine when a law “crosses the constitutional line,” she explained, the court first examines whether the law substantially impairs the relationship created by the contract.

Here, Kagan concluded, the Minnesota law does not – and therefore passes muster. First, Kagan acknowledged that the law does change the beneficiary designated by the policyholder. But, she stressed, legislators passed the law because they wanted to take into account what the policyholder would have wanted. And although “there are exceptions,” she posited, most people who get divorced don’t want their money to go to their former spouses; they simply forget to change their beneficiary designations.

Second, Kagan continued, it’s not very likely that policyholders will even assume that their beneficiary designations will remain unchanged after a divorce. This is especially true, she noted, because “divorce courts have wide discretion to divide property” – including life insurance policies – “between spouses when a marriage ends.”

Third and finally, Kagan pointed out, it is easy for a policyholder who wants to keep his former spouse as a beneficiary even after divorce to do so: All he has to do is notify his insurance company – an obligation that falls easily within the kind of “minimal paperwork burdens” that the Supreme Court has allowed other laws to impose without violating the contracts clause.

Justice Neil Gorsuch was the lone dissenter. He acknowledged that the “judicial power to declare a law unconstitutional should never be lightly invoked.” In his view, though, the court should have done exactly that because “the framers were absolute” when they drafted the contracts clause: If a law creates any impairments to a contract, it violates the clause – no exceptions. But even if you agree that the contracts clause only bars substantial impairments, he continued, the Minnesota law here still violates the Constitution, because a policyholder’s choice of a life-insurance beneficiary is “the whole point” of the policy.

Gorsuch also suggested that the reasoning on which the court relied to uphold the law is inconsistent. On the one hand, he noted, the court contended that the law is based on the premise that policyholders may forget to update their beneficiary designations after their divorce. That rationale, he argued, cannot be reconciled with the court’s assertion that the policyholder who wants to keep a former spouse as his beneficiary can simply notify the insurance company to that effect. “The statute,” Gorsuch asserted, “cannot simultaneously be necessary because people are inattentive to the details of their insurance policies and constitutional because they are hyperaware of those same details.”

This post was originally published at Howe on the Court.

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Opinion analysis: Justices rule for Ohio in voter-registration dispute (Updated)

Opinion analysis: Justices rule for Ohio in voter-registration dispute (Updated)[NOTE: This post, originally published at 11:45 a.m., was updated with additional analysis at 12:58 p.m.] The Supreme Court today rejected a challenge to one of the practices used by Ohio to remove voters from the state’s voter rolls. By a vote of 5-4, the justices agreed that the practice under question – which cancels […]

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Opinion analysis: Justices rule for Ohio in voter-registration dispute (Updated)

[NOTE: This post, originally published at 11:45 a.m., was updated with additional analysis at 12:58 p.m.]

The Supreme Court today rejected a challenge to one of the practices used by Ohio to remove voters from the state’s voter rolls. By a vote of 5-4, the justices agreed that the practice under question – which cancels the registration of voters who do not go to the polls and who then fail to respond to a notice – does not violate federal laws governing voter registration. The decision could mean that more states will adopt similar laws to trim their voter rolls, particularly when (as the majority observed today) roughly one in eight voter registrations is “either invalid or significantly inaccurate.” Justice Sonia Sotomayor criticized the ruling in her dissent today, predicting that it could have a disproportionate effect on the poor, the elderly and minorities.

Justice Alito with opinion in Husted v. A. Philip Randolph Institute (Art Lien)

The case arose when U.S. Navy veteran Larry Harmon went to his local polling place in Ohio to vote in 2015. Harmon learned that, although he had lived in the same place for more than 16 years, he had been removed from the voter rolls because he had not voted in 2009 and 2010 and then also had not responded – because he said he didn’t remember receiving it – to a notice that the state elections board had sent him in 2011 to confirm his eligibility.

Harmon and Ohio civil rights groups went to court, arguing that Ohio’s practice conflicted with two federal voting laws. The first law, the National Voter Registration Act, was enacted in 1993 to advance two goals: Making it easier for would-be voters to register while at the same time guaranteeing “accurate and current” registration lists. The second law, the 2002 Help America Vote Act, directed the states to maintain a system to cull ineligible voters from their lists. Congress indicated that states can remove voters “who have not responded to a notice and who have not voted in 2 consecutive” federal elections, but it added that “no registrant may be removed solely by reason of a failure to vote.”

In a decision by Justice Samuel Alito, the court emphasized that subsection (d) of the NVRA specifically allows states to remove a voter who “has failed to respond to a notice” and “has not voted or appeared to vote.” Indeed, the majority stressed, not only “are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory.” The Ohio practice at issue in this case, the majority concluded, “follows subsection (d) to the letter”: “It is undisputed that Ohio does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years.”

For the five justices in the majority – Alito, along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch – the extent to which Ohio’s practice hews to subsection (d) was enough. And they rejected the challengers’ argument that the state’s practice violates the ban on removing voters from the registration lists “solely by reason of a failure to vote” because it uses the failure to vote as the trigger for sending the return card. The majority reasoned that Ohio’s practice would violate the “failure-to-vote” clause “only if it removes registrants for no reason other than their failure to vote.” But here, the majority reiterated, the state “removes registrants only if they have failed to vote and have failed to respond to a notice.”

Justice Stephen Breyer dissented from today’s decision, in an opinion joined by Sotomayor and Justices Ruth Bader Ginsburg and Elena Kagan. Breyer would have struck down Ohio’s practice not only because it violates the provision prohibiting states from removing voters from their list “solely by reason of a failure to vote,” but also because he believes that Ohio is not complying with its obligation, under the same federal laws, to make a “reasonable effort” to remove ineligible voters from its lists. Breyer complained that the state reads too much into a voter’s failure to return a notice to confirm his eligibility. There is no reason to assume such voters have moved, Breyer suggested; for whatever reason, he posited, it’s simply human nature that people don’t return cards that they get in the mail.

Alito pushed back against the Breyer dissent, criticizing its reliance on its “own cobbled-together statistics” and “a feature of human nature of which the dissent has apparently taken judicial notice.” Breyer may not think that a voter’s failure to confirm his eligibility by taking what Alito characterized as “the simple and easy step of mailing back the preaddressed, postage prepaid card” or updating his information online has any significance, Alito wrote, but Congress disagreed. What Breyer’s dissent really boils down to, said Alito, is a “policy disagreement.” But this case is about interpreting federal statutes, Alito emphasized: “We have no authority to second-guess Congress” or to decide whether Ohio’s practice is the best way to keep its voter rolls current. “The only question before us,” Alito concluded, is whether the practice “violates federal law. It does not.”

The strongest objections to today’s ruling came from Sotomayor, who wrote alone to complain that the court’s opinion “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” Sotomayor pointed to a “friend of the court” brief filed in the case indicating that “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” in the last few years, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” Moreover, she added, most states have found a way to keep their voter-registration lists accurate without relying on the failure to vote as a trigger for their schemes. “Today’s decision,” Sotomayor concluded, “forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”

Alito was equally dismissive of the Sotomayor dissent. He observed that the dissent “says nothing about what is relevant in this case,” because no one had argued that the practice ran afoul of a provision in the NVRA barring discriminatory state programs; indeed, he noted, Sotomayor had not actually “pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.” Strong words again, but almost certainly not the last ones we will see at the Supreme Court this month.

This post was originally published at Howe on the Court.

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FAQs: Announcements of orders and opinions

FAQs: Announcements of orders and opinionsThis post — which is an updated version of posts that we have published in earlier terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs. If you have a question that you don’t see answered here, please feel free to ask it during today’s live […]

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FAQs: Announcements of orders and opinions

This post — which is an updated version of posts that we have published in earlier terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs. If you have a question that you don’t see answered here, please feel free to ask it during today’s live blog.

ORDERS

Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the court took at its most recent conference, which are reflected in a document (“the order list”) that the court releases to the public. The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert,” short for “certiorari”), but the court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits.

Question:  What is a “CVSG”?

Answer: “CVSG” stands for “call for the views of the solicitor general.” In most cases in which someone is seeking review of a lower court’s decision, the Supreme Court will issue a straightforward grant or denial. But sometimes the court will instead ask the government for its views on what the court should do with a particular petition for review, particularly in cases in which the government isn’t a party but may still have an interest — for example, because the interpretation of a federal statute is involved. In this scenario, the court will issue an order in which it invites the U.S. solicitor general, the government’s chief lawyer before the Supreme Court, to file a brief “expressing the views of the United States.” It isn’t an “invitation” in the sense that the federal government gets to decide whether it wants to file a brief at all, because the court expects the government to file. There is no deadline by which the government is required to file the brief; when the brief is filed, the government’s recommendation, although not dispositive, will carry significant weight with the court.

Question:  What does it mean to relist a case?

Answer:  When a case is relisted, that means the justices do not grant or deny review, but instead will reconsider the case at their next conference. This will be reflected on the case’s electronic docket once the docket has been updated: You will see the words “DISTRIBUTED for Conference of [fill in date],” and then the next entry in the docket will usually say “DISTRIBUTED for Conference of [next conference after the previous entry, whenever that is].” It is almost impossible to know exactly what is happening when a particular case is relisted, but a few different things could be going on. One justice could be trying to pick up a fourth vote to grant review, one or more justices just want to look more closely at the case, a justice could be writing an opinion about the court’s decision to deny review, or the court could be writing an opinion to summarily (that is, without briefing or oral argument on merits) reverse the decision below. In 2014, the court appears to have adopted a general practice of granting review only after it has relisted a case at least once; although we don’t know for sure, presumably the court uses the extra time resulting from a relist to make sure that the case is a suitable one for its review.

OPINIONS

Question: What opinions will the court issue today?

Answer: Unlike some other courts, the Supreme Court doesn’t announce in advance which cases will be decided on a particular day. So normally, we don’t know which opinions we will get on a particular day. The only time we have a good sense is the very last day, when the court issues its final rulings.

Question:  How many opinions will the court issue?

Answer:  The court also does not announce in advance how many opinions it expects to release on any particular day.

Question: What’s the last day the court will issue opinions?

Answer:  We don’t know what the last day of the term will be. Monday, June 25, is currently the last day that the justices are scheduled to sit on the bench, but if they haven’t released all of their opinions by then, they could add additional decision days.

Question: If a case is not decided by the end of the term, will it be reargued?

Answer: Ordinarily, yes, the court will order reargument during the next term. But it’s relatively rare for the court to order reargument, particularly if it hasn’t asked the lawyers in the case to address a new question.

Question: Who announces “per curiam” opinions (that is, opinions without a named author)?

Answer: Per curiam opinions in cases that were not briefed and argued on the merits are typically issued with the order list and not otherwise announced. The court will also issue a one-sentence per curiam opinion in the event of a tie; that normally comes from the chief justice.

Question: How does the court decide the order in which opinions will be announced on a given day?

Answer: The justices normally announce their opinions in order of reverse seniority, with the chief justice going last. This means that if Justice Neil Gorsuch has an opinion to announce, he goes first, followed by Justice Elena Kagan, Justice Sonia Sotomayor, and so on through the chief justice, who is always the most senior justice. However, there have been at least two exceptions to this general reverse-seniority rule so far this term, when the justices have announced decisions in two cases involving similar issues and it makes more sense to announce one first, even if it means disrupting the normal order for announcements. The justice who is announcing a decision will read a summary of the opinion out loud in the courtroom; the audio of this announcement will be available later at the Oyez Project’s website. A justice who dissents also has the option to read a summary of the dissent from the bench, but this is usually done only when the dissenting justice feels especially strongly about the case; the decision to read a dissent from the bench is generally regarded as a “statement” by the dissenting justice.

Question:  How do you get the results in the cases? Do you have someone in the courtroom?

Answer:  No electronic devices are allowed in the courtroom, and therefore no blogging can be done from the courtroom. As SCOTUSblog’s reporter, I am in the press room. As soon as the court begins to announce an opinion in the courtroom, the court’s Public Information Office hands out paper copies of the opinion to the reporters in the press room. I quickly review the opinion and then type the result into the live blog. Because it can often take a few minutes for the author of an opinion to get to the bottom line while reading a summary of the decision, this means that we usually have the result in the case before the spectators in the courtroom do. The opinions are usually available on the court’s website shortly after they are released at the court.

Question: Who decides which justice will write which opinion?

Answer:  Shortly after the oral argument, the justices vote on a case. The most senior justice in the majority gets to assign the author of the opinion. He can assign it to himself or to a colleague he thinks will be able to hold the majority.

Question:  After voting, while the opinions are being drafted, do the justices ever change their votes?

Answer:  The justices do sometimes change their votes. But unless the news leaks from the court, the public generally does not know for sure that this has happened until much later – for example, when a justice leaves the court and releases her papers.

Question:  Does the court notify the lawyers in advance when it is going to issue an opinion in their case?

Answer:  The court does not notify any of the lawyers in a case before it issues an opinion. So unless it is the last day before the summer recess, the lawyers (like the rest of us) don’t know whether they will get a decision in their cases. But even without knowing when they will get a decision, some lawyers like to attend the opinion announcements in the hope that the court will issue a decision that day.

Question:  Can the public attend the sessions in which the court announces its decisions, or do you need a press pass?

Answer:  The court usually makes at least 50 seats in the courtroom available to the public when the court is in session to hear arguments or announce opinions. But lines can be long, especially as we get closer to the end of June and the chances of getting an opinion in one of the high-profile cases increase. (Journalist and teacher Steven Mazie chronicled his experiences bringing a class to oral argument at the Supreme Court last year; much of his advice also applies to attending opinion announcements.) To sit in the public seats in the courtroom, you don’t need to wear a suit, but you will want to dress neatly. And get there early!

Question:  Do I have any other options to follow the action in the courtroom? Is there video or audio coverage of the opinion announcement?

Answer:  There are no cameras capturing the proceedings in the courtroom, so video is not available – live or otherwise. Nor is there live audio coverage of the opinion announcements: The proceedings are recorded, but the audio is not available until much later.

Question:  What is all the talk about boxes?

Answer:  Shortly before 10 am, the PIO brings out copies of the opinions in sealed boxes to distribute to the press. The number of boxes is often a rough proxy for how many opinions we are likely to get. But, as someone has observed on the live blog, that information is really only relevant for about ten minutes, because pretty soon we find out how many opinions there actually are.

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Justices throw out lower-court ruling in teen abortion case

Justices throw out lower-court ruling in teen abortion caseThe justices handed the federal government a partial victory today in Azar v. Garza, in which it had asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The teenager, known in the litigation as […]

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Justices throw out lower-court ruling in teen abortion case

The justices handed the federal government a partial victory today in Azar v. Garza, in which it had asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The teenager, known in the litigation as “Jane Doe,” had been caught trying to enter the United States illegally; the federal government had refused to allow her to leave the shelter where she was being held in custody, arguing that it did not want to facilitate her abortion. The justices today granted the government’s request to throw out the D.C. Circuit’s ruling, but it rejected the government’s plea to sanction the teen’s lawyers, whom the government accused of misleading it about when Doe would obtain her abortion.

In October 2017, the D.C. Circuit ruled for Doe, who had an abortion the next day. The government told the justices that it would have sought Supreme Court review, but was unable to do so because the teenager’s lawyers had not kept it informed about the timing for the procedure. Therefore, the government argued, the appeal is moot and the Supreme Court should not allow the lower court’s decision to serve as future precedent, particularly because it is not the government’s fault that the case is moot. As this blog’s John Elwood has explained, this doctrine, known as Munsingwear vacatur, is based on the theory that “the party seeking review shouldn’t be stuck with a decision it was trying to overturn when it lost that opportunity through no fault of its own.”

The justices first considered the government’s petition at a private conference in early January, but they did not act on it until today – prompting speculation that the court was fiercely divided and possibly drafting multiple opinions. But the five-page unsigned opinion that accompanied the justices’ disposition of the case today was relatively subdued, and there were no public dissents. If anything, the taut document had the feel of a carefully negotiated compromise, particularly in the way it dealt with the sanctions question.

After recounting the history of the case, the court explained that it fell “squarely within the Court’s established practice”: The only claim on which the D.C. Circuit ruled, the teenager’s individual claim seeking an abortion, “became moot after the abortion.” There is no dispute, the court reasoned, that the teenager and her lawyers were the ones who moved quickly to allow her to get an abortion, allowing her to keep the advantage of the D.C. Circuit judgment in her favor.

Having given the government part of what it wanted – a ruling throwing out the D.C. Circuit’s opinion, so that it cannot serve as precedent going forward – the court then turned down the government’s suggestion that it should sanction the teenager’s lawyers – who, the government contended, made “what appear to be material misrepresentations and omissions” in an effort to “thwart” Supreme Court review. The justices acknowledged that they take such accusations “seriously” and stressed that “all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court.” “Particularly in fast-paced, emergency proceedings like those at issue here,” the justices continued, “it is critical that lawyers and courts alike be able to rely on one another’s representations.” But at the same time, the court observed, “lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Court need not delve into the factual disputes raised by the parties in order to answer the Munsingwear question here.”

The justices denied review in the case of Carlos Trevino, who was sentenced to death for his role in the 1996 sexual assault and murder of Linda Salinas. Trevino’s appeal centered on evidence that, he argued, his trial attorney should have introduced (and which was provided to a federal trial judge as part of his later efforts to overturn his conviction) – for example, that Trevino suffered from fetal alcohol syndrome and was abused as a child. The U.S. Court of Appeals for the 5th Circuit ruled that, even if Trevino was correct that the issue was properly before the federal courts and that his trial attorney’s performance was inadequate, he still could not win because he was not prejudiced by his lawyer’s poor performance. The court of appeals explained that, even if the jury had heard the new evidence, it likely still would have sentenced Trevino to death because the new evidence was “double-edged” – that is, it could have also caused the jury to be less sympathetic to Trevino. Trevino asked the justices to weigh in on the 5th Circuit’s ruling on the new evidence, as well as more broadly on the standard for determining whether a defendant in a death-penalty case was prejudiced by his lawyer’s inadequate representation, but they declined to do so.

Justice Sonia Sotomayor dissented from today’s denial, in a 13-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor complained that the 5th Circuit’s holding that Trevino could not prevail because the new evidence was “double-edged” “is in direct contravention of” the Supreme Court’s cases, which have “long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation.” But because of the 5th Circuit’s “flagrant error,” she continued, Trevino “remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.” “That result,” Sotomayor concluded, “is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.”

The justices did not add any new cases to their merits docket for next term. They asked the federal government to weigh in on one new case, Airline Service Providers v. Los Angeles World Airports, involving the “market participant” exception to federal pre-emption. There is no deadline for the government to file its brief in the case.

This post was originally published at Howe on the Court.

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Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case [Updated]

Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case [Updated][NOTE: This post was updated at 2:17 p.m. after its original publication at 12:04 p.m.] The Supreme Court ruled today in favor of Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. This was one of the […]

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Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case [Updated]

[NOTE: This post was updated at 2:17 p.m. after its original publication at 12:04 p.m.]

The Supreme Court ruled today in favor of Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. This was one of the most anticipated decisions of the term, and it was relatively narrow: Although Phillips prevailed today, the opinion by Justice Anthony Kennedy rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule at all on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

Justice Kennedy announces opinion in Masterpiece Cakeshop (Art Lien)

The dispute that led to today’s ruling began back in 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a bakery outside Denver, to order a cake to celebrate their upcoming wedding. But Jack Phillips, the owner of the bakery and a devout Christian, refused the couple’s request because he is not willing to design custom cakes that conflict with his religious beliefs. A Colorado civil-rights agency ruled that Phillips had violated the state’s antidiscrimination laws and told him that, if he wanted to make cakes for opposite-sex weddings, he would have to do the same for same-sex weddings. After a Colorado court upheld that ruling, Phillips went to the U.S. Supreme Court last year.

Almost six months to the day after the oral argument, the justices today handed Phillips a victory, even if not necessarily the ruling that he and his supporters had hoped for. Kennedy, the author of some of the court’s most important gay-rights rulings, began by explaining that the case involved a conflict between two important principles. On the one hand, society has recognized that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and their rights are protected by the Constitution. On the other hand, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” But even if those objections are protected, Kennedy explained, the Supreme Court’s precedents make clear that in some cases the right to the free exercise of religion is not absolute and can instead be limited by neutral laws that apply to everyone. It is clear, Kennedy continued, that in at least some scenarios sincerely held religious beliefs can trump such laws – for example, a member of the clergy who objects to same-sex marriage cannot be required to perform such marriages. But at the same time, Kennedy explained, the exception cannot be allowed to swallow the rule, with the result that “a long list” of people would be allowed to refuse to provide services for same-sex marriages.

In this case, Kennedy suggested, Phillips found himself on the horns of a dilemma: Because he regarded his craft as one in which he uses “his artistic skills to make an expressive statement,” making a cake for a same-sex couple would require him to convey a message that is inconsistent with his religious beliefs. This dilemma was further complicated, Kennedy noted, by the “background of legal principles and administration of the law in Colorado at that time”: Colorado did not recognize same-sex marriages, and state law also gave Phillips “some latitude to decline to create specific messages the storekeeper considered offensive.”

But the critical question of when and how Phillips’ right to exercise his religion can be limited had to be determined, Kennedy emphasized, in a proceeding that was not tainted by hostility to religion. Here, Kennedy observed, the “neutral and respectful consideration to which Phillips was entitled was compromised” by comments by members of the Colorado Civil Rights Commission. At one hearing, Kennedy stressed, commissioners repeatedly “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” And at a later meeting, Kennedy pointed out, one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” “This sentiment,” Kennedy admonished, “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” Moreover, Kennedy added, the commission’s treatment of Phillips’ religious objections was at odds with its rulings in the cases of bakers who refused to create cakes “with images that conveyed disapproval of same-sex marriage.”

Here, Kennedy wrote, Phillips “was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.” Because he did not have such a proceeding, the court concluded, the commission’s order – which, among other things, required Phillips to sell same-sex couples wedding cakes or anything else that he would sell to opposite-sex couples and mandated remedial training and compliance reports – “must be set aside.”

But the majority left open the possibility that a future case could come out differently, particularly if the decisionmaker in the case considered religious objections neutrally and fairly. Other cases, the majority emphasized, “must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” Justice Ruth Bader Ginsburg dissented from the court’s ruling, in an opinion joined only by Justice Sonia Sotomayor. Ginsburg stressed that there “is much in the Court’s opinion with which I agree,” but she “strongly” disagreed with the idea that the same-sex couple “should lose this case.” In particular, she argued, neither the commissioners’ statements about religion nor the commission’s disparate treatment of other bakers who refused to make cakes disapproving of same-sex marriage justified a ruling in favor of Phillips.

Justice Elena Kagan joined Kennedy’s opinion for the court, but she also filed a concurring opinion, which was joined by Justice Stephen Breyer. Kagan agreed with the Kennedy opinion that the Colorado Civil Rights Commission had not given Phillips and his religious objections the kind of “neutral and respectful consideration” to which he was entitled. But she would not give any weight to the commission’s treatment of bakers who had declined to make cakes bearing messages that disparaged same-sex marriage, because in her view the latter had not violated the Colorado law at the heart of Phillips’ case.

In a concurring opinion joined by Justice Samuel Alito, Justice Neil Gorsuch pushed back against both the Ginsburg and the Kagan opinions. In his view, the different bakers’ cases – refusing to make cakes for a same-sex marriage and refusing to make cakes disparaging same-sex marriage – were, from a legal perspective, similar, and the commission was wrong to treat them differently just because it regarded Phillips’ beliefs as “offensive.” Using strong language, Gorsuch emphasized that, in the United States, “the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”

Justice Clarence Thomas wrote separately, in an opinion joined by Gorsuch, to address an issue that the court did not decide: whether an order mandating that Phillips bake cakes for same-sex weddings violates his right to free speech. In Thomas’ view, Phillips’ creation of custom wedding cakes is exactly the kind of “expressive” conduct protected by the First Amendment. Requiring Phillips to make such cakes for same-sex marriage, even when it will convey a message that “he believes his faith forbids,” violates his First Amendment rights.

“Because the Court’s decision vindicates Phillips’ right to free exercise” of his religion, Thomas concluded, “it seems that religious liberty has lived to fight another day.” Today’s ruling, however, casts at least some doubt on how easy it will be for others in Phillips’ position to prevail going forward, given the majority’s emphasis on the unsettled state of the same-sex marriage laws when Craig and Mullins came to Phillips in 2012 and the open hostility displayed by the Colorado Civil Rights Commission at Phillips’ hearings. Thomas’ discussion of Phillips’ free-speech claim seemed to acknowledge this, with his observation that, “in future cases, the freedom of speech could be essential to preventing” the Supreme Court’s 2015 decision in Obergefell v. Hodges, recognizing a constitutional right to same-sex marriage, from being used to “portray everyone who does not” agree with that ruling “as bigoted and unentitled to express a different view.” In short, today’s ruling seemed to leave open as least as many questions as it resolved. The only thing we can be sure of is that these issues will return to the courts, and in all likelihood the Supreme Court, before long.

This post was originally published at Howe on the Court.

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Justices stay out of Arkansas abortion case

Justices stay out of Arkansas abortion caseThe Supreme Court issued orders this morning from the justices’ private conference last week, and the big news out of today’s order list was what the justices did not do: They did not add any new cases to their merits docket for next term, and they did not ask the U.S. solicitor general to weigh […]

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Justices stay out of Arkansas abortion case

The Supreme Court issued orders this morning from the justices’ private conference last week, and the big news out of today’s order list was what the justices did not do: They did not add any new cases to their merits docket for next term, and they did not ask the U.S. solicitor general to weigh in on any cases. They also did not act on several of the high-profile petitions that they have considered at several conferences in recent weeks. And perhaps most significantly, they did not intervene in a challenge to an Arkansas law regulating medication abortions – that is, abortions performed in early pregnancy by administering drugs, rather than surgically.

The Arkansas law at issue requires doctors who prescribe abortion-inducing drugs to have an agreement with another doctor who will agree to handle emergencies and has privileges to admit patients to a nearby hospital. The lawsuit was filed by Planned Parenthood, which runs reproductive-health clinics in Fayetteville and Little Rock that provide (among other things) medication abortions. Planned Parenthood says that it could not find a doctor willing to enter into the agreement required by the law; as a result, it contends, if the law goes into effect, it will not be able to provide medication abortions at its clinics and the state would have “only one remaining abortion provider.”

A federal district judge temporarily barred the state from implementing the law, but the U.S. Court of Appeals for the 8th Circuit reversed. It ruled that the law cannot be blocked without “concrete district court findings estimating the number of women” who would either postpone the procedure or pass it up altogether.

Planned Parenthood asked the Supreme Court to intervene, telling the justices that the Supreme Court’s abortion cases do not call for the kind of showing that the 8th Circuit required. Indeed, Planned Parenthood suggested, the 8th Circuit’s decision is so plainly wrong that the Supreme Court could reverse it without seeking additional briefing and oral argument on the merits.

But today the justices denied Planned Parenthood’s petition for review without comment, after considering it at only one conference. There is no way to know why the justices declined to step in, but the preliminary nature of the proceedings may have played a role.

The justices once again did not act on another case involving abortion: Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The justices have now considered the case at over a dozen conferences – and at nine conferences since receiving the lower-court records in late February.

The justices will meet for their next conference on Thursday, May 31; we expect orders from that conference on Monday, June 4, at 9:30 a.m.

This post was originally published at Howe on the Court.

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