This week at the court

This week at the courtWe expect orders from the October 13 conference on Monday at 9:30 a.m. The justices will meet next for their October 27 conference. The calendar for the November sitting, which begins on October 30, is available on the Supreme Court’s website.

The post This week at the court appeared first on SCOTUSblog.

This week at the court

We expect orders from the October 13 conference on Monday at 9:30 a.m. The justices will meet next for their October 27 conference. The calendar for the November sitting, which begins on October 30, is available on the Supreme Court’s website.

The post This week at the court appeared first on SCOTUSblog.

from http://www.scotusblog.com

Argument transcripts

Argument transcriptsThe transcript in National Association of Manufacturers v. Department of Defense is on the court’s website, as is the transcript in Jesner v. Arab Bank, PLC.

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Argument transcripts

The transcript in National Association of Manufacturers v. Department of Defense is on the court’s website, as is the transcript in Jesner v. Arab Bank, PLC.

The post Argument transcripts appeared first on SCOTUSblog.

from http://www.scotusblog.com

When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution

When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. ConstitutionThe first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and […]

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When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution

The first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and the rise of tyranny should any person or body control more than one of these sources of authority.

Presumably, then, the chief justice of the United States cannot serve as the president’s secretary of state. Au contraire, argued professor Saikrishna Prakash last week in a lecture at the court sponsored by the Supreme Court Historical Society. And in fact this very situation occurred in the nation’s early history. John Jay, who had been the secretary of foreign affairs under the Articles of Confederation, continued to fulfill this role in an acting capacity during the nation’s transition to the new federal government, even after he became the first chief justice. John Marshall, after becoming the fourth chief justice, also continued to serve as secretary of state for President John Adams (and briefly for President Thomas Jefferson). Perhaps more striking than these temporary overlaps, three of the first four chief justices – Jay, Marshall and Oliver Ellsworth – negotiated treaties as special envoys to foreign nations.

What to make of this double duty? Prakash suggested that these overlapping appointments reveal conceptual differences between the 18th century and today about the independence of judicial power.

Even at the start of the republic, Prakash explained, not everyone approved of this practice. Perhaps the most notorious founding father, Sen. Aaron Burr of New York – later vice president, killer of Alexander Hamilton and defendant on charges of treason – led a 1794 Senate campaign against Jay, whom President George Washington had nominated as a special envoy to negotiate a treaty with Great Britain.

Prakash quoted Burr as calling the appointment of a sitting judge to an executive-branch position “contrary to the spirit of the Constitution,” “mischievous and impolitic.” Burr and his Senate allies presented a series of arguments against Jay that may seem intuitive to a modern American audience.

Most generally, the anti-Jay forces contended that the possibility of obtaining a position within a presidential administration would corrupt judges into ruling in such a way as to impress the president and other executive officials. In addition, the supremacy clause of the Constitution declares that treaties with sovereign nations are the law of the land. As a special envoy, Jay would make law that he would then interpret as a judge. Burr and his allies pointed out as well that a chief justice who also served in a presidential cabinet might be unable to preside impartially over a president’s impeachment trial in the Senate. Finally, they wondered whether the Supreme Court needed more work if its chief justice had time to take on an additional assignment.

In contrast, Prakash maintained, Washington – the “general contractor” of the Constitution, as professor Edward Larson argued in a different society lecture – evidently did not see a constitutional problem with nominating Jay, nor did Jay with accepting the nomination. In the end, even the Senate did not object, and it sent Jay off to conduct the negotiations.

A provision in the Constitution prohibits legislators from serving in either of the two other branches. But, Prakash observed, no clause similarly limits judges from engaging in executive functions, or vice versa. Prakash noted that some delegates to the constitutional convention in Philadelphia did propose such a rule, but the group never even voted on the idea.

Although some state constitutions in the 18th century did specifically bar judicial-executive double-duty, overlap of personnel was common, Prakash reported. For instance, the governor of New Jersey at that time served as chancellor of the state’s court of appeals.

Prakash argued that the framers’ apparent acceptance of overlap between judicial and executive positions reveals that legal conceptions at the time of the framing differed from our current understanding. Within English law, the judicial power historically constituted a subcomponent of executive power. Even an independent judiciary maintains a close connection to the executive function because both involve the application of laws. James Madison once described the two sources of authority as representing “two shoots from the same stalk.”

In Prakash’s telling, Congress took other actions that reflect this conceptual merging of the two powers. For example, Congress formed two executive committees – a “sinking fund” committee to buy up debts and a minting committee to verify coins. By statute, the chief justice served on both of these committees.

Returning to Jay, Prakash suggested that political more than constitutional concerns motivated Burr and his associates, who feared Jay was too pro-British to negotiate a favorable treaty. Indeed, popular opinion largely denounced the resultant Jay Treaty. Jay – once widely seen as the natural successor to Washington as president – found his national reputation ruined. Jay did maintain popularity in New York, and he resigned from the Supreme Court to serve as the state’s governor. (However, Prakash noted, nothing in New York or constitutional law would have technically forbidden him from keeping both jobs.)

Prakash closed by acknowledging that contact between the executive and judicial branches is frowned upon today – a contrast from Washington’s frequent practice of turning to Supreme Court justices for advice.

Prakash spoke as part of the historical society’s 2017 Leon Silverman Lecture Series, which this year focuses on Supreme Court justices and presidential cabinets. On October 18, professor Cynthia Nicoletti will give a lecture entitled “Salmon Chase and the Permanency of Union.” More information is available on the society’s website.

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This week at the court

This week at the courtWe expect orders from the October 6 conference on Tuesday at 9:30 a.m. The court will hear oral argument on Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the October sitting is available on the court’s website. On Friday the justices will meet for their October 13 conference; our list of […]

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This week at the court

We expect orders from the October 6 conference on Tuesday at 9:30 a.m. The court will hear oral argument on Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the October sitting is available on the court’s website. On Friday the justices will meet for their October 13 conference; our list of “petitions to watch” for that conference will be available soon.

The post This week at the court appeared first on SCOTUSblog.

from http://www.scotusblog.com

Five justices attend Red Mass with homily addressing immigration, religious freedom

Five justices attend Red Mass with homily addressing immigration, religious freedomThis morning Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito attended the Red Mass, a Roman Catholic liturgy held annually the Sunday before the Supreme Court’s new term to invoke God’s blessing on those responsible for the administration of justice. The justices sat – by seniority, as always […]

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Five justices attend Red Mass with homily addressing immigration, religious freedom

This morning Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito attended the Red Mass, a Roman Catholic liturgy held annually the Sunday before the Supreme Court’s new term to invoke God’s blessing on those responsible for the administration of justice. The justices sat – by seniority, as always – in the first two pews at St. Matthew’s Cathedral in Washington. Noel Francisco, the newly confirmed solicitor general, and Jeffrey Wall, the former acting solicitor general, also attended the mass.

The homilist for the mass, Jose Gomez, archbishop of Los Angeles, indirectly referred to two issues before the justices this term – immigration and religious freedom.

In introducing himself at the start of his homily, Gomez noted that Los Angeles has the largest Roman Catholic congregation in the United States, which he described as an “immigrant church” with masses in over 40 languages. Although “the American dream is still a work in progress,” Gomez argued, “America is still a beacon of hope for refugees and all who long for freedom and equality under God.” “God doesn’t see color, the country we come from, or the language we speak,” Gomez preached.

Gomez also argued that “religious freedom is essential to America” because believers have led movements for justice and social change through America’s history – including movements for abolition, women’s suffrage, civil rights, farm workers, peace and the right to life.

Gomez is vice president of the United States Conference of Catholic Bishops, which has taken positions on Supreme Court cases pertaining to both issues Gomez addressed. The USCCB filed an amicus brief in support of the challengers to the Trump administration’s entry ban in Trump v. International Refugee Assistance Project, which Wall argued in the lower courts and which was recently removed from the justices’ October calendar. The USCCB filed an amicus brief in Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission supporting a devout Christian baker who claims that Colorado’s requirement that he create a wedding cake for a same-sex couple violates the free speech and free exercise clauses of the First Amendment. Last term the USCCB also filed an amicus brief for the church in Trinity Lutheran Church of Columbia, Inc. v. Comer. In an opinion written by Roberts, the court in that case held that the Missouri Department of Natural Resources’ policy of denying grants to applicants controlled by religious entities violated the free exercise clause of the First Amendment.

Gomez was not the only priest at the altar with involvement in recent Supreme Court cases. Cardinal Donald Wuerl, archbishop of Washington, was the plaintiff in Roman Catholic Archbishop of Washington v. Burwell, one of the cases consolidated as Zubik v. Burwell, a recent challenge to the Affordable Care Act’s birth-control mandate. When he was still an attorney at Jones Day, Francisco was the counsel of record for the archbishop and the other challengers in that case.

The Supreme Court’s October 2017 term begins Monday at 10 a.m., with oral argument in Epic Systems Corp. v. Lewis.

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This week at the court

This week at the courtThe October 2017 term begins on Monday. We expect additional orders from the September 25 conference on at 9:30 a.m. The court will hear oral argument on Monday, Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the October sitting is available on the court’s website. On Friday the justices will meet […]

The post This week at the court appeared first on SCOTUSblog.

This week at the court

The October 2017 term begins on Monday. We expect additional orders from the September 25 conference on at 9:30 a.m. The court will hear oral argument on Monday, Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the October sitting is available on the court’s website. On Friday the justices will meet for their October 6 conference; our list of “petitions to watch” for that conference will be available soon.

The post This week at the court appeared first on SCOTUSblog.

from http://www.scotusblog.com