Court will review census citizenship dispute this term

Court will review census citizenship dispute this termThe Supreme Court’s 2018-2019 term will end with a bang. In a brief order issued after the justices’ private conference, the court announced this afternoon that it will review a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. The court will take up the case and hear […]

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Court will review census citizenship dispute this term

The Supreme Court’s 2018-2019 term will end with a bang. In a brief order issued after the justices’ private conference, the court announced this afternoon that it will review a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. The court will take up the case and hear oral argument in the dispute – without following the normal procedure and waiting for a federal appeals court to weigh in first – in late April.

The dispute centers on the March 2018 announcement by Wilbur Ross, the Secretary of Commerce, that the 2020 census would include a question about citizenship. The Trump administration indicated that data collected from the question would help the U.S. Department of Justice to better enforce voting rights, but states and civil rights groups (among others) opposed the decision, countering that the question would make households with undocumented or Hispanic residents less likely to respond and would therefore lead to an inaccurate count.

The Supreme Court had already agreed last year to hear oral argument in a clash over the evidence in the case. In addition to the official records that Ross considered before deciding to include the citizenship question, the plaintiffs in the case – which include New York and other state and local governments – also wanted the trial court to consider other evidence, including by questioning both Ross and John Gore, who was then the head of DOJ’s civil rights division. In October, the Supreme Court prohibited the plaintiffs from questioning Ross but allowed them to question Gore and probe into other facts, and in November the justices granted the government’s request to review the evidentiary dispute, setting the case for oral argument on February 19.

But although the justices agreed to weigh in on the evidentiary dispute, they rejected the government’s request to put the trial in the case on hold. In January, the trial court issued a ruling that barred the government from including the citizenship question on the 2020 census.

Three days later, on January 18, the justices announced that they would not hear oral argument in the evidentiary dispute on February 19 after all, but they left open the possibility that they could return the case to their calendar later in the term.

One week later, the Trump administration asked the justices to review the trial court’s decision immediately, without requiring the government to appeal first to the U.S. Court of Appeals for the 2nd Circuit. The census questionnaire has to be finalized by the end of June, the government explained, which means that it would be virtually impossible to have the Supreme Court weigh in and reach a final resolution under the normal timeline.

The plaintiffs defended the trial court’s decision as correct, but they conceded that the question at the heart of the dispute is one “of national importance.” And they agreed that, if the justices believed that they would eventually grant review, the court should take the case now to resolve the dispute by the end of June.

Today’s conference was noteworthy for another reason: It was the first one that Justice Ruth Bader Ginsburg had attended since undergoing cancer surgery in late December. Additional orders from today’s conference are expected on Tuesday, February 19, at 9:30 am.

This post was originally published at Howe on the Court.

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Court releases April calendar

Court releases April calendarThe Supreme Court has released its calendar for the April sitting, which begins on April 15. Unlike the February and March sittings, which will feature only six and nine hours of argument, respectively, the April sitting is scheduled to have a full slate of 12 oral arguments – two on each of the six days […]

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Court releases April calendar

The Supreme Court has released its calendar for the April sitting, which begins on April 15. Unlike the February and March sittings, which will feature only six and nine hours of argument, respectively, the April sitting is scheduled to have a full slate of 12 oral arguments – two on each of the six days of the sitting.

The April sitting is perhaps most noteworthy for what it does not currently include: the challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. The justices had originally been scheduled to hear a dispute over evidence in the case on February 19, but last month the justices removed the case from their oral argument calendar after a federal trial court in New York ruled against the government on the merits. The Trump administration has asked the Supreme Court to bypass a federal appeals court and review that ruling this term, either in April or a special argument session in May; the justices are expected to announce this month whether they will do so.

A full list of cases scheduled for oral argument in April, along with a brief summary of the issues in each case, follows the jump.

Iancu v. Brunetti (April 15): A First Amendment challenge to a federal law that bans the registration of “immoral” or “scandalous” trademarks

Emulex Corp. v. Varjabedian (April 15): In a lawsuit alleging violation of the Securities Exchange Act of 1934, whether a private plaintiff has to show that a person who made a false statement intended to do so, or whether it is enough that the false statement was made negligently

Parker Drilling Management Services v. Newton (April 16): Whether California’s overtime and wage laws apply to drilling rigs on the outer continental shelf under the Outer Continental Shelf Lands Act

North Carolina Department of Revenue v. Kaestner Family Trust (April 16): Whether the Constitution’s due process clause bars a state from taxing a trust when beneficiaries of the trust are in-state residents

United States v. Davis (April 17): Whether a federal criminal law that bars the use or carrying of a gun during a “crime of violence,” which is defined as any crime that involves “a substantial risk that physical force” may be used against someone or something, is so vague that it is unconstitutional

McDonough v. Smith (April 17): When the statute of limitations begins to run for a federal civil rights claim alleging that prosecutors fabricated evidence in a criminal proceeding

Food Marketing Institute v. Argus Leader Media (April 22): The meaning of the term “confidential” in the Freedom of Information Act

Fort Bend County v. Davis (April 22): Whether federal courts have the power to review federal employment discrimination claims if the employee did not first file a charge with the Equal Employment Opportunity Commission

Mitchell v. Wisconsin (April 23): A challenge to the constitutionality of a state law that allows law-enforcement officials to draw blood from unconscious drivers without a warrant

Rehaif v. United States (April 23): Whether, when the government prosecutes a noncitizen who is in the United States illegally for violating a federal law prohibiting him from having guns or ammunition, the government must show that the defendant knew he was in the country illegally

Quarles v. United States (April 24): Timing of the intent required to commit burglary for purposes of a “violent felony” under the Armed Career Criminal Act

Taggart v. Lorenzen (April 24): Whether a creditor can be held in contempt if he believes in good faith that a bankruptcy discharge does not apply

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Justices grant stay, block Louisiana abortion law from going into effect

Justices grant stay, block Louisiana abortion law from going into effectIn June 2016, an eight-member Supreme Court struck down a Texas law that required doctors who perform abortions to have the authority to admit patients at a local hospital. The makeup of the court has changed significantly since then: In 2017, Justice Neil Gorsuch was confirmed to replace the late Justice Antonin Scalia, who died […]

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Justices grant stay, block Louisiana abortion law from going into effect

In June 2016, an eight-member Supreme Court struck down a Texas law that required doctors who perform abortions to have the authority to admit patients at a local hospital. The makeup of the court has changed significantly since then: In 2017, Justice Neil Gorsuch was confirmed to replace the late Justice Antonin Scalia, who died a few weeks before the Texas case was argued, and Justice Anthony Kennedy retired in 2018 and was replaced by Justice Brett Kavanaugh. But although the court by most measures has become more conservative, the justices today granted a request from abortion providers to block a similar Louisiana law from going into effect while the providers appeal a ruling from the U.S. Court of Appeals for the 5th Circuit, in a dispute that some court-watchers regarded as a bellwether for the court’s possible direction in future abortion cases.

The Louisiana law at the center of the dispute was enacted in 2014 but has never gone into effect. It requires doctors who perform abortions in the state to have “active admitting privileges” – the authority to admit patients and to provide diagnostic and surgical services – at a hospital within 30 miles of the clinic where they provide abortion care.

In 2016, after the death of Justice Antonin Scalia, the Supreme Court struck down a similar law from Texas. Defending the law, the state argued that the admitting-privileges requirement was intended to protect the health of pregnant women, but Kennedy joined the court’s four more liberal justices in holding that there was no evidence that the requirement actually promoted that interest, while at the same time the law made it significantly harder for women to obtain an abortion.

A federal trial court agreed with the abortion providers that Louisiana’s law is unconstitutional because it does “little or nothing for women’s health” but would “cripple women’s ability to have an abortion.” But last fall the U.S. Court of Appeals for the 5th Circuit reversed that ruling, setting the stage for the law to go into effect for the first time.

Last week the abortion providers went to the Supreme Court, asking the justices to bar Louisiana from enforcing the admitting-privileges requirement until the providers can file – and the justices can rule on – a petition for review. Emphasizing that the Louisiana law is virtually indistinguishable from the Texas law that the Supreme Court deemed unconstitutional, the providers warned of serious consequences if the law is allowed to go into effect: There will not be any doctors in the state to perform abortions after 17 weeks of pregnancy, and there will be only one doctor available to provide abortions in the earlier stages of pregnancy. As a result, they argued, “some women could be completely denied the choice to terminate a pregnancy and forced to carry the pregnancy to term.” What’s more, they added, any clinics that are forced to close if the law goes into effect are “unlikely to ever reopen,” even if the law is later declared unconstitutional.

In a brief filed a few days later, the state urged the justices to stay out of the dispute and allow the law to go into effect. The state asserted that the law would have a very different impact than the Texas law that the justices had struck down, and a far less severe effect than the providers had prophesied. Because only one of the unnamed abortion providers challenging the law had actually experienced real problems getting admitting privileges, the state explained, “only one of Louisiana’s six abortion providers would cease practice as a result of” the law, and “none of Louisiana’s three abortion clinics would have to close.”

And in any event, the state assured the court, it did not plan to shut down abortion clinics overnight, as the providers had suggested. Instead, the state clarified, it “envisions a regulatory process that begins, logically, with collecting information from Louisiana’s abortion clinics and their doctors.”

Louisiana’s law was scheduled to go into effect on Monday, February 4. On February 1, Justice Samuel Alito gave the providers a short-term reprieve, barring the state from enforcing the law for a few more days to give the Supreme Court more time to review the briefs that had been filed. Alito stressed that his order did not “reflect any view regarding the merits of the petition” for review that the providers have said they intend to file.

In a brief order issued late tonight, the Supreme Court put the law on hold indefinitely – at least until the justices can rule on a petition for review, but, in all likelihood, until they can hear oral argument and rule on the law’s constitutionality. Chief Justice John Roberts joined the court’s four more liberal justices in voting to grant the stay, while four conservative justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – all indicated that they would have denied the providers’ request and allowed the state to enforce the law.

Kavanaugh also wrote a separate dissent from the order granting the providers’ request to block the law. The central question in the case, he reasoned, is whether the admitting-privileges requirement imposes an “undue burden” on a woman’s right to obtain an abortion, which in turn hinges largely on whether three doctors who perform abortions at the state’s clinics can obtain admitting privileges – a question on which the lower courts reached different conclusions. Therefore, Kavanaugh explained, he would deny the providers’ request to bar the state from enforcing the law so that the three doctors and local hospitals could resolve the admitting-privileges question once and for all.

If the doctors cannot obtain admitting privileges, Kavanaugh stressed, they can return to court. But if they can, and they can continue to perform abortions, he suggested, the law would not impose an undue burden. By contrast, Kavanaugh emphasized, the Supreme Court’s approach – blocking the law and presumably reviewing the case next term — “will take far longer and be no more beneficial than the approach suggested here.”

With the law now on hold, nothing is expected to happen in the case until the providers file their petition for review, which is due in mid-April. If the justices decide to take up the case, which seems likely because the prospect that the Supreme Court will grant review is one of the criteria that the justices considered before granting the stay, oral argument would likely be held in the fall of 2019 or winter of 2020, with a decision by the end of June 2020.

This post was first published at Howe on the Court.

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Divided court allows Alabama execution to go forward

Divided court allows Alabama execution to go forwardA divided Supreme Court cleared the way for Alabama to execute a Muslim inmate after denying his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber. By a vote of 5-4, the justices lifted a stay of […]

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Divided court allows Alabama execution to go forward

A divided Supreme Court cleared the way for Alabama to execute a Muslim inmate after denying his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber.

By a vote of 5-4, the justices lifted a stay of execution imposed yesterday by the U.S. Court of Appeals for the 11th Circuit. The Atlanta-based court had put the execution of Domineque Ray, who was convicted of raping and murdering 15-year-old Tiffany Harville in 1995, on hold, reasoning that the prison’s policy of excluding the imam from the execution chamber while allowing a Christian chaplain likely violates the Constitution’s establishment clause, which bars the government from favoring one religion over another. But the justices reversed that ruling today, explaining that Ray had waited too long to challenge the policy: Although today’s execution date had been set back in early November, Ray didn’t go to court until January 28, 2019.

Justice Elena Kagan – joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – dissented from the Supreme Court’s decision to lift the stay, calling it “profoundly wrong.” Allowing an inmate to have a Christian minister but not a Muslim imam by his side at his execution, Kagan wrote, “goes against the Establishment Clause’s core principle of denominational neutrality.”

Kagan pushed back against the majority’s suggestion that Ray’s execution could go forward because he had sought relief too late. Ray couldn’t have brought this challenge earlier, she explained, because he would not have known that his imam would not be allowed in the execution chamber until January 23, when the warden denied Ray’s request to have the imam in the chamber as his spiritual adviser.

Kagan stressed that the Supreme Court is “ordinarily reluctant to interfere with the substantial discretion” that federal courts have to issue stays. And in this case, she observed, “Ray has put forward a powerful claim that his religious rights will be violated at the moment the state puts him to death.” Although the 11th Circuit would have reviewed that claim, Kagan concluded, the Supreme Court instead “short-circuits that ordinary process” “just so the State can meet its preferred execution date.”

This post was first published at Howe on the Court.

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SCOTUS Map: January 2019

SCOTUS Map: January 2019In January, Justices Stephen Breyer and Samuel Alito participated in the Shakespeare Theatre Company’s Winter Mock Trial, adjudicating a dispute based on “Richard III.” Despite the seriousness of the source material, Jacob Roberts, covering the trial for this blog, reported that both the advocates arguing the case and the judges on the panel turned the […]

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SCOTUS Map: January 2019

Click to enlarge.

In January, Justices Stephen Breyer and Samuel Alito participated in the Shakespeare Theatre Company’s Winter Mock Trial, adjudicating a dispute based on “Richard III.” Despite the seriousness of the source material, Jacob Roberts, covering the trial for this blog, reported that both the advocates arguing the case and the judges on the panel turned the January 14 proceedings into a comedic affair, replete with thinly veiled references to President Donald Trump, “Individual Number One,” government shutdowns and incriminating dossiers.

Justice Sonia Sotomayor also displayed her love of the arts recently, taking part in a discussion about “West Side Story,” music and cultural identity at The Kennedy Center on January 18.

Sotomayor then traveled from Washington to Puerto Rico, promoting her latest children’s books at the Plaza Las Américas on January 19 and at the General Archives and National Library of Puerto Rico on January 22. Reports of her book tour stops come from El Nuevo Día and Telemundo. The justice followed up with an appearance at a January 23 forum entitled “Three Women in the Judiciary: Against Wind and Tide,” where she lamented the trend toward the appointment of ever-younger judges. In Sotomayor’s opinion, society is making a “mistake” by overlooking candidates with more life experience, which can help judges better understand the issues before them. NoticEl covered the event, and video is available on YouTube.

Returning stateside, Sotomayor headlined the Bronx Children’s Museum’s 10th Annual Dream Big Day with actress (and fellow Bronx native) Kerry Washington. The Associated Press and WABC-TV covered the January 25 festivities, which were held at Hostos Community College. A video clip of Sotomayor sharing a story about her mother’s dream of attending college and becoming a nurse is available online.

Sotomayor next appeared at the Brooklyn Bar Association on January 31, an event that was postponed last April after the justice injured her shoulder.

Speaking of recuperating justices, a January 29 conversation with Justice Ruth Bader Ginsburg at the Skirball Cultural Center in Los Angeles was canceled in light of Ginsburg’s recovery from recent lung surgery.

Finally, to round out January, Justice Clarence Thomas co-taught a seminar on the Supreme Court at Creighton University School of Law. According to the Omaha World-Herald, the exact dates were not made public at the justice’s request.

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Justices asked to enter abortion fray

Justices asked to enter abortion frayThe hot-button issue of abortion returned to the Supreme Court today. Two doctors who perform abortions and an abortion clinic asked the justices to block a lower-court ruling that upheld a Louisiana law that, according to a federal trial court, would leave “only one physician providing abortion in the entire state.” The challengers want the […]

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Justices asked to enter abortion fray

The hot-button issue of abortion returned to the Supreme Court today. Two doctors who perform abortions and an abortion clinic asked the justices to block a lower-court ruling that upheld a Louisiana law that, according to a federal trial court, would leave “only one physician providing abortion in the entire state.” The challengers want the Supreme Court to put the lower court’s decision on hold – which would mean that the state could not enforce the law – to give them time to file a petition for review; the justices’ ruling on today’s request could tell us a lot more about how the Roberts Court, more conservative since the retirement of Justice Anthony Kennedy last year, might approach abortion cases going forward.

The case is a challenge to a Louisiana law that requires physicians who perform abortions in the state to have “active admitting privileges” – the ability not only to admit patients, but also to provide diagnostic and surgical services – at a hospital within 30 miles of the facility where the doctor provides abortions. In 2016, a divided eight-member Supreme Court struck down a similar law from Texas, which that state had argued was intended to protect the health of pregnant women. Justice Anthony Kennedy, who retired last year, joined the court’s four more liberal justices in concluding that, although the state has a legitimate interest in protecting women’s health, there was no evidence that the admitting-privileges requirement promoted that interest. On the other hand, the majority stressed, the admitting-privileges requirement made it much harder for women to obtain abortions.

Louisiana itself had described the admitting-privileges requirement as identical to the one struck down, and a federal district court declared the law unconstitutional, reasoning that the requirement does “little or nothing for women’s health” but would “cripple women’s ability to have an abortion.” In September 2018 the U.S. Court of Appeals for the 5th Circuit reversed, and 10 days ago the full 5th Circuit rejected the challengers’ request to rehear the case.

Today the challengers urged the justices to intervene and bar the state from enforcing the admitting-privileges requirement until the challengers can file (and the Supreme Court can rule on) a petition for review. They argue that the Supreme Court is likely to take up the case and reverse the 5th Circuit’s decision – an important criterion for emergency relief – because the law is virtually indistinguishable from the Texas one that the Supreme Court has already deemed unconstitutional.

And if the law is allowed to go into effect, the challengers say, the consequences will be serious: There will not be a doctor in Louisiana to perform abortions for women after 17 weeks of pregnancy, and only one doctor for the earlier stages of pregnancy. Because “one doctor cannot possibly meet the demands of all women who seek abortions in Louisiana,” they emphasize, “some women could be completely denied the choice to terminate a pregnancy and forced to carry the pregnancy to term.” Moreover, they add, if clinics are forced to close temporarily while the law is being enforced, they are “unlikely to ever reopen.”

The challengers’ request will go first to Justice Samuel Alito, who now handles emergency appeals from the geographic area that includes Louisiana. Alito can act on the request himself, although he is more likely to refer it to the full court. The first step, however, will probably be to call for a response to the challengers’ request from Louisiana.

This post was originally published at Howe on the Court.

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Court releases March calendar

Court releases March calendarThe Supreme Court issued the argument calendar for its March sitting today. Over a six-day period from March 18 through March 27, the justices will hear oral argument in nine cases. Three of those cases are likely to be among the biggest cases of the term. On March 26, in Rucho v. Common Cause and […]

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Court releases March calendar

The Supreme Court issued the argument calendar for its March sitting today. Over a six-day period from March 18 through March 27, the justices will hear oral argument in nine cases. Three of those cases are likely to be among the biggest cases of the term. On March 26, in Rucho v. Common Cause and Lamone v. Benisek, the justices will return to the topic of partisan gerrymandering – that is, the idea that state officials violate the Constitution when they draw district lines to favor one political party at another’s expense. The justices will hear challenges to federal congressional districts in North Carolina and Maryland, but they will also be considering whether courts should have a role in reviewing partisan gerrymandering claims at all. And on March 27, the justices will hear oral argument in Kisor v. Wilkie, a case in which they have been asked to overrule a legal doctrine known as Auer deference, which instructs courts to defer to an agency’s interpretation of its own regulation when the regulation is ambiguous. Although the issue may sound somewhat dry, the justices’ ruling could have enormous implications for the operations of federal agencies.

A full list of the cases scheduled for oral argument in March, along with a brief summary of the issues presented in each case, follows below the jump.

Virginia House of Delegates v. Bethune-Hill (March 18): Racial gerrymandering challenge to Virginia state legislative districts

Smith v. Berryhill (March 18): Whether, if the Social Security Administration’s Appeals Council determines that an appeal from an administrative decision by an individual seeking disability benefits is filed too late, that ruling is a “final decision” that courts can review

Cochise Consultancy v. United States ex rel. Hunt (March 19): Whether a private party who acts on behalf of the government can rely on an exception to the False Claims Act, for cases in which the fraud is not filed right away, to file a lawsuit after the six-year statute of limitations has run in cases in which the government is not involved

Flowers v. Mississippi (March 20): Whether the Mississippi Supreme Court properly applied the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, holding that it is unconstitutional to strike potential jurors based on their race, to the case of a death-row inmate when the prosecutor was found to have violated Batson during the inmate’s first four trials; at his sixth trial, the prosecutor allowed the first African-American juror to be seated but then struck the remaining five African-American jurors

PDR Network v. Carlton & Harris Chiropractic (March 25): Whether the Hobbs Act, a federal law that provides a mechanism for courts to review some agency orders, requires a federal district court to accept the Federal Communications Commission’s legal interpretation of the Telephone Consumer Protection Act

Dutra Group v. Batterton (March 25): Whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel

Rucho v. Common Cause (March 26)

Lamone v. Benisek (March 26)

Kisor v. Wilkie (March 27)

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Redacted petition made public in grand jury dispute

Redacted petition made public in grand jury disputeLast month the unnamed corporation at the center of a dispute over a grand jury subpoena that is widely believed to be connected to the investigation of Special Counsel Robert Mueller asked the Supreme Court for permission to file a petition for review under seal. Today the Supreme Court granted that permission and made a […]

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Redacted petition made public in grand jury dispute

Last month the unnamed corporation at the center of a dispute over a grand jury subpoena that is widely believed to be connected to the investigation of Special Counsel Robert Mueller asked the Supreme Court for permission to file a petition for review under seal. Today the Supreme Court granted that permission and made a redacted version of the petition available to the public. However, the redacted version sheds little – if any – new light on the nature of the dispute or any possible links to the special counsel’s investigation.

The petition makes clear that the unnamed corporation is a “wholly owned agency or instrumentality” of an unnamed country, identified only as “Country A” (a term used interchangeably in the petition to refer to the country and the corporation) and it provides a slightly more detailed description of the events that resulted in the dispute’s reaching the Supreme Court. “Earlier this year,” the petition recounts, “the U.S. government served a grand jury subpoena on Country A,” which “understands that it is a witness in the investigation.” Country A tried to block the subpoena, arguing both that it was immune from having to comply with the subpoena and that, in any event, complying with the subpoena would require it to violate its own laws.

A federal district court in Washington, D.C., rejected that argument and ordered Country A to produce the information requested by the subpoena. When Country A refused, the district court held it in contempt and ordered it to pay $50,000 per day.

Country A appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which upheld the district court’s order. Country A then went to the Supreme Court, asking the justices to put the lower court’s order requiring it to provide the information or pay the penalties on hold while it appealed; Chief Justice John Roberts granted the request temporarily, but on January 8 the Supreme Court declined to block the order any longer – allowing the penalties to mount while the corporation appeals.

On the same day, the company filed a motion seeking permission to file a petition for review of the D.C. Circuit’s decision under seal. Today the justices granted that motion, making the redacted petition for review available to the public.

Even the petition’s signature block is redacted, giving no hint as to who the attorneys representing the company and Country A are. The petition also does not provide any real insight into how the information that the government is seeking might fit into the Mueller investigation. Instead, the petition urges the justices to take up the case and review two main legal issues: whether U.S. courts have criminal jurisdiction over foreign countries, and whether foreign countries are immune from contempt sanctions. The petition warns that if the D.C. Circuit’s ruling is allowed to stand, it would “wreak havoc on American foreign policy—possibly alienating U.S. allies, undermining diplomatic efforts, and inviting reciprocal treatment abroad for American agencies and instrumentalities.”

The government’s response to the petition is currently due on February 21, 2019.

This post was originally published at Howe on the Court.

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Justices to review New York gun rights case

Justices to review New York gun rights caseIn 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to have a handgun at home for self-defense. Two years later, the justices made clear that this right also applies against state and local governments. Since then the Supreme Court has repeatedly declined to say anything more about how far states […]

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Justices to review New York gun rights case

In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to have a handgun at home for self-defense. Two years later, the justices made clear that this right also applies against state and local governments. Since then the Supreme Court has repeatedly declined to say anything more about how far states and cities can go in restricting gun rights, but today it granted a plea to weigh in, this time in a case from New York City.

The request for review came from the New York State Pistol and Rifle Association and a group of gun owners who live in the city. They were challenging the city’s ban on transferring even licensed, unloaded guns anywhere outside the city limits – including to a weekend home or shooting range for target practice – restrictions they describe as “draconian.” After the lower courts rejected their challenge and upheld the restrictions, the NYSPRA and gun owners went to the Supreme Court.

Today the justices granted review in the case, New York State Rifle & Pistol Association v. New York. The Supreme Court’s calendar for April was already full before last week’s conference, so the new grant likely won’t be argued until the fall. The justices’ eventual ruling in the case could stick to the relatively narrow question of whether the city’s law is constitutional, or it might shed light on a broader and more consequential question: whether the right to have a gun extends outside the home. Either way, the court’s opinion in the case probably won’t come until the spring of 2020.

The justices declined to tackle another hot-button issue this term: a challenge to the Trump administration’s ban on service in the military by most transgender individuals. Federal trial courts in California and Washington state have ruled that the government cannot enforce the ban and must allow transgender servicemembers to serve openly. Although the Supreme Court did not agree to review those rulings now, it did grant the government’s request to put the rulings on hold – and to allow the government to enforce the ban – while the government litigates in the federal appeals courts.

For decades, transgender individuals were barred from serving openly in the military. But in June 2016, then-Secretary of Defense Ash Carter announced that transgender Americans could serve openly in the military, and he directed the military to adopt new standards for transgender servicemembers by July 2017.

In July 2017, President Donald Trump tweeted that the military would not allow transgender servicemembers “in any capacity.” His tweet followed an announcement by then-Secretary of Defense James Mattis that the military would not implement the new standards that Carter had ordered.

Lawsuits challenging the constitutionality of the ban followed, in federal courts in Washington state and California. Those courts barred the government from enforcing the policy, as well as a 2018 policy – outlined in a memo that included recommendations from senior military officials – that would effectively ban transgender individuals from serving openly in the military.

The Trump administration went to the Supreme Court in late November, asking the justices to rule on the transgender ban before the courts of appeals had issued their decisions. Telling the justices that the lower courts’ orders require the government to continue the Obama-era policy of allowing transgender individuals to serve openly, despite the conclusion by Mattis and other senior military experts and leaders that allowing transgender service members “posed too great a risk to military effectiveness and lethality,” the government urged the justices to grant review immediately, without waiting for the courts of appeals to rule.

The government went back to the Supreme Court in December with a backup plan. If the justices did not step in immediately, the government pleaded, the court should at the very least allow the Trump administration to enforce the ban while the government’s appeals play out. Otherwise, the government argued, the old policy allowing transgender servicemembers would likely remain in place until the spring of 2020, even though the government had concluded that retaining the policy would be “contrary to the national interest.”

Today the Supreme Court denied review of the Trump administration’s petitions for review. However, the justices did grant the government’s request to stay the lower courts’ rulings, and to allow the government to enforce the ban while the appeals are being litigated, which suggests that at least five justices see some merit in the government’s arguments. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan all indicated that they would have denied the government’s request.

The justices did not act on a challenge to the Trump administration’s decision to terminate the program known as “Deferred Action for Childhood Arrivals,” or “DACA.” The Obama administration established the program, which allows the young adults often known as “Dreamers” – undocumented immigrants who were brought to the United States as children – to apply for protection from deportation, in 2012. The Trump administration announced its intention to terminate the program in 2017, once again making some of the Dreamers eligible to be sent back to the countries where they were born. The failure to act on the case by now means that even if the justices eventually announce that they will review the case, they are not likely to do so until next fall, almost certainly keeping the program in place at least until 2020.

The justices turned down a request by Joseph Kennedy, a football coach at a public high school who lost his job after he kneeled and prayed on the field following several football games, to weigh in on his case, Kennedy v. Bremerton School District. Kennedy claimed that his termination violated his First Amendment rights, but both a federal district court and the U.S. Court of Appeals for the 9th Circuit rejected that argument. The court of appeals agreed with the school district that Kennedy’s prayers were not protected by the First Amendment because he was speaking as a public employee rather than as a private citizen.

Justice Samuel Alito wrote a statement regarding the denial of review in Kennedy’s case that was joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. Alito complained that the 9th Circuit’s “understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” In particular, he observed, under the 9th Circuit’s interpretation of the Supreme Court’s cases, “public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty,” including “folding their hands or bowing their heads in prayer” “while eating lunch.” But the Supreme Court was right to stay out of Kennedy’s case, Alito continued, because there are “important unresolved factual questions” that “would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”

This post was originally published at Howe on the Court.

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Challengers urge justices to dismiss census case after district court ruling (Updated)

Challengers urge justices to dismiss census case after district court ruling (Updated)UPDATE: On Friday, January 18, the Supreme Court announced that it had removed the case from the February argument calendar and suspended the briefing schedule “pending further order of this Court.” Although the justices will not hear oral argument in the case in February, today’s order does not foreclose the possibility that the case could […]

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Challengers urge justices to dismiss census case after district court ruling (Updated)

UPDATE: On Friday, January 18, the Supreme Court announced that it had removed the case from the February argument calendar and suspended the briefing schedule “pending further order of this Court.” Although the justices will not hear oral argument in the case in February, today’s order does not foreclose the possibility that the case could be argued later in the term, at which point the justices could also potentially review the district court’s decision blocking the government from including the citizenship question on the 2020 census.

On February 19, the Supreme Court is scheduled to hear oral argument in U.S. Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over evidence in a challenge to the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The justices agreed in November to review the case, but they also rejected the government’s request to put the trial in the case on hold. The district court went ahead with the trial, and on Tuesday it issued its decision, blocking the government from using the citizenship question on the census. On January 17, the challengers asked the justices to dismiss the case, telling them that the district court’s ruling “has fundamentally altered the circumstances that were present” when the Supreme Court granted review.

The dispute arose in March 2018, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship. The government explained that including a citizenship question would help the Department of Justice better enforce federal voting-rights laws, but the decision drew a court challenge from a group of states, cities and counties, who argue that the question will discourage undocumented immigrants from responding to the census, skewing the results.

The challengers sought to question Ross and John Gore, the acting head of DOJ’s civil rights division. The Supreme Court blocked the challengers from questioning Ross but allowed them to depose Gore and to seek facts outside the official administrative record.

On Tuesday, the district court issued its ruling, barring the government from including the citizenship question on the 2020 census. Relying only on the official record, the district court concluded that the government’s conduct involved a “smorgasbord of classic, clear-cut” violations of the federal law governing administrative agencies.

In a statement issued later that day, a spokeswoman for DOJ described the government as “disappointed” and “still reviewing the ruling,” but she also argued that the government was “legally entitled to include” the question – suggesting that the government planned to appeal. But as of this afternoon, the government had not yet acted. Instead, the challengers seized the initiative, filing a motion to dismiss the Supreme Court case.

The challengers told the justices that the question in the Supreme Court case centers on whether the district court was “correct to order” the Ross deposition. But, the challengers said, that issue is now moot – that is, no longer a “live” controversy – because the district court made its decision without questioning Ross and vacated the order requiring Ross’ deposition. Any remaining questions about whether the district court should have allowed fact-finding outside the official record can be addressed if the government appeals, the challengers argued.

With a deadline of June 2019 to finalize the census questionnaire looming, the challengers contended that it would be more efficient for all of the issues in the dispute to be considered together, rather than first litigating the dispute over the evidence in the Supreme Court. If the government wants relief from the district court’s ruling barring it from using the citizenship question on the 2020 census, the challengers concluded, it can seek an expedited appeal.

This post was first published at Howe on the Court.

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