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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. Today 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.

The post Challengers urge justices to dismiss census case after district court ruling appeared first on SCOTUSblog.

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The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the court’s business through reading briefs and written transcripts of oral arguments.

Any major health scare for Ginsburg at 85 is a concern, and she is not out of the woods yet. Meanwhile news outlets such as Politico have reported that the White House is looking for potential replacements if the justice cannot continue on the court. Much of the future direction of the court rests on Ginsburg’s health, as a Trump appointment to her seat would almost certainly lead to the most conservative Supreme Court in recent memory.

Members of the public appear aware of the uncertainty surrounding Ginsburg’s health, even with the reassurances that she is cancer-free. I recently posted on Twitter a poll that asked what will happen to Ginsburg’s seat on the court depending on President Donald Trump’s length of time in office. The poll asked if respondents thought Trump would remain in office for one or two terms and whether Ginsburg would remain in her seat for the length of Trump’s term(s) of office. Although the majority of respondents, 55 percent, think Trump will last one term and Ginsburg will remain in her seat throughout the term, a not insignificant minority, 22 percent, feel Ginsburg will not remain in her seat even if Trump is only a single-term president. The other 22 percent of respondents think Trump will be re-elected to a second term, with 86 percent of this group thinking that Ginsburg would not last through a second Trump term. Only three percent of total voters think Ginsburg would retain her seat through a second Trump term.

The results of this poll express a mix of expectations that chiefly appear to depend on whether Trump is re-elected. Many political commentators including those on the left were aware of Ginsburg’s potential frailty leading up to the last presidential election and pressed her to retire in time for President Barack Obama to fill her seat with a younger justice. Commentators have followed up on these observations following Ginsburg’s most recent health concerns. However, given Chief Judge Merrick Garland’s unsuccessful nomination, Ginsburg’s decision seems more justifiable because the confirmation of a successor appointed by Obama might not have been guaranteed.

Why is this seat more important than Scalia’s or Kennedy’s?

If Trump fills Ginsburg’s seat, it will be the first time this president has the opportunity to shift a seat on the court from a strong liberal to a staunch conservative. Although such a shift has happened before, it is at best debatable whether it has happened on such an already conservative court. Let’s take a look.

Marshall to Thomas

The only comparable ideological shift occurred when Justice Thurgood Marshall stepped down from the court and Justice Clarence Thomas replaced him. The polarity of difference in these justices’ views cannot be overstated. Marshall was a pillar of liberalism in the Warren and Burger Court years, while Thomas has been arguably the most conservative justice of this generation. This difference is measurable as well. A justice’s vote can be viewed as most consequential when it shifts the outcome of a decision. We see this in cases decided by one vote, in which a shifted vote would switch the outcome from one side to the other.

First a look at these closely decided cases from Marshall’s last years on the court:

Click to enlarge.

The figure only looks at 5-4 decisions in these three terms. The first column shows the number of 5-4 decisions in which the court’s liberal minority, at that time Marshall and Justices William Brennan, Harry Blackmun and John Paul Stevens, formed a bloc in dissent. (When Brennan retired in 1990, the fourth most liberal justice on the court was likely Justice Byron White, who was a swing vote for liberals in prior terms.) The next column shows the number of times the liberal bloc was in the majority with the aid of the most common swing vote (The one observation in 1990 involved both White and Justice Sandra Day O’Connor siding with the liberals.). The third column shows the number of times Marshall was in dissent in 5-4 decisions in each of these terms and the fourth column shows the number of times Marshall was in the majority in 5-4 decisions in these terms.

Marshall’s votes had more than a theoretical impact on the course of the Supreme Court’s jurisprudence late in his career. In 1989, Marshall had a key vote in the County of Allegheny v. American Civil Liberties Union decision. Marshall voted alongside Blackmun, Brennan, Stevens and O’Connor to hold that a creche inside a courthouse was an endorsement of Christianity in violation of the establishment clause. In 1987, Marshall was the deciding vote for the 5-4 majority in United States v. Paradise, which upheld against an equal protection clause challenge a state scheme that required the promotion of one black employee for every white employee. Such decisions would most likely have gone in the other direction without Marshall’s vote.

The liberal end of the court was clearly weaker after Brennan’s departure, although Justice David Souter, who joined in 1990 to fill Brennan’s seat, later turned out to be a consistent liberal vote. Still, overall Marshall was clearly in the minority in most of these close decisions toward the end of his tenure on the court. The important counterpoint is that if Thomas had sat in Marshall’s seat in these three terms, many if not most of the 5-4 decisions in which Marshall was in the majority would have shifted in the opposite direction.

Some of this becomes evident when we look at comparative statistics for Thomas in 5-4 decisions.

Click to enlarge.

Thomas didn’t come out of the gate with as clear of a conservative predilection as would become evident later in his tenure. In his first term he didn’t join the more conservative justices in any 5-4 decisions, while he sided twice with the four most liberal justices to shift the outcome in their favor in both cases. In his first term Thomas was also in dissent 10 times in 5-4 decisions while only in the majority in four such decisions.

This term marked the last time that Thomas was a swing vote for the court’s liberals, however. In the coming years Thomas would join with Chief Justice William Rehnquist, Justices Antonin Scalia and Anthony Kennedy, and O’Connor to form a strong, although not impenetrable, conservative majority. Thomas was in this ideological majority in 5-4 decisions four times in his second term, five times in his third, and 13 times in the 2000 term. Thomas tended to be in the majority of all 5-4 decisions more times after his first term and was in dissent less frequently.

Thomas’ votes had a substantial impact in close decisions in his first few years on the court. The court’s conservative majority (Thomas, Rehnquist, Scalia, White and Kennedy) in 1993’s Heller v. Doe held that under rational basis scrutiny, Kentucky’s procedures for involuntarily committing mentally retarded persons did not violate the equal protection clause. That outcome would have likely gone in the opposite direction with Marshall on the court instead of Thomas.

In another 1993 decision, Zobrest v. Catalina Foothills School District, a 5-4 conservative majority composed of the same justices held that a school could not deny an interpreter to a deaf child based on the establishment clause. Under that ruling the state’s responsibility to provide an interpreter should not hinge on whether a school is religious or secular. The decisions described above only provide some context from Thomas’ first years on the court. Thomas would prove time and again to be an essential conservative component in closely decided cases.

O’Connor to Alito

O’Connor was nowhere near as predictable a liberal vote as was Marshall. To the contrary, O’Connor predominantly aligned herself with the court’s conservatives, but was more moderate than some of her conservative counterparts. Still, the shift from O’Connor to Justice Samuel Alito marked another significant move rightward for the court.

O’Connor’s importance to both ends of the ideological spectrum is evident from her last two terms on the court:

Click to enlarge.

During these two terms O’Connor was much more often in the majority than in the minority in 5-4 decisions. Although she acted as the swing vote more often for the conservatives (Scalia, Rehnquist, Thomas and Kennedy), she was also the swing vote for the liberals — Stevens, Souter and Justices Ruth Bader Ginsburg and Stephen Breyer — not an insubstantial number of times.

Without O’Connor’s vote in support of abortion’s legality, for instance, the court very well might have overturned Roe v. Wade with its decision in Planned Parenthood v. Casey. This was not the only landmark case that O’Connor helped decide with the liberals. In Grutter v. Bollinger, O’Connor wrote the majority opinion that was joined in full by Stevens, Souter, Ginsburg and Breyer, which upheld the University of Michigan Law School’s use of racial preferences in admissions decisions. O’Connor was also a swing vote for the liberals in McCreary County v. American Civil Liberties Union, in which the court held that displays of the Ten Commandments in public schools and courthouses violate the establishment clause.

In contrast to O’Connor’s votes joining the court’s liberals, Alito has never waffled between ideological poles in close cases.

Click to enlarge.

Alito has still yet to side with the four more liberal justices on the court in a 5-4 decision. Half or more of his decisions in the 5-4 cases depicted above supported an ideologically conservative majority consisting also of Chief Justice John Roberts, Thomas, Kennedy, and either Scalia or Justice Neil Gorsuch. The vast majority of his dissents in 5-4 decisions were with the same grouping aside from Kennedy.

The impact of Alito’s coalitions is substantial as well. Early in his tenure on the court, Alito sided with the other conservative justices in Kansas v. Marsh upholding Kansas’ death penalty statute that would allow capital punishment in instances with equal mitigating and aggravating factors. Soon thereafter Alito also sided with the conservative majority in Gonzales v. Carhart, in which the 5-4 majority upheld the constitutionality of the partial-birth abortion ban. Although only applicable in limited instances, this ruling was seen as a significant step backward for pro-abortion-rights advocates.

Ginsburg

Similar to Marshall, Ginsburg has been one of the most consistent liberal votes on the court for many years. This is apparent in Ginsburg’s votes over the last several terms with a full nine-member court.

Click to enlarge.

In these three terms there were no instances in which Ginsburg sided with the more conservative justices — Scalia/Gorsuch, Thomas, Alito and Roberts — in a 5-4 majority. Ginsburg was, however, in ideologically liberal majorities in many of her 5-4 decisions. The 2017 term was an anomaly for this, because Kennedy did not side with the court’s liberals in a single 5-4 decision. Consequently, every 5-4 decision in 2017 in which Ginsburg was in the minority (13 in total) involved a dissenting coalition with Breyer and Justices Sonia Sotomayor and Elena Kagan.

Had a conservative justice filled Ginsburg’s seat over the past decade, the court might have gone in an entirely different direction. Some of the biggest liberal victories in cases such as Fisher II (affirmative action), Obergefell v. Hodges (same-sex marriage), Whole Woman’s Health v. Hellerstedt (striking down a restrictive abortion law), and National Federation of Independent Business v. Sebelius (health care) would have presumably gone in the other direction without Ginsburg’s vote. Based on this supposition, one can imagine the direction the court would move if a much more conservative justice filled Ginsburg’s seat.

How Trump might fill the seat

The most talked about candidate who was not nominated to fill Kennedy’s seat was most likely Judge Amy Coney Barrett. Even after Justice Brett Kavanaugh was nominated to the seat, news outlets (e.g., The Daily Beast and Washington Post) pointed out how Trump might have missed the mark with his pick. The time might be right for Trump to look to Barrett to fill Ginsburg’s seat if given the opportunity to do so. In this scenario Trump would have the opportunity to nominate a vocal Christian (Catholic) conservative who has under two years of experience as a federal court judge (on the U.S. Court of Appeals for the 7th Circuit). With Barrett, Trump would not reduce the number of women on the court and would have a judge less exposed to many issues (and thus having a less clearly defined stake in them) than recent nominees Gorsuch and Kavanaugh.

This limited judicial record could well work in her favor. She hasn’t sat on many high-visibility cases and so it is difficult to jurisprudentially connect her to certain positions on hot-button issues. Even with her somewhat limited experience, she seems to meet the model of a conservative Roberts Court judge with her votes. The figure below shows the types of parties Barrett has ruled for in decisions she has written as well as the issue areas under which these cases fall.

Click to enlarge.

Barrett’s generally favorable approach to business and to the government is in sync with much of the Roberts Court’s decision-making. Still, a pro-government stance is much more difficult to discern from appeals court decisions, because cases at this court level are often less complex than the ones Supreme Court hears, and appellate court judges are more strictly bound by precedent than the justices. Suffice it to say, though, that her track record has few to no blemishes that would alarm conservative decisionmakers.

Barrett has also sat on panels with a mix of 7th Circuit judges and has generally met with little dissent in her authored decisions. The mix of other judges on panels for which Barrett was the majority author looks like the this:

Click to enlarge.

Although Barrett’s counterparts on the court have mainly signed on to her opinions, two judges dissented in separate immigration decisions she wrote, for similar reasons. Judge Kenneth Francis Ripple dissented in the recent decision in Yafai v. Pompeo, and Judge Thomas Durkin, who was sitting on a panel by designation, dissented in last year’s Alvarenga-Flores v. Sessions. In both cases Barrett upheld immigration decisions that kept potential immigrants from the United States.

Barrett has dissented few times so far on the 7th Circuit. She has only written one dissent, in Schmidt v. Foster, a Sixth Amendment case dealing with the right to counsel.

Her viewpoint on abortion, however, has been brought into the spotlight both through a case decision and through her own writings. She is not bound to a judicial position on abortion, but she has divulged much more on this issue than most previous nominees. Barrett signed onto Judge Frank Easterbrook’s dissent from denial of rehearing en banc in Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Department of Health. The dissent examined two aspects of an abortion law, one of which would have “[made] it illegal to perform an abortion for the purpose of choosing the sex, race, or (dis)abilities of a child.” Easterbrook wrote:

Does the Constitution supply a right to evade regulation by choosing a child’s genetic makeup after conception, aborting any fetus whose genes show a likelihood that the child will be short, or nearsighted, or intellectually average, or lack perfect pitch—or be the “wrong” sex or race? [Planned Parenthood v.] Casey did not address that question.

Barrett’s pro-life position is made clearer in her own writings. In “Catholic Judges in Capital Cases,” Barrett, along with her co-author John Garvey, wrote: “In modern Catholic teaching, capital punishment is often condemned along with other practices whose point is the taking of life abortion, euthanasia, nuclear war, and murder itself.” They went on to say, “But a more precise statement of the church’s teaching requires a few qualifications. The prohibitions against abortion and euthanasia (properly defined) are absolute; those against war and capital punishment are not.”

Although Barrett’s writings do not necessitate an outcome in any particular case, they do put her prior position on this issue at odds with Ginsburg’s. If Barrett were to fill Ginsburg’s seat, we would see a very different court than we do today.

We can compare the extent of ideological shifts between Marshall and Thomas and between O’Connor and Alito to get a sense of the magnitude of a potential move from Ginsburg to Barrett. The figure below plots Martin-Quinn Ideological Scores, based the justices’ voting alignments, for the five..

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During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversial because, as I explained previously, it often prevents local takings plaintiffs from getting into federal court. The court first heard argument in October, before Justice Brett Kavanaugh joined the bench, and ordered supplemental briefing in November, asking for more information on one of the plaintiff’s alternative theories. At yesterday’s argument, the justices seemed to search for a narrow way to limit Williamson County’s effect on local takings plaintiffs without overturning the decision or revisiting the meaning of an unconstitutional taking.

The case is rooted in petitioner Rose Mary Knick’s claim that the township of Scott, Pennsylvania, effected an unconstitutional taking of her property through an ordinance allowing some public access to property containing burial grounds. Arguing on Knick’s behalf, David Breemer stressed that a taking is complete and actionable at the time the property owner suffers injury unless the government contemporaneously promises to pay compensation. Chief Justice John Roberts asked if perhaps, rather than basing the decision on “something as grand as when the constitutional violation … has come to fruition,” the court might resolve the case with “simply a rule about how those cases should be handled in state court as opposed to federal court.” But Breemer disagreed, reiterating Knick’s view that Williamson County hinges on a flawed understanding of the takings clause.

Justice Stephen Breyer asked Breemer a long series of questions attempting to show that Knick’s position is impractical. He indicated that a state must always make a determination, sometimes a complicated one, about whether it will pay compensation for an alleged taking. Deeming a taking complete and litigable in federal court before a state has completed that determination, he suggested, would not make the plaintiff better off. Justice Elena Kagan echoed this practicality question. She also noted the conceptual case against Knick’s position: One cannot say there has been a denial of “just compensation” until the government has in fact denied a request to pay. Justice Sonia Sotomayor drew an analogy to the federal Tucker Act, which provides a judicial compensation mechanism for takings by the federal government, and asked why states, too, can’t choose a judicial compensation mechanism. Breemer answered that under the Tucker Act, the federal court adjudication is available as soon as the federal government’s property invasion occurs, and that takings claims against local governments should proceed the same way.

Solicitor General Noel Francisco argued the case on behalf of the United States. He disagreed with Knick’s view that a constitutional violation is complete when an invasion occurs. In the government’s view, “Williamson County’s premise” —  “that the government doesn’t violate the Takings Clause if it provides a mechanism for awarding compensation after the fact” – “was correct.” But Francisco argued that Williamson County’s rule is still wrong, for a subtle reason: Even though the Constitution has not been violated when a property invasion occurs, the owner still has been deprived of a constitutional right to just compensation. Kagan seemed skeptical about this novel theory, remarking that it “seems like a sentence that … you can’t even say without stumbling over it.” Justice Neil Gorsuch added, “I’m with Justice Kagan, I can’t think of another area in the law where we have this kind of artificial distinction that you’re proposing.” Francisco responded that the distinction may be novel, but is not artificial; it’s justified because “the Takings Clause is uniquely different” in its contemplation of lawful takings conditioned on a right to just compensation.

Kavanaugh, who some commentators have speculated may be the case’s deciding vote, asked his first question in the case during Francisco’s argument. He noted that both Knick and the United States seemed to share a “premise” that the state courts “aren’t as good as the federal courts,” and asked, “Why is that in your view?” Francisco responded that it is not his own opinion, but that Congress’ judgment, in enacting statutes like Section 1983, was that “state courts could not be fully entrusted to enforce federal constitutional rights.” But, Kavanaugh continued, “[d]idn’t Williamson County necessarily reject that interpretation of [Section] 1983?” And, he added, doesn’t stare decisis apply more strongly to interpretations of statutes? And wouldn’t Williamson County need to be “more than just wrong” for the court to overrule it? Francisco reiterated that Williamson County was thinly explained and has had unintended consequences for takings plaintiffs. Kavanaugh then seemed to throw Francisco a lifeline by asking about the government’s alternative theory, which is that federal courts can hear state takings claims under the statute conferring federal-question jurisdiction, 28 U.S.C. § 1331. Francisco agreed that the court could rule in Knick’s favor under Section 1331 without overruling Williamson County.

Francisco’s argument time closed with a question from Kagan, probing why the government disagrees with Knick that a taking is complete at the time of the property invasion. Francisco, setting forth a position common to both the United States and the township, emphasized the difficulty of requiring government officials (who are “duty bound not to violate the Constitution”) to determine, “on the front end,” whether a taking has occurred, before they have complete information about it.

Teresa Ficken Sachs argued for the township. Justice Samuel Alito posed many of the skeptical questions during her argument, suggesting that towns would need to make up-front determinations about the constitutionality of their actions no matter what (“You’re really telling me,” he asked, that as a lawyer advising a municipality, “you would not tell [them] … to think about the budgetary consequences of what [they’re] doing?”). He also pressed Sachs on why she preferred state court to federal court: “You want the home court advantage, right? That’s what all … litigants and lawyers want.” Sachs disagreed, stating that the town opposed federal court access because that access hinges on “a preliminary determination that we’ve somehow violated the Constitution. And that’s what we don’t want.” When Alito questioned that response (“[Y]ou’re telling me you have no practical reason for wanting to be in state court … it’s just some airy, theoretical idea …?”), Sachs added that state courts may better understand state interests and state property law, and that traveling to federal court might burden rural municipal lawyers.

Echoing the apparent theme of the day, Breyer asked: “Is there some kind of middle position here?” He, along with Roberts, wondered if the existing requirement that state compensation proceedings must be “reasonable, certain, and adequate” might allay some plaintiffs’ concerns. Sachs agreed with that principle, but defended Pennsylvania’s proceedings as speedy and “very, very favorable … for the property owner.”

Kagan asked about a problem emphasized in the briefing, and described in my earlier posts on this case: that plaintiffs who rely on state court compensation mechanisms often find themselves barred from federal court under preclusion rules, a consequence the court itself explained in a case called San Remo Hotel v. San Francisco. Sachs described that consequence as “a necessary result of the full faith and credit statute,” and stood by the town’s position that the court’s role is to clarify the implications of such statutes so that Congress can revise them if it sees fit. In response to questions from Kavanaugh, Sachs resisted the government’s theory “that section 1331 does allow a certain narrow category of state law claims to be directly brought in federal court.” Sachs noted that Knick actually did not bring a state-law claim in this case, but that in any event, such an exception would quickly swallow the rule: “Every state case would now be in federal court.”

In rebuttal, Breemer returned to Knick’s position that a taking is complete at the time of the property invasion. Sotomayor pushed back. “[W]hy can’t the state just come in and say we will pay just compensation to anyone who’s been injured by this so long as a state court says it’s a taking?” Breemer concluded where he had begun, emphasizing Knick’s position that the Constitution provides otherwise, and that overruling Williamson County’s contrary conclusion would solve the federal-court-access problem that has plagued local takings plaintiffs. Court-watchers will need to wait to see whether at least five justices agree, whether they choose to affirm Williamson County, or whether they are able to reach consensus on some middle ground.

Editor’s Note: Analysis based on transcript of oral argument.

* * *

Past cases linked to in this post:

San Remo Hotel, L.P. v. City County of San Francisco, 545 U.S. 323 (2005)
Williamson Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985)

The post Reargument analysis: Justices seek a “middle position” in takings litigation case appeared first on SCOTUSblog.

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SCOTUS Blog by Edith Roberts - 16h ago

For this blog, in a post that first appeared at Howe on the Court, Amy Howe analyzes yesterday’s oral argument in Tennessee Wine & Spirits Retailers Association v. Blair, a challenge to Tennessee’s durational residency requirements for liquor licensing. For The Washington Post, Robert Barnes reports that “Supreme Court justices indicated … that they thought Tennessee’s tough residency requirements for those who want to run liquor stores have more to do with protecting in-state economic interests than guarding against the evils of alcohol[, [b]ut they also wondered how far they could go, since the Constitution gives states an especially pivotal role in regulating booze.” Additional coverage comes from Adam Liptak for The New York Times, Richard Wolf for USA Today. Commentary comes in video from ABC News Live’s The Briefing Room.

For The Wall Street Journal, Jess Bravin and Brent Kendall report on yesterday’s reargument in Knick v. Township of Scott, Pennsylvania, which asks whether the court should reconsider a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution, noting that the case “is part of a drive by conservative activists to pare back the power state and local governments exercise over land use, which they believe can so impair private property as to be the legal equivalent of a ‘taking’ that triggers the constitutional right to ‘just compensation.’” At The WLF Legal Pulse, Richard Samp writes that the argument “made clear that state and local governments are playing Whack-a-Mole with private property rights.”

Ronald Mann has this blog’s analysis of Tuesday’s argument in Home Depot U.S.A. Inc. v. Jackson, which involves the ability of a third-party class-action defendant to remove a counterclaim from state court to federal court. At Mayer Brown’s Class Defense Blog, Archis Parasharami and others write that “based on [the] oral argument, the Court may be closely divided on the questions presented in the case.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.]

This blog’s analysis of Tuesday’s oral argument in Azar v. Allina Health Services, which asks whether the Department of Health and Human Services was required to conduct notice-and-comment rulemaking before altering its Medicare hospital-reimbursement formula, comes from Abbe Gluck and Anne Joseph O’Connell. At Law360 (subscription required), Jeff Overley reports that the justices “appeared skeptical of the U.S. Department of Health and Human Services’ refusal to conduct notice-and-comment rulemaking when outlining a Medicare reimbursement policy that affects billions of dollars in hospital payments.”

Subscript Law provides a graphic explainer for Tuesday’s decision in New Prime Inc. v. Oliveira, in which the court held that an exemption in the Federal Arbitration Act for transportation workers involved in interstate commerce applies to independent contractors.  At his eponymous blog, Ross Runkel remarks that “[s]ome pundits were surprised that the Court would issue a ‘pro-worker,’ ‘anti-arbitration’ decision, failing to understand that the Justices all do their best to be faithful to the words Congress puts into its statutes.” Alexander Chemers and Robert Roginson discuss the opinion at Ogletree Deakins.

Rory Little analyzes Tuesday’s opinion in Stokeling v. United States, in which the justices ruled that a state-law robbery conviction can qualify as a “violent felony” for the purposes of a sentencing enhancement under the Armed Career Criminal Act even when the conviction does not require the use of violent force, for this blog. At Reason’s Volokh Conspiracy blog, Jonathan Adler observes that the first divided opinion of the term “was a 5-4 decision, but not along the lines many would expect.”

At Bloomberg Law, Kimberly Robinson reports that “[a] New York district court ruling barring the Trump administration from including a citizenship question on the 2020 census complicates the U.S. Supreme Court’s next steps in a case that already faces a tight deadline.” Another look at the possible effect of the ruling on the pending Supreme Court case, Department of Commerce v. U.S. District Court for the Southern District of New York, comes from Alison Frankel at Reuters.

In an op-ed at Townhall, Stephanie Taub weighs in on The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, maintaining that “[t]he fact that a nearly 100-year old war memorial dedicated to 49 brave men who died for this country is in jeopardy demonstrates precisely why we need the Court’s help now, more than ever, to return reason and sanity to the Constitution’s religion clauses.” Additional commentary comes from Kelly Shackelford in an op-ed at The Daily Caller. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.]

Briefly:

  • At The National Law Journal (subscription or registration required), Tony Mauro interviews Nancy Maveety, the author of “Glass and Gavel: The U.S. Supreme Court and Alcohol,” which Maveety describes as “the story of alcohol in American life and law, a cocktail-by-cocktail history of the eras of the Supreme Court, and its alcohol-related decisions.”
  • At Politico Magazine, Daniel Hemel notes that Justice Ruth Bader Ginsburg’s recent health issues have reopened discussions about the drawbacks of life tenure for Supreme Court justices; he concludes that “[f]ixed terms, age caps, and forced retirement are all strong medicine for the problem of judicial disability,” and that “[i]n light of the flaws inherent in each, the better course of treatment is none at all.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument.

The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts have original jurisdiction.” In 2005, responding to concerns that state courts have been unduly receptive to class actions, Congress adopted the Class Action Fairness Act (often called the CAFA), which included a variety of provisions designed to make it easier for class-action defendants to remove those cases to federal court. One provision, in Section 1332, granted original federal jurisdiction over most class actions seeking a recovery of more than $5 million. Another provision, in Section 1453, provided that “any defendant” can remove a “class action” as defined in Section 1332.

Together, those provisions make it clear that if a plaintiff initiates a large class action in state court, any of the defendants can remove the case to federal court. Home Depot presents an odd twist on that framework. In this case, the initial litigation was between Citibank and respondent George Jackson: Citibank sued Jackson in state court to collect a debt arising out of a purchase Jackson made that was connected to Home Depot. All agree that the Citibank action could not have been brought in (or removed to) federal court. The next step, though, is what makes the case interesting: Jackson responded by asserting both defensive claims against Citibank and a class action against Home Depot, alleging a variety of consumer-protection claims. Citibank then withdrew its claim against Jackson, leaving Home Depot alone in the litigation against Jackson. Home Depot responded by filing a petition seeking to remove the matter to federal court under the CAFA. The lower courts rejected Home Depot’s petition and concluded the case should return to state court.

As I explained in my preview, the parties for the most part briefed the case on the question whether Home Depot qualifies as a “defendant” under Section 1441 and 1453, with Home Depot arguing that as a literal matter it plainly is a defendant and Jackson arguing that the history of Section 1441 shows that the term “defendant” refers only to the party against whom an action initially is filed.

Kagan came to the bench with a somewhat different take on the matter, appearing strongly predisposed to rule against Home Depot because the initial complaint in this case (filed by Citibank) did not institute a “civil action” over which federal courts would “have original jurisdiction.” For her, the key to the case isn’t whether Home Depot is or is not a defendant, it is whether the “civil action” at issue here could have been brought in federal court – and it plainly could not have been. That view squarely collided with the presentation on behalf of Home Depot, represented by William Barnette.

William P. Barnette for petitioner (Art Lien)

Early on Kagan pointed out that Section “1441(a), which is the principal removal statute, says that a civil action, not claims, but a civil action can be removed where the district courts have original jurisdiction. And what I’ve always taken that to mean is that to look for original jurisdiction, you look to the plaintiff’s complaint, the original plaintiff.” She could agree with Barnette that:

[Y]our claim might be under the original jurisdiction of the district courts if … that had started the lawsuit. But that didn’t start the lawsuit. The lawsuit, the civil action, was started by a claim that’s completely non-federal in nature. And you look to the original claim to decide whether the courts have original jurisdiction, don’t you?

Justices Sonia Sotomayor and Stephen Breyer saw the case much the same way. Sotomayor, for example, asked Barnette whether his case would “fall apart if we don’t accept your claim-by-claim analysis? You approach this claim by claim. I’m not quite sure how we can … do that since the statute speaks about a civil action and it talks about removal of an action, not a removal of a claim.”

Breyer emphasized Section 1332, which “says the term ‘class action’ means any civil action … filed under Rule 23 [or analogous state law]. Did [Jackson], the one who sued you, … did he file a civil action?” When Barnette suggested that Jackson had filed such an action, Breyer disagreed forcefully: “I don’t think he did, did he? Where does it say he did? …. What he did was he filed a …. [counter]claim.”

Barnette continued to press his point that Home Depot should be regarded as a defendant, but Breyer kept taking the discussion back to the filing of the complaint against Home Depot by the defendant on the original complaint: “Where does it say that … when a defendant files a class action, … that is an action filed, a civil action, because civil actions are usually filed by plaintiffs.” Indeed, when Barnette persistently redirected the discussion back to his baseline position, the Breyer seemed to lose patience, commenting that he was only asking “a simple question” and asking: “Why are you still not giving direct answers?”

By the end of the discussion, Breyer seemed as settled in his view as Kagan, explaining at one point: “Now I’m over with Justice Kagan. A civil action is an action brought by a plaintiff. And, therefore, since this isn’t a civil action … filed under Rule 23 [or analogous state law], they can’t take advantage of 1453 because they don’t fit within the definition.”

Kagan summarized the discussion near the end of Barnette’s presentation, explaining:

Mr. Barnette, under your theory, every time one party joins another party, we would have a new civil action. … But we don’t. We only have one civil action, and the civil action includes a multitude of claims, or can, between and among a wide range of parties. But it’s only one civil action. …

[Y]ou’re suggesting that we should look at this case as though the original claim never occurred and we should pretend that the claim started with the original defendant. But the case did not start with the original defendant. The civil action started with the original plaintiff, who brought a claim against a defendant who then brought a claim against you.

That is not to say that Paul Bland’s argument on behalf of Jackson was entirely stress-free. Chief Justice John Roberts and Justice Samuel Alito probed closely on the textual support for and policy implications of Bland’s position. When Alito started to press Bland closely, Kagan repeatedly interrupted to explain how she would analyze the problem. At one point, she engaged Alito so directly that he asked Bland whether he “agree[d] with Justice Kagan’s answer to my question.”

F. Paul Bland for respondent (Art Lien)

Bland was reluctant to embrace the position that Kagan had articulated that it is irrelevant whether Home Depot was or was not a defendant because Jackson had not filed a “civil action” against Home Depot. Bland spent much of his argument trying to resist comments by Alito and Justice Brett Kavanaugh suggesting that Home Depot must be accepted as a defendant. Alito, for example, commented at one point that if “we look at the text, we have a reference to the defendant or the defendants. So Home Depot would qualify there, would it not?” When Bland suggested that the traditional understanding of Section 1441 meant that Home Depot was not a defendant, Alito was wholly unpersuaded: “You’re reading things into it. … [I]n the ordinary sense of the term, are they not defendants? …. They are some kind of defendants.”

Alito also seemed to think affirming the decision in this case would fly in the face of Congress’ intent in adopting the CAFA, as he asked Bland rhetorically:

[I]s there any good reason why a claim like this … should not be removable to federal court? … If a claim like this is filed originally in … state court, it can be removed, but if it comes into the state court in this strange sort of back-door way, then it has to stay in state court. You really think that that’s a possible decision Congress would make?

At the end of the day, it is not at all clear from the argument how the court will resolve this one. We should find out by the end of June.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case. The author of this post is not affiliated with the firm.]

Editor’s Note: Analysis based on transcript of oral argument.

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In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayor’s dissent was joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Elena Kagan.

Meanwhile, no justice expressed criticism of the ACCA’s statutory language or structure (something that some, notably Justice Samuel Alito, have done in the past). This is the second ACCA opinion of the term; the opinion in United States v. Stitt back in December was unanimous. Predictions are always risky, but with Justice Antonin Scalia (a repeat critic of the statute) gone, and no court criticism voiced today, perhaps the justices have agreed to silence their previously expressed concerns about the ACCA’s language and application (although the court recently granted review of a third ACCA case, United States v. Davis).

 How do state law robbery statutes interact with the ACCA?

As I wrote in my preview, this case involves the ACCA’s 15-year mandatory minimum sentence enhancement for certain firearms offenders who have three qualifying felony convictions. The question here was whether a state robbery statute that permits conviction when the defendant uses physical “force sufficient to overcome a victim’s resistance” can constitute a prior conviction for a “violent felony” for purposes of applying the ACCA enhancement.

Denard Stokeling was convicted in 2015 of a federal felon-in-possession violation. If his prior 1997 Florida robbery conviction qualified as a “violent felony” under the ACCA, he was required to be sentenced to a minimum term of 15 years in prison. A district judge concluded that the particular facts of Stokeling’s 1997 robbery “did not justify an enhancement” and sentenced him to seven years. The U.S. Court of Appeals for the 11th Circuit, however, noted that it was error for the district court to examine the particular facts; instead a “categorical” examination of the Florida robbery statute was required. Sotomayor’s dissent yesterday provides as simple an explanation of the “categorical approach” to the ACCA as I’ve ever read: “[T]hat method requires asking whether the least culpable conduct covered by the [state] statute ‘has as an element the use, attempted use, or threatened use of physical force.’” The 11th Circuit concluded in Stokeling’s case that the Florida robbery statute, which requires sufficient force to overcome “resistance by the victim,” sufficed to support the ACCA statutory definition.

Yesterday’s majority affirmed the 11th Circuit’s view. Thomas’ opinion is based largely on his evaluation of the common law’s definition of force sufficient to distinguish robbery from simple theft. Citing 1828 and 1903 treatises, Thomas explains that “common-law authorities frequently used the terms ‘violence’ and ‘force’ interchangeably. The 1905 treatise stated that when a victim’s “resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance.” Thomas concludes that Congress intended to adopt this common-law concept in the ACCA, and that Florida’s robbery statute is consistent with it. This is true even though Congress in 1986 dropped the word “robbery” from the ACCA; Thomas pointedly notes that the title of that legislation was “Expansion of Predicate Offenses for Armed Career Criminal Penalties.” He adds that somewhere between 31 and 46 states also appear to have adopted this definition, and that Congress as well as the Supreme Court’s ACCA precedents have expressed a desire to accommodate rather than “render inapplicable” the criminal felony statutes of “many States.”

Responding directly to Sotomayor’s dissent, the majority says that its ruling “comports with Johnson v. United States,” a 2010 Scalia decision  finding that mere physical contact was insufficient to meet the “physical force” requirement of the ACCA.  (This Johnson is not the same as Scalia’s 2015 decision in a different Johnson case, which held that a related definitional section of the ACCA was unconstitutionally vague.) Thomas accuses Stokeling (and by clear reference, the dissenters) of “cherry pick[ing] adjectives from parentheticals in” Johnson to support an argument that a “heightened degree of force” is required for the ACCA. He then embraces a definition found in Johnson and endorsed last term in Sessions v. Dimaya: “’[P]hysical force’ [in the ACCA] means ‘force capable of causing physical pain or injury.’” This requires, the majority explains, not “likelihood or probability,” but rather “only potentiality.” The bottom line is that although Johnson held that “common-law battery does not require ‘force capable of causing physical pain or injury,’” robbery does, “even if” the pain or injury that could be caused by the force involved in a robbery might be “minimal.”

At 19 pages, Sotomayor’s dissent is half again as long as the majority opinion. More interesting than the details of her arguments, perhaps, is that the chief justice joined her opinion, while Breyer broke ranks with the more liberal justices to provide the deciding vote.

On the merits, Sotomayor concludes that Congress did not, expressly or necessarily, adopt a common-law “minimal force” definition for robbery in the ACCA. Meanwhile, she argues, Johnson clearly decided that “physical force” meant “violent force.” She criticizes the majority for “parsing cherry-picked adjectives” rather than “looking to how Johnson actually answered th[e] question,” and she includes a long block quote from Johnson in which Scalia used the terms “a substantial degree of force” “great physical force” “strong physical force,” and “active violence.” (Scalia took that last phrase from a decision written by Breyer when he was chief judge of the U.S. Court of Appeals for the 1st Circuit.) Even if “any first-year [law] student” learns that minimal force might constitute sufficient force at common law, Sotomayor argues that Johnson clearly indicated that “a heightened degree of force” is required under the ACCA. In writing the ACCA, Sotomayor contends, Congress did not intend that a mandatory 15-year prison term be applied to “glorified pickpockets.” And she accuses the majority of announcing a “brave new world of textual interpretation” and “bury[ing]” Scalia’s first Johnson opinion.

Conclusion

It is perhaps unsurprising that a relatively conservative court has now twice this term ratified broad ACCA statutory applications that tend to favor the government. Yet as I noted above, the court has granted certiorari in another ACCA case to be argued this term. In United States v. Davis, the defendant seeks to apply the 2015 Johnson’s unconstitutionally-vague rationale to a neighboring section of the ACCA definition of “crime of violence.” In light of last term’s result in Sessions v. Dimaya, in which the Supreme Court decided 5-4 that the later Johnson required invalidation of a “violent felony” definition in an immigration statute, Davis could invalidate yet another part of the ACCA.

Thus the ACCA survives as a somewhat schizophrenic (or to use Sotomayor’s phrase from yesterday, “Janus-faced”) criminal sentencing statute: mandatorily harsh for those to whom it is found to apply, yet unconstitutionally vague for other offenders. As I reported about the Stokeling and Stitt arguments (they were argued on the same day), some of the justices expressed a “jaundiced view of the ACCA.” Perhaps Davis will provide a vehicle for further fire. But yesterday’s opinion seems to cement the view that when the court concludes that common law or modern state law is clear, even if harsh, it will not depart from those definitions for ACCA purposes.

* * *

Editor’s Note: Analysis based on transcript of oral argument.

Past cases linked to in this post:

Johnson v. United States, 130 S. Ct. 1265 (2010)

Johnson v. United States, 135 S. Ct. 2551 (2015)

Sessions v. Dimaya, 138 S. Ct. 1204 (2018)

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Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail license to sell alcohol there, or is the state’s power instead limited by a doctrine known as the dormant commerce clause, which bars states from discriminating against interstate commerce? The Supreme Court’s answer could have a significant impact on where Americans buy their alcohol and what kinds are available to them, but after an hour of oral argument it was hard to see exactly where the justices were headed in the case.

Shay Dvoretzky for petitioner (Art Lien)

The dispute pits Tennessee Wine and Spirits Retailers Association, a trade association that has taken the lead in defending the Tennessee law, against both Total Wine, the national mega-chain with nearly 200 stores in 23 states, and Doug and Mary Ketchum, who moved to Tennessee to buy a liquor store after doctors told them that the weather in their home state of Utah was bad for their disabled daughter. When Total Wine and the Ketchums applied for licenses to run retail stores in Nashville and Memphis, respectively, the Tennessee Alcoholic Beverage Commission was poised to approve their applications, until the retailers – citing the residency requirement – threatened to sue the state.

The retailers’ threat prompted the TABC to go to federal court, seeking a ruling on whether the residency requirement is constitutional. The U.S. Court of Appeals for the 6th Circuit struck down the requirement, and the justices agreed last year to hear the case.

At this morning’s oral argument, there was general agreement that, if Total Wine and the Ketchums wanted to sell something else – for example, milk or paint – Tennessee’s residency requirement would be unconstitutional, because it violates the dormant commerce clause by discriminating against out-of-state residents. The question before the court, then, was whether the 21st Amendment “saves” laws like Tennessee’s.

Representing the retailers defending the residency requirement, attorney Shay Dvoretzky told the justices that it does. The 21st Amendment, Dvoretzky argued, was intended to give back the powers that the states had had before Prohibition under two federal laws – the Wilson Act and the Webb-Kenyon Act – that gave them “near complete” power to regulate the distribution of liquor. States can do almost anything, Dvoretzky stressed, as long as they treat in-state and out-of-state products the same, which the residency requirement does.

This expansive power, Dvoretzky made clear in responding to a question from Justice Sonia Sotomayor, means that laws like Tennessee’s residency requirement do not violate the Constitution even if they are intended to protect in-state retailers from competition. There is no “economic protectionism” exception to the 21st Amendment, Dvoretzky emphasized.

Dvoretzky later repeated this idea in response to a question from Justice Samuel Alito, who asked him whether the state could impose a requirement that the grandparents of an applicant for a liquor license have lived in Tennessee. Dvoretzky responded that such a requirement “would not create a dormant Commerce Clause problem.” Before Prohibition, Dvoretzky said, the states’ powers included the power to discriminate against out-of-state interests.

Justice Brett Kavanaugh was skeptical. The problem I’m having, Kavanaugh said to Dvoretzky, is that nothing in the text of the 21st Amendment – which bars the “transportation or importation” of liquor into a state in violation of that state’s laws – gives the states complete authority over the distribution of liquor. All that the 21st Amendment was intended to do, Kavanaugh suggested, was let states remain “dry” if they opted to do so; it wasn’t intended to allow states to pass laws that discriminate against out-of-state interests.

Arguing as a “friend of the court” supporting the retailers, Illinois Solicitor General David Franklin represented 34 states and the District of Columbia. Franklin told the justices that the twin questions of who can sell alcohol and on what terms have always been at the heart of the 21st Amendment.

Justice Elena Kagan appeared unconvinced that states have complete latitude to regulate those questions, observing that Tennessee’s residency requirement seems to be an outlier. “Is there anything in your argument,” she asked Franklin, “that would give us a way to say that” these kinds of extreme examples are “clearly protectionist” and must be struck down, even if more reasonable residency requirements might survive?

Franklin pushed back, responding that although Tennessee’s residency requirements could potentially violate other parts of the Constitution, they do not violate the dormant commerce clause. That prompted Kagan to ask whether a better option for the court would be for it to rule that the dormant commerce clause does apply to the residency requirement, at which point the state could come back and demonstrate that it has “real health and safety concerns” that justify the laws.

Franklin resisted, telling Kagan that such an approach would “still embroil the courts in the kind of line drawing that the 21st Amendment was designed to relieve them of” and would “be at odds with the broad regulatory discretion” that the 21st Amendment gives the states. The argument that Total Wine and the Ketchums are making, Franklin emphasized, would strip all meaning from the 21st Amendment by treating alcohol the same as any other commodity. “But it’s not,” Franklin concluded.

Appearing on behalf of Total Wine and the Ketchums, lawyer Carter Phillips reiterated Kavanaugh’s suggestion (later echoed by Alito) that the 21st Amendment does not give states broad authority to regulate alcohol but instead was intended to allow states that had decided to remain “dry” to stop the importation of alcohol from other states.

Carter G. Phillips for respondents (Art Lien)

Justice Stephen Breyer countered that the Supreme Court’s earlier cases had already recognized that the 21st Amendment gives states “virtually complete control” over how they want to structure their liquor-distribution systems. What’s more, Breyer added, most states have long had some sort of residency requirement. “The history favors the other side,” Breyer told Phillips, even if it doesn’t necessarily make sense.

Kagan and Justice Neil Gorsuch fretted aloud about the prospect that a ruling for Total Wine and the Ketchums would open the doors to new challenges – for example, to other state laws regulating the sale and distribution of liquor. If we rule for you, Gorsuch told Phillips, the next case will argue that the current system discriminates against out-of-state residents by requiring retailers to have a physical presence in the state. Isn’t the next business model, Gorsuch continued, just to operate as the Amazon of liquor?

Phillips demurred, noting that Total Wine is a brick-and-mortar retailer. In any event, he responded, if such cases come to fruition, the states can make different arguments about why liquor retailers need to have an in-state presence. But in this case, he emphasized, Tennessee has never tried to explain why its residency requirements are necessary.

This is a hard case to handicap: Justice Ruth Bader Ginsburg was absent, Chief Justice John Roberts said very little, and Justice Clarence Thomas did not say anything at all. Throw in the fact that Tennessee has made only a half-hearted attempt to defend the residency requirements, and it becomes even more difficult to predict exactly what the justices are likely to do. A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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SCOTUS Blog by Andrew Hamm - 1d ago

The transcript of oral argument in Knick v. Township of Scott is available on the Supreme Court’s website; the transcript in Tennessee Wine & Spirits Retailers Association v. Blair is also available.

The post Argument transcripts appeared first on SCOTUSblog.

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Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires the Supreme Court to interpret a provision of the Medicare Act, 42 U.S.C. §§ 1395hh(a)(2), that applies to any “substantive” changes to benefits, payment of services, or eligibility, and, therefore implicates significant components of the entire program. At a broader level still, and beyond the Medicare context, the case has administrative law mavens watching because it gives the court the opportunity to opine on some still unsettled, yet central, administrative law questions about the line between substantive and interpretive rules.

The bench was missing two justices during the argument. Justice Ruth Bader Ginsburg is recuperating at home from lung surgery, but will participate in the decision based on the briefs and the argument transcript. Justice Brett Kavanaugh is recused because he wrote the U.S. Court of Appeals for the District of Columbia Circuit’s decision invalidating the HHS formula — but his presence was definitely felt.

The focus of the argument teetered between the particular statutory interpretation of the Medicare Act and HHS’s administrative authority more broadly. Justice Sonia Sotomayor led off the questioning by asking the Deputy Solicitor General Edwin Kneedler about one of the key open areas of administrative law when it comes to the fuzzy line between interpretive rules, which do not require notice-and-comment procedures under the Administrative Procedure Act, and substantive rules, which typically do: What makes an administrative decision binding? Although the reimbursement formula technically binds only the private contractors who work for the agency, Sotomayor emphasized that “every single provider is going to be given a fraction that incorporates your policy.”

As sometimes happens in administrative law cases, the justices’ questioning did not break down along traditional ideological lines. Sotomayor, retaining the floor, next turned to statutory construction. She was soon joined by Justices Elena Kagan and Neil Gorsuch in the same line of questioning — which echoed the reasoning of Kavanaugh’s opinion for the D.C. Circuit.

The trio of justices resisted the government’s reading of the Medicare Act as coterminous with the APA. They pressed Kneedler to the point where he could barely get a word in to explain how the two acts could be construed in the same way given the clear textual differences between them.

Sotomayor wondered why Congress did not just use the language of the APA in its 1987 amendment to the Medicare Act if it meant to include the same exceptions to notice and comment that the APA allows. Under the 1987 amendment, the Medicare Act requires prior notice and comment for any “rule, requirement, or other statement of policy … that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits.”

Gorsuch noted that the very idea of “statements of policy as being substantive” is a “complete incoherent statement in APA language” because under the APA, statements of policy lack legal force and are therefore excluded from the notice-and-comment requirement. Gorsuch next pointed out that, although the Medicare Act adopts the APA’s good-cause exception to rulemaking verbatim, “it clearly doesn’t adopt the substantive interpretive language verbatim, which is right next door … in the APA.” He told the government it was “asking us to think that Congress recreated that [APA] section in this statute through this rather oblique mechanism.”

Justice Stephen Breyer jumped in, in an apparent attempt to offer support to the government with his reading of the Medicare Act’s legislative and enactment history. Breyer read the history to say that, because the government had previously avoided notice and comment in its Medicare decisions, Congress essentially told the agency that no matter what the agency called a particular decision, if that decision affected a substantive legal standard, the agency had to give prior notice and accept public comments.

The Medicare Act’s legislative and enactment history was more prominent at the argument than in the briefing. Both Breyer and Gorsuch said they found the legislative history of the Medicare Act “confused.” Specifically, the argument focused on both the original version of the provision, which was enacted in 1986 and seemed to track the APA, and the amended and current version, enacted in 1987. Kagan asked what the 1987 amendment “ends up actually accomplishing” if it goes farther than the APA, which was already covered by the 1986 legislation. Gorsuch, after making clear that he had read the legislative history but preferred to focus on the text, asked how the 1987 additions could be “entirely superfluous.”

Kagan also asked the government how it could argue that the term “substantive” means something different in the provision in question — 42 U.S.C. § 1395hh(a)(2) — where the government reads “substantive legal change” to mean something nonbinding and non-interpretive, and in § 1395hh(e), where the government reads “substantive change” to mean something material or significant. She wondered why the Supreme Court should interpret the word “substantive” in “two different ways in two very nearby provisions.” Gorsuch jumped in to second Kagan’s question.

Kneedler then pivoted to the feared consequences of an affirmance, noting that there are thousands of pages of Medicare manuals that could be subject to notice and comment, grinding the nation’s largest insurance system to a halt. But Sotomayor, in a question later echoed by Kagan, pointed to the D.C. Circuit’s post-Allina decision in Clarian Health West, LLC v. Hargan, which limited Allina’s reach by reading a different Medicare-manual decision as not requiring notice and comment. Sotomayor and Kagan both asked whether Clarian undercuts the government’s consequences argument.

The chief justice, who had been quiet during the government’s argument, was the first to engage with the hospitals’ attorney, Pratik Shah. Like Sotomayor, the chief justice opened with a question on whether HHS’s decision was binding, but unlike Sotomayor, he suggested that the proposed new formulae were “not binding … interim calculation[s].” Shah disputed that characterization, arguing that the government’s actions were indeed binding because the “only recourse … is to file an administrative appeal or sue in court.” There was some discussion about whether the agency appeals board correctly decided that it lacked power to review the formulae contested here.

Shah came back to the “statement of policy” language in the Medicare Act. If a statement of policy “lacks the force of law” under the APA, he argued, to conclude that its addition to the Medicare Act’s section requiring notice and comment does nothing is “reading significant words out of a statute. That,” he said, “is not how statutory construction works.” Picking up on Gorsuch’s earlier point, Shah added that the Medicare Act’s language would be “an exceedingly, extraordinarily, round-about way for Congress to try to adopt the interpretive rule exception which is [already] sitting on the books.”

Sotomayor then asked what “substantive legal [standard]” means if it does not mean legislative (noninterpretive) rules under the APA, providing Shah the opportunity to make his argument that substantive in this phrase is meant to distinguish procedural actions. The discussion returned to the convoluted legislative history — specifically, what cases members of Congress were referring to in a 1987 conference committee report connected to the statutory language at issue. Both the government and the hospitals invoked the D.C. Circuit’s 1987 decision in American Hospital Association v. Bowen as the key case — the government for the proposition that substantive was to be distinguished from interpretive, and the hospitals for the proposition that substantive was to be understood as distinct from procedural.

Turning back to the potential consequences, Breyer asked if the hospitals would really be happy if it takes “19 years” for HHS to make decisions. If it has to use notice and comment for “everything arguably important in every manual,” Breyer said, “it will be here till Christmas come.” Shah seized on this opportunity to cite empirical evidence from the hospitals’ brief indicating that the agency’s rulemakings proceed relatively quickly, arguing that not that many pages of the Medicare manuals would actually be affected. He managed to winnow down the 6,000 pages of manuals to 980 (because the last 5,000 or so are procedural) and then to 400 (because much of the rest are pre-1987 and not covered by the provision) and then to “about 35,” a mathematical feat a majority of the court may not have bought.

Finally, the chief justice returned the argument to administrative law matters, raising the agency’s ordinary ability to choose between rulemaking and adjudication, and asking why this freedom did not permit the government’s action here. Shah responded that “this looks nothing like adjudication,” because it “applies to every hospital nationwide without exception” and it is “prospective” (raising, without naming, issues in the 1969 Supreme Court case National Labor Relations Board v. Wyman-Gordon Co.).

For those trying to read the tea leaves (always a risky endeavor), Sotomayor, Kagan and Gorsuch seemed inclined to rule against the government, whereas Breyer and perhaps the chief justice seemed inclined in the other direction. Justice Samuel Alito said very little. Justice Clarence Thomas did not comment, but, given the justices’ preference for textual analysis, we suspect that Thomas and either Ginsburg, Alito or both will ultimately side against the government and affirm the Kavanaugh opinion.

Editor’s Note: Analysis based on transcript of oral argument.

* * *

Past cases linked to in this post:

American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987)
Clarian Health W., LLC v. Hargan, 878 F.3d 346 (D.C. Cir. 2017)
National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759 (1969)

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SCOTUS Blog by John Elwood - 1d ago

John Elwood reviews Monday’s relists.

I’m traveling today, so I’m going to be more summary than usual. The April calendar already appears to have a full complement of 12 cases, but the court in theory could add to it with this Friday’s grants. Admittedly, if it does so, petitioners won’t have the full 30 days to file reply briefs before oral argument. After this Friday, the court’s next scheduled conference isn’t until February 15 – almost a month from now. And any cases granted at that conference will definitely be considered next fall.

Just one criminal law case among the relist rolls this week: Kahler v. Kansas, 16-6135, a capital case that addresses whether the Sunflower State’s effort to revise its courts’ consideration of the insanity defense violates the Eighth and 14th Amendments. But don’t be watching the order list for this case just yet – after relisting it for this Friday’s conference, the court called for the record. While that is a sign the court is looking very closely at this case, it means the court won’t consider it at conference again until the record has arrived and the justices have had a chance to review it.

In the “burying the lede” department, we have six other new relists. All involve challenges to Trump administration policies, and all involve the unusual procedure of requesting “cert before judgment” – that is, seeking Supreme Court review before the relevant court of appeals has ruled in the case. Three cases – Department of Homeland Security v. Regents of the University of California, 18-587, Trump v. NAACP, 18-588, and Nielsen v. Vidal, 18-589 – involve the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals program. Under that program, DHS would refrain from taking immigration actions against people brought to the country as children, and those people would be eligible for work permits. Three other new relists involve challenges to the Defense Department’s policy respecting transgender service members, under which those found to have gender dysphoria would generally be barred from military service: Trump v. Karnoski, 18-676, Trump v. Jane Doe 2, 18-677, and Trump v. Stockman, 18-678.

In all six cases, a stay has been entered barring the administration from implementing the policy, and the solicitor general seeks cert before judgment to allow speedy review. Barring expedited briefing or a special May sitting, this Friday represents the last real opportunity for these cases to be heard this term.

That’s all for this week. Thanks again to Tom Mitsch for compiling the relists.

New Relists

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference)

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference)

Nielsen v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference)

Trump v. Karnoski, 18-676

Issue: Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.

(relisted after the January 11 conference)

Trump v. Jane Doe 2, 18-677

Issue: Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.

(relisted after the January 11 conference)

Trump v. Stockman, 18-678

Issue: Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.

(relisted after the January 11 conference)

 

Kahler v. Kansas, 18-6135

Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

(relisted after the January 11 conference)

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4 and January 11 conferences)

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7, January 4 and January 11 conferences)

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(relisted after the December 7, January 4 and January 11 conferences)

Moore v. Texas, 18-443.

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(relisted after the December 7, January 4 and January 11 conferences)

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

(relisted after the January 4 and January 11 conferences)

Altitude Express Inc. v. Zarda, 17-1623

Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.

(relisted after the January 4 and January 11 conferences)

R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

(relisted after the January 4 and January 11 conferences)

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280

Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

(relisted after the January 4 and January 11 conferences)

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

(relisted after the January 4 and January 11 conferences)

The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

(relisted after the January 4 and January 11 conferences)

Schock v. United States, 18-406

Issues: (1) Whether a member of the legislative branch may immediately appeal from the denial of his motion to dismiss an indictment on the ground that it violates the separation of powers protected by the Constitution’s rulemaking clause; (2) whether such a claim is immediately appealable by virtue of the collateral order doctrine where it invokes a claim of non-justiciability and separation of powers immunity and as a result cannot be redressed after a trial; (3) whether there is a pendant appellate jurisdiction doctrine to hear such a claim because of its relationship with an immediately appealable speech or debate clause claim, or whether that doctrine is categorically unavailable in criminal cases; and (4) whether the speech and debate clause provides a legislator with immunity from criminal charges that are founded in part on the content of internal House of Representatives communications concerning the interpretation, application or administration of Rules of the Proceedings.

(relisted after the January 4 and January 11 conferences)

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4 and January 11 conferences)

Ramos v. Louisiana, 18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

(relisted after the January 4 and January 11 conferences)

The post Relist Watch appeared first on SCOTUSblog.

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