Analysis

U.S.: The Supreme Court's 'shadow docket' is drawing increasing scrutiny

Fri, 21 Aug 2020 08:00:00 GMT

ABA Journal

The U.S. Supreme Court’s “shadow docket” is coming in from the dark. The term refers to emergency orders and summary decisions that are outside the high court’s main docket of argued cases and decisions.

University of Chicago law professor William Baude is credited with coining the term “shadow docket” in a 2015 law review article, though the specialized docket has been around for decades.

“It’s always been a thing and it’s always been important, but it was something that only elite Supreme Court practitioners paid attention to,” Baude tells the ABA Journal.

U.S.: Pandemic lawsuits from voters, worshipers, prisoners meet roadblock at Supreme Court

Wed, 22 Jul 2020 08:00:00 GMT

USA Today

The coronavirus pandemic has fueled an outbreak of lawsuits from voters, church worshipers, prisoners and others challenging public health policies, but the Supreme Court is proving to be a roadblock.

With the virus circulating in Wisconsin in April, the court refused to extend absentee voting beyond the date of the primary election, forcing those who had not received their ballots to go to the polls or be disenfranchised.

In May, the court turned down a California church's challenge to the state's reopening guidelines, which imposed tighter restrictions on the number of worshipers allowed to attend religious services than on most commercial establishments.

Blockbuster decisions in 6 areas of law made this a SCOTUS term to remember

Thu, 16 Jul 2020 08:30:00 GMT

ABA Journal

The most important lesson from the Supreme Court's just completed term is that it is truly the John Roberts court.

Since the retirement of Justice Anthony Kennedy two years ago, Roberts has been ideologically in the middle of the court and thus, its “swing justice."

This was powerfully evident this term. Roberts voted with the majority in 97% of the cases; he dissented only twice all term. As chief justice, he assigns the opinion when he is in the majority and he wrote the majority opinion in many of the most important cases of the term.

Supreme Court: Montana can't exclude religious schools from scholarship program

Wed, 01 Jul 2020 08:00:00 GMT

MPR News

The U.S. Supreme Court ruled that Montana's exclusion of religious schools from a state scholarship program funded by tax credits violates the Constitution.

The 5-4 decision, in which Chief Justice John Roberts joined the court's other conservatives, is a victory for parents who wanted to use the state tax credit to help send children to religious schools.

The decision is also a victory for conservative religious groups and advocates of school choice who challenged Montana's "no-aid" provision in the state constitution.

Read the court's opinion in Espinoza v. Montana Dept. of Revenue: https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

Roberts a pivotal vote in the Supreme Court’s big opinions

Tue, 30 Jun 2020 08:00:00 GMT

Associated Press

The biggest cases of the Supreme Court term so far have a surprising common thread.

On a court with five Republican appointees, the liberal justices have been in the majority in rulings that make workplace discrimination against gay and transgender people illegal, protect young immigrants from deportation and, as of Monday, struck down a Louisiana law that restricted abortion providers.

As surprising, Chief Justice John Roberts, a conservative nominated by President George W. Bush who has led the court for nearly 15 years, has joined his liberal colleagues in all three.

Supreme Court DACA ruling could sway environmental permits’ fate

Tue, 23 Jun 2020 08:05:00 GMT

Bloomberg News

The Supreme Court’s surprise rebuke last week of the Trump administration’s bid to rescind the Obama-era DACA immigration program may have unexpected impacts on environmental litigation over fossil fuel development, pipelines, and other projects.

The justices ruled June 18 that Trump officials violated key principles of administrative law when they opted to scrap the Deferred Action for Childhood Arrivals policy.

Legal scholars seized on one aspect of the majority opinion to question whether lower courts are likely to continue a practice—known in legalese as “remand without vacatur"—of leaving flawed government decisions intact while giving agencies a second chance to explain themselves.

U.S.: Simple math suggests complex back story at Supreme Court

Wed, 17 Jun 2020 08:00:00 GMT

Associated Press

Supreme Court watchers were left scratching their heads when they learned Justice Neil Gorsuch was the author of Monday’s landmark LGBT rights ruling, but not because the appointee of President Donald Trump might have been expected to side with his conservative colleagues in dissent.

Rather, it was a matter of math.

Each of the nine Supreme Court justices usually writes at least one opinion for each month the court hears arguments. Gorsuch’s opinion was his second for October while three of his colleagues wrote nothing. That highly unusual lineup suggests something going on behind the scenes.

U.S.: Interesting meetings of the minds of Supreme Court justices

Fri, 12 Jun 2020 08:00:00 GMT

Empirical SCOTUS

Unanimity in the Supreme Court used to be the norm. In the early Supreme Court there were few dissents and so there was little opportunity to see differences between the justices’ views outside of how they authored their majority opinions.

This practice has changed over the years as now decisions are more frequently divided rather than unanimous.

Certain justices are also more and less likely to vote alongside one another. Differences in voting agreements can be somewhat staggering.

Last term, for instance, Justice Thomas voted at least in part along with Justices Roberts, Gorsuch, Alito, and Kavanaugh at least 75% of the time each. By contrast he voted along with Justices Ginsburg and Sotomayor 50% of the time each, Justice Breyer 51% of the time, and Justice Kagan 60% of the time.

The 7 most anticipated Supreme Court decisions

Mon, 08 Jun 2020 07:00:00 GMT

The Hill

The Supreme Court is expected to hand down several blockbuster opinions in the next few weeks as one of the most politically volatile terms in recent memory draws to a close.

The hot-button issues awaiting decisions include fights over abortion, Electoral College procedures, LGBT rights in the workplace, the deportation status of nearly 700,000 young undocumented immigrants and the fate of President Trump's tax returns.

With the rulings arriving less than five months before Election Day, closely divided decisions — particularly those that may fall along ideological lines — could make control over future court vacancies an even more pressing issue when voters cast their ballots.

U.S.: Pandemic means a silent June at the Supreme Court

Thu, 04 Jun 2020 08:00:00 GMT

Associated Press

It’s the time of the year when Supreme Court justices can get testy. They might have to find a new way to show it.

The court’s most fought-over decisions in its most consequential cases often come in June, with dueling majority and dissenting opinions. But when a justice is truly steamed to be on a decision’s losing side, the strongest form of protest is reading a summary of the dissent aloud in court. Dissenting justices exercise what a pair of scholars call the “nuclear option” just a handful of times a year, but when they do, they signal that behind the scenes, there’s frustration and even anger.

The coronavirus pandemic has kept the justices from their courtroom since March and forced them to change their ways in many respects.

After 7 years, Indiana returns seized Land Rover in landmark Supreme Court case

Mon, 01 Jun 2020 08:00:00 GMT

Forbes

When Indiana law enforcement seized Tyson Timbs’ Land Rover seven years ago, he had no idea his car would become a vehicle that would jump-start part of the Bill of Rights.

Now seven years later, after winning at both the U.S. Supreme Court and Indiana Supreme Court, Tyson finally recovered his car on Tuesday.

“For years, this case has been important not just for me, but for thousands of people who are caught up in forfeiture lawsuits,” Tyson said. “I didn’t believe that the vehicle would be mine again until I got home and saw it in my driveway.”

10 cases that could change how the Supreme Court looks at the Second Amendment

Thu, 28 May 2020 08:00:00 GMT

CNN

The Supreme Court's solid conservative majority could soon choose to take up its first major Second Amendment case in nearly a decade, positioning the court to override state laws established to limit the availability and accessibility of some firearms and when they can be carried in public.

There are 10 cases waiting before the justices, and it only takes the agreement of four of the nine justices to vote to hear a case -- a low hurdle for the right-leaning Supreme Court seemingly eager to make a broad Second Amendment ruling.

Last month, Justice Brett Kavanaugh expressed his concern that lower courts have been thumbing their noses at Supreme Court precedent on the Second Amendment.

U.S.: Covid-19 cases concerning prisoners' rights hit the Supreme Court

Thu, 21 May 2020 08:00:00 GMT

CNN

The Supreme Court and courts across the country will see an increasing number of pandemic-related disputes in the coming weeks concerning prison conditions and whether prisons are violating the constitutional rights of inmates by failing to adequately protect them against the coronavirus.

Inmates are raising concerns about what they call the deliberate indifference of prison officials during a serious public health crisis and asking for home confinement or appropriate resources to improve hygiene and block the spread of Covid-19.

For their part, state and federal officials are pushing back hard arguing that they are trying to respond to evolving risks while battling an unprecedented global pandemic.

U.S.: COVID-19 and Supreme Court emergencies

Wed, 20 May 2020 08:00:00 GMT

SCOTUSblog

Live teleconference oral arguments have been the most visible sign of the impact of the COVID-19 pandemic on the Supreme Court, and they have prompted copious coverage and commentary. However, the justices have also been busy with a steady flow of cases arising from the pandemic, mostly in the form of emergency stay requests.

These COVID-19-related cases have covered a broad array of important rights and liberties, from voting practices to abortion services to immigration issues to prison conditions, and they have forced the justices to tackle the difficult health and safety issues facing the nation. In some cases the justices have taken no action, in some they have issued a brief order and in a few they have written opinions. Some actions have been unanimous; others have divided the court.

U.S.: What we learned from Supreme Court's first telehearings

Tue, 19 May 2020 08:00:00 GMT

Law 360

A few bloopers notwithstanding, the U.S. Supreme Court has emerged unscathed from the uncharted waters of teleconference hearings and livestreaming prompted by the coronavirus pandemic.

Here's what worked and what didn't, according to the attorneys who were along for the ride.

Over the course of 10 hearings this month, the justices braved their way through mute-button mishaps, an unexpected toilet flush, and the live-tweeting of thousands of attorneys, journalists and court watchers tuning in to the first-ever remote argument session in the court's 230-year history.

"An unmitigated success" is how Lisa Blatt of Williams & Connolly LLP described the session to Law360.

U.S.: Justice Clarence Thomas has found his moment

Wed, 13 May 2020 08:00:00 GMT

CNN

Justice Clarence Thomas has become a luminary in today's Washington, in a way that might never have been imagined in the arc of his life and time on the bench.

Thomas has drawn notice for asking more questions during the Supreme Court's new pandemic-prompted system during oral arguments than he has asked for more than a decade in the courtroom, as the justices broadcast hearings for the first time in their history.

Yet the public attention to his baritone-voice presence comes as the 71-year-old justice has been -- more significantly -- building influence for his brand of conservatism.

U.S.: Climate change unleashes interstate water wars

Fri, 08 May 2020 08:00:00 GMT

E & E News

A looming Supreme Court showdown over water flows from the Pecos River may be the first in a rising swell of interstate water battles driven by climate change.

The justices had been set to hear Texas v. New Mexico, a dispute over floodwaters that overwhelmed the Pecos River in 2014 and 2015, last month, but the court bumped oral arguments to next term in light of the coronavirus pandemic.

Several other battles between states over water from rivers and aquifers could also soon make it to the nation's highest bench, said Beveridge & Diamond PC principal John Cruden to an audience during a recent conference hosted by the Environmental Law Institute and American Law Institute.

U.S.: It's going to be an unusual May in the Supreme Court

Mon, 04 May 2020 08:00:00 GMT

ABA Journal

For the first time in recent memory, the Supreme Court will be holding oral arguments in May, and for the first time ever, they will be by telephone. Because of the COVID-19 pandemic, oral arguments were canceled in the Supreme Court in March and April.

There is precedent for this: During the Spanish flu epidemic in October 1918 the court canceled arguments for a month, and before that, shortened argument calendars for yellow fever outbreaks in 1793 and 1798.

Interestingly, the court did not reschedule oral arguments for May for all of the cases that were scheduled to be heard in March or April.

Courtroom access: Laboratories for live-streaming?

Thu, 30 Apr 2020 08:00:00 GMT

SCOTUSblog

On March 4, the Supreme Court heard oral argument in June Medical Services v. Russo, a challenge to a Louisiana law that requires doctors who perform abortions to have the right to admit patients at nearby hospitals.

That morning, the chief justice of the Michigan Supreme Court, Bridget Mary McCormack, took to Twitter to playfully chide her federal counterparts.

“Good morning,” McCormack wrote. “I see folks have been standing in line since 2 AM to see SCOTUS arguments today.” (In reality, the public line had formed even earlier – in the morning hours on March 2.) The Michigan Supreme Court, McCormack continued, “will also be on the bench today (and tomorrow). No need to line up in the cold to see your court work,” McCormack added, because the Michigan Supreme Court’s proceedings are live-streamed.

Blind justice: No visual cues in U.S. high court phone cases

Wed, 29 Apr 2020 08:00:00 GMT

Associated Press

On the evening before he was to argue a case before the Supreme Court years ago, Jeffrey Fisher broke his glasses. That left the very nearsighted lawyer with an unappealing choice. He could wear contacts and clearly see the justices but not his notes, or skip the contacts and see only his notes.

It wasn’t hard to decide. “I couldn’t imagine doing argument without seeing their faces,” Fisher said.

He won’t have a choice next month.

Because of the coronavirus pandemic the high court is, for the first time in its 230-year history, holding arguments by telephone.