Supreme Court Update 9/26/2016. What to Talk About? Vacancy Last term (ending June 30) Next term (opening October 3)

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1 What to Talk About? Supreme Court Update Lisa Soronen State and Local Legal Center Vacancy Last term (ending June 30) Next term (opening October 3) Vacancy & What s Next for the Court Death of Justice Scalia Narrative on what was supposed to happen contradictory and nonsensical most of us believed it Ginsburg retired years ago Kennedy would retire when John Kasich or Mitt Romney or someone similar is elected Breyer had 9 lives; still had a few more to go Scalia live forever! Loss of a mentor Brennan and Scalia 1

2 Death of Justice Scalia Death of Justice Scalia How does it affect the states? Conservatives good Federalism and preemption Qualified immunity Employment Religion in public spaces Conservatives bad Land use favor private land owners in takings cases Tax Free speech less deferential to government His idiosyncrasies Originalism and textualism are a mixed bag Fourth Amendment supported cutting back the exclusionary rule; believed in a right to privacy Liked guns Hated the EPA Death of Justice Scalia Scalia Jurisprudence His idiosyncrasies Conservative on social issues Did not like race-conscious decision-making Fisher Fine with capital punishment Would have overturned Roe v. Wade Free speech complex views; most hostile to governments banning speech because of disagreement with the message Congressional Research Service Justice Antonin Scalia: His Jurisprudence and His Impact on the Court 2

3 Who is Merrick Garland? Who is Merrick Garland? He is seen as: Moderate, uncontroversial (left of Kennedy; right of Breyer) No overall judicial philosophy Anti-gun inaccurate Pro-prosecution rarely ruled in favor of criminal defendants Pro-labor Pro-agency deference (i.e. environmental regulation) (not perceived as unapologetically proenvironment) Broad view on First Amendment Limited record on social issues (death penalty, abortion) Rarely reviewed by SCOTUS; Justices tend to agree with him Rarely dissents We may know less about him than we think Takings, abortion, capitol punishment, etc. Judge Garland What is Likely Next? Congressional Research Service Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court Trump presidency No Garland Clinton presidency Will she ask Obama to pull the Garland nomination? Might depend on whether the Senate becomes a Democrat majority Sen. Grassley If Hillary wins the Senate might hold hearings in the lame duck 3

4 Trump List of Potential Nominees End of the Kennedy Court Totally unorthodox Done to illustrate his conservative credentials 11 people; 5 state supreme courts; rest are federal courts of appeals All judges; no Paul Clement All white; 8 are men All conservatives; no consensus candidates Most interesting: Don Willett s tweet Most controversial: William Pryor Unless Donald Trump wins! Before Kennedy it was O Connor also a moderate/conservative One of the most powerful people in American during the last decade? Shaped the law in a way no one else could because of his position as the swing Justice End of the Kennedy Court Not So Fast Last two terms have been the most liberal since the 1960s Let s assume Justice Kennedy has become more liberal; Why? Justices tend to become more liberal as they age Legacy He wants to do things Lots of cases even recent ones highlight Kennedy s more conservative views Shelby County Glossip First ACA case Overall record will be conservative Keen sense of the country s pulse on social issues 4

5 Unfinished Business 7-2 Liberal Court Lengthy solitary confinement Overturn Quill Corp. v. North Dakota which prohibits states from forcing retailers with no in-state physical presence to collect and remit state sales taxes Justice Kennedy s concurrence I/we were wrong in Quill Please bring us a case allowing us to reconsider Quill Cites information from the SLLC s brief Two states have cases in the lower court Based on age alone Justices Ginsburg, Breyer, and Kennedy could easily leave the Court in the next four years Justice Thomas retirement rumors If Hillary appoint Scalia s replacement it will be the first time since about 1970 that 5 Justices have been appointed by a Democrat Most certain change: different cases will be brought 7-2 Liberal Court What Do States Want in a Justice? Big three: are they safe? Citizen s United Heller Death penalty What areas of the law would be expanded? SCOTUSblog symposium on the future of the Court A conservative or moderate maybe better on federalism and preemption but not social issues State experience Public service before getting on the bench Pragmatist Values experimentation and no on-size-fits-all Send us someone smart 5

6 Last Term Term Statistics Six arguably seven big cases; only one had no impact on the states 70 cases argued (typical) Highest agreement Justices Kagan and Kennedy; lowest agreement Justices Ginsburg and Thomas 48% of cases were 9-0 (typical) Only 4 cases this term were 5-4 (20% typical) Impact of the Vacancy on the Court What To Talk About? Docket was already set for last term when Justice Scalia died Court could not just avoid taking controversial cases Four 4-4 case; two received no media attention at all Big cases Lots of them; you might already know all about them? Likely to affect state legislation Not as many as usual? Bread and butter 6

7 Not Talking About Big Cases Death penalty Lots; mostly state specific A few just came up in the death penalty context Redistricting None were as big as they could have been Evenwel v. Abbott Evenwel v. Abbott Biggest case for state legislatures Could have been much bigger Stanford Daily: In With a Bang, Out with a Whisper Holding: States may apportion state legislative districts based on total population In Reynold v. Sims (1964) the Court established the principle of one-person, onevote, requiring state legislative districts to be apportioned equally so that votes would have equal weight What population is relevant? Total population or voter-eligible population Total population includes numerous people who cannot vote notably non-citizens and children The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent 7

8 Evenwel v. Abbott Evenwel v. Abbott Most people considered the law in this area settled Over the span of decades the Court had denied cert on this issue repeatedly Rationale focused on constitutional history, this Court s decisions, and longstanding practice Section 2 of the 14 th Amendment explicitly requires that the U.S House of Representatives be apportioned based on total population In no previous cases alleging a state or local government failed to comply with oneperson, one-vote had the Court determined if a deviation was permissible based on eligible- or registered-voter data State and local governments redistricting based on total population is a settled practice Evenwel v. Abbott Whole Women s Health v. Hellerstedt Unanimous Written by Justice Ginsburg Tribute to Justice Scalia? Formalistic opinion, but did pragmatism carry the day? Court did not decide whether states may redistrict using voter-eligible population Weren t the votes to hold that states must only use total population Texas s admitting privileges and ambulatory surgical center requirements create an unconstitutional undue burden on women seeking abortions 5-3 ruling Breyer writes Kennedy is in the majority Justice Scalia s vote would not have mattered 8

9 Whole Women s Health v. Hellerstedt Whole Women s Health v. Hellerstedt Admitting privileged what s the problem? No patients Religious grounds Ambulatory surgical center (ASC) what s the problem? Money Texas argued these two requirements would protect the health of women who experience complications from abortions Court in Planned Parenthood v. Casey said great, but [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right Whole Women s Health v. Hellerstedt Whole Women s Health v. Hellerstedt Fifth Circuit in trouble Before analyzing the benefits and burdens of these laws, Justice Breyer, writing for the majority, criticized the Fifth Circuit, which ruled in favor of Texas, for: Implying that the existence or nonexistence of medical benefits need not be considered in the undue burden analysis Applying less strict review than required Saying that it is the role of state legislatures, not the courts, to resolve medical uncertainty Admitting privileges No benefits: very few women who receive abortions need to be hospitalized Substantial burden: about half of Texas s clinics closed as a result These closures meant the number of women of reproductive age living in a county... more than 150 miles from a provider increased from approximately 86,000 to 400, and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000 9

10 Whole Women s Health v. Hellerstedt Whole Women s Health v. Hellerstedt ACS: No benefits: For those who have abortions via medication complications almost always arise only after the patient has left the facility Texas does not require much riskier procedures like child birth and colonoscopies be performed in an ASC Substantial burden: further reduced the number of abortion clinics (initially about 40) to seven or eight Common sense suggests the remaining clinics will not be able to keep up with demand All ACS and admitting privileges requirements are in trouble Any requirement that closes a lot (how many?) of clinics is in trouble Courts will (should) dismiss sham justifications; will different rationales emerge? Even if a state interest is furthered by regulation, the interest must be weighed against the burden What about the other new abortion laws (300 in the last 5 years)? Particularly those that won t close as many clinics as admitting privileges and ACS requirements? Friedrichs v. California Teacher Association Friedrichs v. California Teacher Association 4-4 (Was) one of the biggest cases of the term generally and for state and local government Outcome was practically inevitable Justice Scalia s death changed everything About half the states are right to work If employees don t want to join the union they don t have to and don t have to pay a dime In agency fee / fair share states if employee don t join the union, they still have to pay their fair share of collective bargaining costs Friedrichs could have made all states right to work for public sector employees 10

11 Friedrichs v. California Teacher Association Friedrichs v. California Teacher Association Constitutionality of fair share established in 1977 in Abood v. Detroit Board of Education No free riders are allowed! Recently, Justice Kennedy and Scalia joined two 5-4 decisions critical of Abood Before Justice Scalia died, it seemed very likely that the Court would have overturned Abood Court issued a 4-4 opinion affirming the lower court s refusal to overrule Abood Public sectors unions can (and do) exist without fair share Symbolic and practical importance of fair share Cornerstone of public sector collective bargaining Guarantees significant funding Could have been the Citizens United of collective bargaining Rehearing denied Will this issue come up again? Fisher v. University of Texas at Austin Fisher v. University of Texas at Austin 4-3 win for affirmative action (Justice Kagan didn t participate) Ironically this probably would have been a 4-4 case had Justice Scalia lived What did the Court say? What is the significance of the case? Other 4-4 cases don t matter the issues can go back to the Court Per Texas s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class Other students are admitted based on a combination of their grades and test scores and personal achievement index Race is considered as one factor in one of the two components of an applicant s personal achievement index 11

12 Fisher v. University of Texas at Austin Fisher v. University of Texas at Austin Strict scrutiny applies to the use of race in college admissions Diversity is a compelling interest in the education context In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin s admissions policy, should not have deferred to UT Austin s argument that its use of race is narrowly tailored Fisher essentially argued that the Top Ten Percent Plan created enough diversity Justice Kennedy rejects Fisher s four arguments that UT Austin s admissions policy isn t narrowly tailored Critical mass isn t a number Critical mass wasn t achieved when race wasn t a factor (between 1996 and 2002, when race wasn t a factor in admissions, minority enrollment stagnated) Race had more than a minimal impact on minority enrollment (between 2003 and 2007, when race was considered, Hispanic and African-American enrollment increased 54 percent and 94 percent respectively) UT Austin tried numerous race-neutral means of achieving more diversity and they failed Fisher v. University of Texas at Austin Fisher v. University of Texas at Austin Big/symbolic significance of the case First win for affirmative action in education since Grutter v. Bollinger (2003) Remember the 25 year predication? Written by Justice Kennedy Did not join the majority in Grutter Embraces Grutter enthusiastically Apology, lecture, and a warning Is this what a more liberal Supreme Court looks like? Court done with affirmative action in higher ed cases? Smaller/practical significance of the case Does this case make it easier for universities to figure out how to devise constitutional race-conscious admissions plans? No other state has a top ten percent law Other concepts in the case are of universal concern (critical mass, race neutral means to increase diversity) Justice Kennedy envisions a world of constant analysis and data-driven decision-making 12

13 United States v. Texas United States v. Texas 4-4 Does the President s deferred action immigration program violate federal law? The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents, to lawfully stay and work temporarily in the United States About 5 million people are affected Twenty-six states sued the United States United States v. Texas United States v. Texas Fifth Circuit said yes; granted Texas a (national) preliminary injunction As a result, the Fifth Circuit s nationwide temporary stay of the program remains in effect Biggest issue for states: standing The United States argued that the states lack standing to challenge DAPA The Fifth Circuit disagreed, reasoning that the cost of issuing drivers licenses to DAPA program participants is a particular harm states face At least 4 Justices voted Texas had standing Including Justice Roberts? 13

14 United States v. Texas United States v. Texas APA issues Notice-and-comment Arbitrary and capricious Constitutional issue Take Care Clause which states that the President shall take Care that the Laws be faithfully executed What s next? United States petitioned for rehearing when the Court has 9 Justices Trial to determine permanent injunction Challenges in other jurisdictions saying they were harmed by the ruling McDonnell v. United States McDonnell v. United States Straddles the big case category and likely to lead to state legislation category Definition of bribery under federal law Unanimous win for McDonnell Setting up meetings, calling other public officials, and hosting events do not alone qualify as official acts While in office McDonnell accepted more than $175,000 in loans, gifts, and other benefits from Jonnie Williams Williams wanted a Virginia state university to test a dietary supplement, Anatabloc, his company, Star Scientific, had developed Federal bribery statutes make it a crime for public officials to receive or accept anything of value in exchange for being influenced in the performance of any official act 14

15 McDonnell v. United States McDonnell v. United States The federal government claimed McDonnell committed at least five official acts McDonnell argued that these acts which didn t direct[] a particular resolution of a specific governmental decision or pressure another government official to act, in and of themselves, aren t official acts An official act is defined as any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official s official capacity, or in such official s place of trust or profit Merely setting up a meeting, hosting an event, or calling another official does not qualify as a decision or action on any of these questions or matters: Simply expressing support for the research study at a meeting, event, or call or sending a subordinate to such a meeting, event, or call similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an official act. Otherwise, if every action somehow related to the research study were an official act, the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless. McDonnell v. United States McDonnell v. United States The lower court was supposed to decide whether against McDonnell should be dismissed based on its new definition of official acts or whether McDonnell should receive a new trial DOJ dropped the charged Big picture thoughts on this case Court was thinking about campaign contributions as the quid Exert pressure is an interesting standard Too much prosecutorial discretion under old federal statutes Why wasn t this case tried based on state bribery/corruption/gifts laws? Will states tighten up state bribery/corruption/gifts statutes? Is state law tougher than intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an official act? 15

16 Change State Law Cases Montgomery v. Louisiana Juvenile offenders sentenced to life in prison without parole before Miller v. Alabama (2012) was decided may have their sentences reviewed Miller v. Alabama the Court held that a juvenile may not be sentenced to life in prison without parole absent consideration of the juvenile s special circumstances in light of the principles and purposes of juvenile sentencing Rather than relitigating sentences, states may allow relevant juvenile offenders to be eligible for parole Montgomery v. Louisiana Montgomery v. Louisiana Per Teague v. Lane (1989) new substantive rules of constitutional law (as opposed to procedural rules) apply retroactively Substantive rules prohibit a certain category of punishment for a class of defendants to be applied for certain offenses Some juveniles could still be sentenced to life in prison without parole but the vast majority cannot following Miller Only the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility will be sentenced to life in prison without parole So Miller s rule was substantive 6-3 decision written by Justice Kennedy About 2,000 people currently serving life sentences without parole committed their crimes as juveniles Justices Scalia writes: And then, in Godfather fashion, the majority makes state legislatures an offer they can t refuse: Avoid all the utterly impossible nonsense we have prescribed [trying to figure out who was permanently incorrigible at the time they committed their crime] by simply permitting juvenile homicide offenders to be considered for parole. Mission accomplished. 16

17 Montgomery v. Louisiana Birchfield v. North Dakota Is Justice Scalia right? Will all state legislatures rely on the parole process or will some come up with a process to relitigate sentences outside of the parole process and come up with criteria for whose sentence gets reduced? New Colorado law requires resentencing States may criminalize an arrestee s refusal to take a warrantless breath test If states criminalize the refusal to take a blood test, police must obtain a warrant 5-3 SLLC filed an amicus brief Birchfield v. North Dakota Birchfield v. North Dakota States began criminalizing the refusal to consent to blood alcohol concentration (BAC) testing because the penalty for refusal is low typically driver s license revocation or suspension National Highway Traffic Safety Administration research indicates about 20 percent of people arrested for drunken driving refuse to submit to a BAC test Court applied search-incident-to-arrest exception to the warrant requirement A motorist is only required to submit to a BAC test after being arrested for drunken driving Police officers are allowed to search an arrestee s person, without first obtaining a warrant, to protect officer safety or evidence Court weighed the degree to which the search intrudes upon an individual s privacy with the need to promote legitimate government interests 17

18 Birchfield v. North Dakota Birchfield v. North Dakota The privacy intrusion of breath tests was minimal but the privacy intrusion of blood tests was not [W]hile humans exhale air from their lungs many times per minute, humans do not continually shed blood For this reason the Court concluded if states criminalize the refusal to take a blood test, police must obtain a warrant Court noted that blood tests have some advantages (they can detect drugs, and not just alcohol, and they require less driver participation) 15 states currently criminalize the refusal to consent I doubt any states require a warrant I don t think a warrant requirement has to be included in the statute for blood tests (but police must get a warrant if they want to compel a blood test) If more states want to criminalize the refusal to consent, now is the time Gobeille v. Liberty Mutual Insurance Company Gobeille v. Liberty Mutual Insurance Company All-payers claims database (APCD) laws are preempted by Employee Retirement Income Security Act (ERISA) 6-3 decision 18 states have APCD laws SLLC filed an amicus brief arguing for the opposite result Justice Ginsburg cited the SLLC brief three times in her dissenting opinion! APCD law requires health insurers to report to the state information related to health care costs, prices, quality, and utilization, among other things ERISA preempts Vermont s APCD law to prevent States from imposing novel, inconsistent, and burdensome reporting requirements on plans Reporting, disclosure, and recordkeeping are central to ERISA, which requires health insurance plans to submit an annual financial statement to the Department of Labor Per, Justice Ginsburg APCD laws: serve compelling interests, including identification of reforms effective to drive down health care costs, evaluation of relative utility of different treatment options, and detection of instances of discrimination in the provision of care 18

19 Gobeille v. Liberty Mutual Insurance Company Gobeille v. Liberty Mutual Insurance Company Examples from the brief of how the data is used: One Miami hospital charged $127,038 to implant a pacemaker, while a hospital down the street charged only $66,030 When a six-year-old girl cut her eyebrow and needed stitches, the girl s mother was able to compare emergency room costs for that procedure on the NH HealthCost website. She used the data to save $500 by driving to a hospital 20 minutes further than the one closest to her home. Secretary of Labor could require this data collection Supreme Court doesn t get it v. Supreme Court doesn t care Bread and Butter Case Heffernan v. City of Paterson, New Jersey Issue: May a government employer s mistaken belief that an employee exercised his or her First Amendment rights be the basis for a First Amendment retaliation lawsuit? Supreme Court yes:

20 Heffernan v. City of Paterson, New Jersey Heffernan v. City of Paterson, New Jersey You can t make this stuff up: Police officer works in police chief s inner circle Police officer picks up campaign sign for mayor s opponent Gets caught talking to opponent s campaign manager Gets removed from inner circle Sign not for himself for bedridden mother! First Amendment generally protects public employees who support political candidates Officer Heffernan s position I wasn t supporting a political candidate; I was merely wrongly perceived as doing so Heffernan v. City of Paterson, New Jersey Heffernan v. City of Paterson, New Jersey The question in this case is whether the First Amendment right focuses upon the employee s motive or the supervisor s motive Court: supervisor s motive Supervisor s motive here was to violate the First Amendment Waters v. Churchill (1994) The employer mistakenly believed the employee engaged in personal gossip rather than protected speech on a matter of public concern The Court upheld the employee s dismissal focusing on the employer s motive In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? 20

21 Heffernan v. City of Paterson, New Jersey Heffernan v. City of Paterson, New Jersey Thomas and Alito (dissent) Public employees have no remedy against public employers who attempt but fail to violate employees constitutional rights Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional. View of Paterson attorney before oral argument Doctrinally I win I could win against nine computers Bad facts make bad law? This issue could never have come to the Court with good facts Case is narrow Don t let this case keep you up at night Post-Ferguson Cases Qualified Immunity Unfair title Not sure we are there yet None of the cases actually come from Ferguson (or any of the related incidents) Come from the bread and butter category: Fourth Amendment and qualified immunity State and local government officials can be sued for money damages in their individual capacity if they violate a person s constitutional rights Qualified immunity protects government officials from lawsuits where the law they violated isn t clearly established Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law Law is very favorable to state and local governments 21

22 Mullenix v. Luna Mullenix v. Luna You can t make this stuff up Leija led officers on an 18-minute chase at speeds between 85 and 110 miles an hour Called police twice saying he had a gun and would shoot police officers if they did not abandon their pursuit While officers set up spike strips under an overpass, Officer Mullenix asked his supervisor via dispatch if he thought shooting at Leija s car to disable it was worth doing His supervisor told Mullenix to wait to see if the spike strips worked (Court assumed Mullenix heard his supervisor) Mullenix learned an officer was in harm s way from Leija beneath the overpass Mullenix shot at Leija s vehicle six times, killing him but not disabling his vehicle Supreme Court sits on the case for months Issues a per curium (unauthored) opinion in favor of the officer Mullenix v. Luna Mullenix v. Luna The Fifth Circuit denied qualified immunity Police officers may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officers or others SCOTUS: too general of an inquiry In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances beyond debate. Sotomayor dissent No training No supervisor approval Spike strips seconds later 22

23 Mullenix v. Luna Utah v. Streiff Legally interesting Qualified immunity question should be narrow and fact-driven (nothing new here) Culturally interesting Made the news Post-Ferguson SCOTUS isn t loosening up qualified immunity? Does this case represent the outer limit on qualified immunity? IMLA didn t file an amicus brief Officer ignored his supervisor A police officer stopped Edward Streiff after he left a suspected drug house The officer discovered Streiff had an outstanding warrant, searched him (legally), and discovered he was carrying illegal drugs The Supreme Court held 5-3 that even though the initial stop was illegal, the drug evidence could be admissible against Streiff in a trial Exclusionary Rule Utah v. Streiff When police gain evidence through unconstitutional searches, that evidence is generally inadmissible in trial per the exclusionary rule The attenuation doctrine is an exception to the exclusionary rule Per that doctrine [e]vidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance Issue: even though the stop was illegal, could evidence gained during the stop be admitted because something attenuating happened in the middle of the stop (discovering the warrant) Court said yes Warrant was an intervening factor in this case because it was valid, it predated the stop, and it was entirely unconnected to the stop 23

24 Utah v. Streiff Utah v. Streiff Justice Sotomayor's dissent Police will (and already do) stop people for the sole purpose of running a warrant check and get away with it as long as they can, after the fact, point to a (minor, unrelated, or ambiguous) infraction Do not be soothed by the opinion s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. In Ferguson, Missouri (16,000 warrants out of 21,000 people) Justice Thomas responds No evidence of dragnets searches If there was attenuation doctrine might not apply And police could be sued civilly Guns, Guns, and MORE Guns Quick Overview In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment provides individuals the right to possess a firearm to use for lawful purposes, including for self-defense in the home In McDonald v. Chicago (2010), the Court held that the Second Amendment right of individuals to keep and bear arms in self-defense is incorporated through the Fourteenth Amendment to apply against state and local government 24

25 Two Big Questions Caetano v. Massachusetts Is there an individual right to bear arms outside the home? May particular guns be banned? Supreme Judicial Court of Massachusetts held Massachusetts s stun gun ban is constitutional Per curiam (unauthored) opinion (which concurring Justices Alito and Thomas call grudging ) asks them to look at this issue again Eight states ban stun guns Caetano v. Massachusetts Preview Supreme Judicial Court of Massachusetts Stun guns because they weren t in common use at the time the Second Amendment was enacted They are unusual as a thoroughly modern invention They aren t readily adaptable for use in the military Why send the case back? 25

26 Petitions Granted So Far Petitions Granted So Far About 30 (typical at this time) Nothing really juicy (fairly typical) 2 redistricting cases 5-6 issues each; hard to know what the Court will focus on Death penalty case Texas relies on a 1992 definition of intellectual disabled from the American Association on Mental Retardation adopted in a 2004 case Blames the state legislature for not adopting a definition No brainer? Trinity Lutheran Church v. Pauley Trinity Lutheran Church v. Pauley Most controversial/interesting case accepted to date Accepted before Justice Scalia died Issue: whether Missouri can refuse to allow a religious preschool to receive a state grant to resurface its playground based on Missouri s super- Establishment Clause Less technically: whether religious organizations be excluded from generally available public benefit programs based on state law The Missouri Department of Natural Resources offers grants to qualifying organizations to purchase recycled tires to resurface playgrounds The DNR refused to give a grant to Trinity Church s preschool because Missouri s constitution prohibits providing state aid directly or indirectly to churches The majority of the state constitutions contain Blaine Amendments or super- Establishment Clauses whose prohibitions against aid to churches and religious schools exceed the requirements of the federal Establishment Clause Trinity Church argues that excluding it from an otherwise neutral and secular aid program violates the federal constitution s Free Exercise and Equal Protection Clauses, which Missouri s Blaine Amendment may not trump 26

27 Trinity Lutheran Church v. Pauley Trinity Lutheran Church v. Pauley In Locke v. Davey (2004) the Supreme Court upheld Washington State legislature s decision to prohibit post-secondary students from using public scholarships to receive a degree in theology, based on its super-establishment Clause The Supreme Court must decide whether to apply Locke v. Davey narrowly or broadly in this case Justice Scalia foresaw this dilemma in his dissent in Locke noting that its holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go Trinity Church argues the Court should read Locke narrowly and that [t]his case is as far from Locke as one can conceive. Trinity Lutheran sought to participate in a generally available public benefit program that provides recycled rubber flooring to protect children from cuts and bruises on the playground. Locke rejected a free exercise challenge to compel a state to fund the religious training of clergy. Trinity Lutheran Church v. Pauley Pena-Rodriguez v. Colorado There is no state brief defending their Blaine Amendment At least half the states with Blaine Amendments have joined an amicus brief supporting Trinity Lutheran Church No legislation at issue in this case but Your state may have passed legislation you believed was okay because of the state s Blaine Amendment Could upset 50 states rules of evidence 27

28 Pena-Rodriguez v. Colorado Pena-Rodriguez v. Colorado Juror made a number of racist statements during deliberations No-impeachment rules prevents jurors from testifying after a verdict about what happened during deliberations (with limited exceptions that do not include that a juror expressed racial bias) Does Colorado s no-impeachment rule violates the Sixth Amendment right to be tried by an impartial jury? In two previous cases the Supreme Court ruled that the federal no-impeachment rule wasn t unconstitutional Admission of evidence that the jury was one big party where numerous jurors used drugs and alcohol (Tanner v. United States, 1987) Juror in a car-crash case said in deliberations that her daughter caused a car accident and had she been sued it would have ruined her life (Warger v. Shauers, 2014) According to the Colorado Supreme Court these two cases stand for a simple but crucial principle: Protecting the secrecy of the jury deliberations is of paramount importance in our justice system Murr v. Wisconsin Murr v. Wisconsin Court agreed to hear this case before Justice Scalia died Whether merger provisions in state law and local ordinances may result in unconstitutional taking of property What are merger provisions? Nonconforming, adjacent lots under common ownership are combined for zoning purposes The Murrs owned contiguous lots E and F which together are.98 acres Lot F contained a cabin and lot E was undeveloped A St. Croix County merger ordinance prohibits the individual development or sale of adjacent lots under common ownership that are less than one acre total But the ordinance treats commonly owned adjacent lots of less than an acre as a single, buildable lot The Murrs sought and were denied a variance to separately use or sell lots E and F 28

29 Murr v. Wisconsin Murr v. Wisconsin The Wisconsin Court of Appeals found no taking Murrs property retained significant value despite being merged; a year-round residence could be located on lot E or F or could straddle both lots SLLC filed an amicus brief arguing (among other things) that merger provisions are common These states have merger statutes: California Massachusetts Minnesota New Hampshire New Mexico Rhode Island Vermont Some states allow merger in case law Petitions Denied with Otherwise Would have been Granted It is hard to say It takes 4 judges to grant cert; you never know who votes in favor and against Often petitions for the controversial issues don t come up until the fall Denied a bunch of gun petitions; no cert split Bible v. United Student Aid Funds Per Auer deference courts must defer to agency interpretations of their own regulations Justice Scalia was the modern author of Auer deference (1997) In 2015 he said he was willing to overrule it SLLC file an amicus brief in a cert petition asking the Court to overturn Auer deference days before Justice Scalia died Cert denied was no surprise Issue comes up in the transgender student case Another petition already filed 29

30 Top Three Interesting Petitions Not Yet Granted Most interesting has no impact on the states NCAA ametuerism requirement violates the Sherman Act Other three might: Whether Colorado s public accommodations law, which required a cake maker to make a cake for a same-sex couple s wedding, violates the First Amendment NC sex offender registry prohibits sex offenders from access websites including Facebook, YouTube, and nytimes.com if the site is know[n] to allow minors to have accounts; Petitioner was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring God is Good! G.G. v. Gloucester County School Board G.G. is biologically female but identifies as a boy and wants to use the boy s bathroom Fourth Circuit using Auer deference deferred to the DOE s definition of sex under Title IX which includes gender identity Federal district court said G.G. could use the boy s bathroom while litigation was proceeding Five Justices (including Breyer as a courtesy) voted to block the lower court s order Looking Further Into the Future Clean Power Plan No petitions yet (but there will be) President Obama s signature climate change measure In one sentence Intended to transform our existing energy production from coal to natural gas to renewable energy According to the EPA: When the Clean Power Plan is fully in place in 2030, carbon pollution from the power sector will be 32 percent below 2005 levels. 30

31 CPP Stay CPP Stay As soon as the regulations were final twenty-seven states and others sued The week Justice Scalia died the Supreme Court has issued a stay preventing the Clean Power Plan regulations from going into effect Totally surprising and totally unprecedented Court had never stayed regulations All nine Justices voted The four more liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) voted against the stay CPP Stay Nine Legal Issues Stay (and the significance of the issue) indicate the Supreme Court will ultimately rule The votes of the Justice on the stay are possible (likely?) indicators of how the Justices would ultimately vote Most interesting argument Is generation shifting permissible? No clear statement in the Clean Air Act compelling the Clean Power Plan Transformative expansion in EPA s regulatory authority based on a long-extant statute requires clear congressional authorization UARG v. EPA (2014) Could EPA just zero out use of fossil fuels? States have traditionally had authority over intrastate energy generation no intrusion without a clear statement 31

32 Oral Argument Views of the New Justice will Matter Entire DC Circuit heard argument on September 27 Two of 11 judges are recused Why was the argument moved? Why will the entire court hear the case? Timing of the opinion is critical for Supreme Court review Unless the case DC Circuit decides the case by early November it will not be decided by the Supreme Court until the term after next (as late as June 2018) Stay indicates Justices Scalia and Kennedy may/will not (have supported) the CPP If the new Justice is liberal/pro-environment/pro-agency/pro-federal government the CPP may survive We could have more than one new Justice by June 2018 Waters of the US Litigation Waters of the US Litigation Last spring EPA issued final rules defining Waters of the United States under the Clean Water Act Two issues Are these regulations legal Who gets to decide federal district court or federal court of appeals? Who gets to decide? Court of Appeals reviews decisions affecting any effluent limitation or other limitation and permit denials Sixth Circuit says Courts of Appeals get to decide Judge McKeague noted that the WOTUS rule is definitional; it doesn t directly impose discharge limits or directly cause permits to be issued or denied. Nevertheless, he concluded that the Sixth Circuit has jurisdiction reasoning that [o]ver the last 35 years... courts, including the Supreme Court and the Sixth Circuit, have favored a functional approach over a formalistic one in construing these provisions. Eleventh Circuit will also decide this issue 11 th Circuit precedent indicates court of appeals does not have jurisdiction? 32

33 Waters of the US Litigation NC Voter ID Are the regulations legal? Sixth Circuit issued a nationwide stay indicating they are likely problematic Why is it likely EPA has exceeded its authority? Tributaries, adjacent waters, and waters having a significant nexus Why is it likely that EPA failed to follow notice-and-comment? Proposed regs did not include any proposed distance limitations in its use of terms like adjacent waters and significant nexus No scientific support for this Waiting for 6 th Circuit to decide case on merits Lots of states are asking the Court get involved in voting law disputes in the lower courts Fourth Circuit blocked NC s voter ID law and refused to put its decision on hold The North Carolina law would require voters to show a government-issued photo ID, reduce the number of days for early voting, and eliminate same-day voter registration and out-of-precinct voting Smoking gun of racial discrimination State appealed arguing basically we have an election coming up we can t change the rules Supreme Court refused to enforce state law Keeping in Touch with the SLLC Website: Twitter: (lsoronen@sso.org) or call me (202)