Supreme Court Review & Preview. Lisa Soronen State and Local Legal Center

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1 Supreme Court Review & Preview Lisa Soronen State and Local Legal Center

2 Overview of Presentation Impact of Justice Gorsuch and President Trump on the Supreme Court Cases recently decided Involving state statutes Of interest to states generally Cases of interest accepted for next term Possible future cases of interest

3 Who is Justice Gorsuch? Tenth Circuit Court of Appeals judge (10 years on the bench) 49 years old Harvard Law graduate Son of the first female head of the EPA Episcopalian/Catholic Justice Kennedy clerk

4 We Should Have Known More about Him Before April Authored over 800 hundred opinions; and participated in approximately 2,750 decisions No rulings on the some of the most prominent issues: gun control and abortion Most well known for his ruling regarding the birth control mandate, frozen trucker, and burping student

5 Amazing what We Learned About Him in Just One Day Only participated in 13 cases, only one of which was controversial Weighed into guns, same-sex marriage, and the travel ban

6 What We Know about Him Now Aligned himself with the most conservative Justices Thomas and Alito rather than Roberts and Kennedy Described as a conservative activist No shrinking violet

7 Travel Ban, Guns, Same-sex Marriage Travel ban Would have allowed the travel ban to go into effect completely before the Court could rule on the merits Same-sex marriage Nothing in Obergefell indicates that a birth registration regime based on biology is unconstitutional Guns Court should have reviewed CA conceal carry law

8 Other Things to Think about Might be more conservative than Scalia How much does he value pragmatism? How does he feel about precedent? Does he want to build consensus with colleagues? Views on Chevron deference will be very important in the future

9 For States Expect Justice Gorsuch to Be Good Qualified immunity Employment Bad Land use Free speech* Closing the courthouse door Federalism and preemption*

10 Justice Gorsuch is a Coup I am biased and think President Trump s biggest accomplishment to date was getting Justice Gorsuch on the Court Impeccable credentials, young, has already proven to be reliable conservative Not a reflection of any of Trumps idiosyncrasies

11 SCOTUS Justices Conservative Chief Justice Roberts Kennedy* Thomas Alito Liberal Ginsburg Breyer Sotomayor Kagan Gorsuch

12 Lot of Talk of Justice Kennedy Retiring Why does this matter so much? Court we have right now is, in the big cases, a 5-4 conservative Court with Justice Kennedy in the middle Recently Justice Kennedy has reliably voted with the liberals on social issues If Trump replaces Kennedy, Chief Justice Roberts will be the swing Justice and the Chief Justice

13 How Seriously Should We take These Rumors? Nina Totenberg reports he hasn t hired clerks for October 2018 and is telling applicants he is considering retirement Democrats need Justice Kennedy to hang on until 2020 because Democrats are unlikely to take control of the Senate in 2018 Average retirement age for Supreme Court Justices is 79; Justice Kennedy is 80 Oldest Justices are liberals and Justice Kennedy Justice Ginsburg (84) Justice Breyer (78)

14 Go Back in Time One Year Here were the predictions Hillary was going to win She would fill Scalia s seat with Judge Garland or someone younger and more liberal She might replace Ginsburg, Kennedy, and Breyer In 8 years we might have a young, liberal 7-2 Court

15 Overall Observations about the Term Court was very conscious about having only eight Justices No real high interest cases transgender bathroom case sent back to 4 th Circuit Lots of early, unanimous or 7-1 opinions (Thomas, dissenting) about 10 pages long Court has accepted lots of cases where generally they have significant agreement Qualified immunity/police First Amendment free speech

16 One Offs Moore v. Texas: SCOTUS rejects a Texas court s reliance on a 1992 definition of intellectual disability and the use of a number of factors as indicators of intellectual disability which the Court described an invention untied to any acknowledged source (Tennessee and Pennsylvania court cited TX decision) Nelson v. Colorado: SCOTUS struck down a Colorado law requiring defendants whose criminal convictions have been invalidated to prove their innocence by clear and convincing evidence in order to receive a refund of fees, court costs, and restitution (no circuit split)

17 Pena-Rodriguez v. Colorado Requires many states to rewrite a law No-impeachment rules prevent jurors from testifying after a verdict about what happened during deliberations with limited exceptions Holding: the Constitution requires an exception to the no-impeachment rule when a juror s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt 5-3 decision written by Justice Kennedy

18 Pena-Rodriguez v. Colorado Why have a no-impeachment rule? Decrease the chances of juror being harassed post-verdict and to encourage jurors to engage in searching and candid deliberations A jury found Miguel Angel Pena-Rodriguez guilty of unlawful sexual contact and harassment involving two teenage sisters Subsequent to conviction, two jurors alleged that another juror made numerous statements during deliberations indicating he believed Pena- Rodriguez was guilty because he is Mexican

19 Pena-Rodriguez v. Colorado The Supreme Court has refused to recognize exceptions to the no-impeachment rule in two cases Racial bias is different given our Nation s history An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy Bar is high: offhand comments aren t enough, statements exhibiting overt racial bias [must] cast serious doubt on the fairness and impartiality of the jury s deliberations and resulting verdict, and the statements must tend to show that racial animus was a significant motivating factor in the juror s vote to convict

20 States that Already Consider Race Statutory Arizona Idaho Minnesota Montana* North Dakota* Tennessee Vermont Tennessee Judicial Connecticut District of Columbia Delaware Florida Georgia Massachusetts New York Rhode Island South Carolina Washington Wisconsin

21 First Amendment Free Speech Court has decided three First Amendment free speech cases Million dollar question: in any of these cases would the Supreme Court expound upon Reed (i.e. discuss whether speech is content-based or contentneutral) Content-based distinctions in sign codes (and generally) are subject to strict (fatal) scrutiny Content-based is defined very broadly Answer: no

22 Matal v. Tam State and local governments had a lot of luck with the government speech doctrine as of late Summum v. Pleasant Grove City (2009) Walker v. Texas (2015) Lee v. Tam represents the end of the line for that winning spree Justice Alito: Walker likely marks the outer bounds of the governmentspeech doctrine

23 Matal v. Tam Issue: whether Section 2(a) of the Lanham Act, which bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks, violates the First Amendment? Holding: Yes, unanimous Not narrowly drawn to drive out trademarks that support invidious discrimination Government made a government speech and a government subsidy argument

24 Matal v. Tam If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently None of the factors present in Walker are present in this case license plates have long been used to convey state messages are closely identified with the state as they are manufactured, owned, and generally designed by the state Texas directly controlled the messages conveyed on specialty plates

25 Matal v. Tam The Supreme Court has upheld the constitutionality of government programs that subsidize speech expressing a particular viewpoint (like federal grants to artists or libraries) Federal registration of trademarks is nothing like these programs PTO charges people to register marks; it does not pay people seeking mark registration

26 Matal v. Tam Plot thickens Badly split decision among 8 Justices Four Justices (Kennedy, Ginsburg, Sotomayor, Kagan) take position that this law constitutes viewpoint discrimination (an applicant may register a positive or benign mark but not a derogatory one) Which decision is the narrowest? State trademark laws have similar language Adam Liptak: Justices like more speech but don t know why

27 Packingham v. North Carolina Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed

28 Packingham v. North Carolina JUSTICE KAGAN: So -- so a -- so a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today? MR. MONTGOMERY: That -- that's correct, Your Honor. JUSTICE KAGAN: Not only the President. I mean, we're sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial -- crucially important channel of political communication. And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing; is that right? MR. MONTGOMERY: That's right. However, there are alternatives. Usually those congressmen also have their own web page. As far as Twitter --

29 Packingham v. North Carolina Statute was too broad By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Court had never approved a statute as broad in its reach as this one

30 Packingham v. North Carolina NC Court of Appeals dissenting judge thought the law was content-based The SLLC amicus brief argued law isn t content-based The Supreme Court assumed the statute was content-neutral and held that it is too board to withstand even less rigorous intermediate scrutiny

31 Packingham v. North Carolina Few states have adopted similar laws State legislatures shouldn t consider regulating all online activities of sex offenders a lost cause Court s opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue

32 Expressions Hair Design v. Schneiderman From 1976 to 1984 Congress prohibited vendors from passing on credit-card swipe fees (about 2-3 percent charged per transaction to merchants) to credit-card users When the law expired eleven states, including New York, passed no-surcharge laws These laws were ignored until recently because credit-card contracts with vendors prohibited vendors from imposing surcharges on credit-card customers Visa and MasterCard have dropped this requirement in their contracts pursuant to a nationwide anti-trust lawsuit

33 Expressions Hair Design v. Schneiderman Expressions Hair Design wants to say this: Haircuts $10 (3% or 30 cent surcharge added if you pay by credit card) A New York statute states that [n]o seller in any sales transaction may impose a surcharge on a [credit card] holder who elects to use a credit card in lieu of payment by cash, check, or similar means

34 Expressions Hair Design v. Schneiderman Credit-card surcharge bans regulate speech protected by the First Amendment State statute prohibiting vendors from advertising a single price and a statement that credit card customers must pay more regulates speech What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say $10, with a 3% credit card surcharge or $10, plus $0.30 for credit because both of those displays identify a single sticker price $10 that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price.

35 Expressions Hair Design v. Schneiderman The Supreme Court left it to the lower court to decide whether this statute actually violates the First Amendment and whether the statute allows merchants to use a two-sticker pricing scheme (Haircut $10 cash; $10.30 credit card) and whether that pricing scheme violates the First Amendment

36 States With Similar Laws California Colorado Connecticut Florida Kansas Maine Massachusetts Oklahoma Texas Puerto Rico

37 Murr v. Wisconsin Imagine this scenario Someone purchases two very small plots of land right next to each other The city realizes all these small lots will cause congestion, clogged sewer, etc. and adopts a minimize lot size requirement All previously purchased small lots are grandfathered in EXCEPT for land owners who have adjacent lots For zoning purposes these lots are combined The purchaser of two very small plots of land right next to each other wants to sell them separately City says no pointing to its merger ordinance

38 Murr v. Wisconsin Should the lots be viewed as a single parcel when concluding whether a taking took place? The Court applied a three-factor test which lead it to conclude that the lots should viewed as one parcel and found no taking in this case State law and local ordinance treat the property as one for a specific and legitimate purpose The physical characteristics of the property in this case indicate the parcels should be combined for purposes of takings analysis The special relationship of the lots is further shown by their combined valuation

39 Murr v. Wisconsin First takings win for states and local governments since decision Justice Kennedy cited the SLLC brief twice in his opinion: The merger provision here is... a legitimate exercise of government power, as reflected by its consistency with a long history of state and local merger regulations that originated nearly a century ago. Again citing the SLLC s brief, the Court further noted that focusing only on lot lines would frustrate municipalities ability to implement minimum lot size regulations by casting doubt on the many merger provisions that exist nationwide today.

40 Other States with Merger Statutes California Massachusetts Minnesota New Hampshire New Mexico Rhode Island Vermont

41 McWilliams v. Dunn Ake v. Oklahoma (1985): Supreme Court held that once an indigent defendant demonstrates... that his sanity at the time of the offense is to be a significant fact at trial, the State must provide the defendant with access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense Court was supposed to decide in McWilliams: whether Ake clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense

42 McWilliams v. Dunn Instead Court reiterated that Ake includes four elements: [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense McWilliams only got an examination Will states try to codify these four requirements?

43 Trinity Lutheran v. Comer Supposed to be the biggest case of the term Accepted before Justice Scalia died Justice Gorsuch participated 7-2 not 5-4 Fizzled out in part because of a footnote

44 Trinity Lutheran v. Comer Missouri violated Trinity Lutheran Church s free exercise of religion rights when it refused, on the basis of religion, to award the Church a grant to resurface its playground with recycled tires Trinity s preschool ranked fifth among 44 applicants to receive a grant from Missouri s Scrap Tire Program Missouri s Department of Natural Resources (DNR) informed the preschool it didn t receive a grant because Missouri s constitution prohibits public funds from being used directly or indirectly, in aid of any church, sect, or denomination of religion Trinity sued the DNR claiming it violated the Church s First Amendment free exercise of religion rights

45 Trinity Lutheran v. Comer As the policy expressly discriminated against otherwise eligible recipients on the basis of religion, the Court reached the unremarkable conclusion that it must be able to withstand the most exacting scrutiny It did not because the DNR offers nothing more than Missouri s policy preference for skating as far as possible from religious establishment concerns

46 Trinity Lutheran v. Comer The Court notably distinguished this case from Locke v. Davey (2004) where it upheld the constitutionality of a State of Washington scholarship program that excluded students pursuing degrees in devotional theology Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is a church.

47 Trinity Lutheran v. Comer The breadth of the Court s ruling and its applicability to other government aid programs is unclear In the third footnote of the opinion, Chief Justice Roberts joined by Justices Kennedy, Alito, and Kagan agreed that [t]his case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination. Justice Breyer, concurring, and Justices Sotomayor and Ginsburg, dissenting, presumably agree with this footnote as well Thomas and Gorsuch didn t join this footnote Sotomayor and Ginsburg wrote that the court s opinion in its entirety profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church

48 Blaine Amendments Institute For Justice

49 Endrew F. v. Douglas County School District Huge change in the law, likely to cost school districts and states a lot of money Unanimous holding: public school districts must offer students with disabilities an individual education plan (IEP) reasonably calculated to enable a child to make progress appropriate in light of the child s circumstances Court rejects Tenth Circuit s holding that an IEP must merely confer some educational benefit that is more than de minimis

50 Endrew F. v. Douglas County School District Per the federal Individuals with Disabilities Education Act (IDEA), a student with a disability receives an IEP, developed with parents and educators, which is intended to provide that student with a free and appropriate public education (FAPE) Board of Education v. Rowley (1982) the Court failed to articulate an overarching standard to evaluate the adequacy of an IEP because Amy Rowley was doing well in school But the Court did say in Rowley that an IEP must be reasonably calculated to enable a child to receive educational benefits For a child receiving instruction in the regular classroom an IEP must be reasonably calculated to enable the child to advance from grade to grade

51 Endrew F. v. Douglas County School District In Endrew F. the Court stated that if progressing smoothly through the regular curriculum isn t a reasonable prospect for a child, his IEP need not aim for grade level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance.

52 Endrew F. v. Douglas County School District The Court admitted its new standard is general but was also clear that it is markedly more demanding than the Tenth Circuit s standard This ruling will cost school district money May have to offer a more rigorous education to some special education students Parents have more bargaining power Justice Gorsuch was the author of a 2008 opinion which was the basis for the Tenth Circuit s opinion in Endrew F

53 Practice in Some States will have to Change Biggest change in law Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) First (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) Fourth (Maryland, North Carolina, South Carolina, Virginia, West Virginia) Seventh (Illinois, Indiana, Wisconsin) Eighth (Arkansas, Iowa, Minnesota, Missouri, and Nebraska) Smallest change in Third (Delaware, New Jersey, Pennsylvania, Sixth (Michigan, Ohio, Tennessee, Kentucky)

54 Cases Accepted for Next Term Travel ban Partisan gerrymandering Cake case Voter maintenance list Cell cite location Prison case Sports gambling and anticommandeering

55 Travel Ban The president s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers Froze decisions on refugee applications for 120 days Capped total refugee admissions at 50,000 for fiscal year 2017

56 Travel Ban Two courts issued injunctions preventing parts of the travel ban from going into effect Fourth Circuit: revised travel ban likely violates the Establishment Clause, noting that its text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination Ninth Circuit: revised travel ban likely exceeds the power granted to the President by Congress in the Immigration and Nationality Act

57 Travel Ban The Supreme Court concluded that until it rules on the merits of this case the executive order cannot be enforced against persons, including refugees (even if they exceed the 50,000 cap), who have a bona fide relationship with a person or entity in the United States close family, students, and workers offered employment

58 What Does the Travel Ban Decision Say About Justice Roberts vision the Court? Both sides got something (no one asked for the relief sought) Trump got what he called a big victory (in name more than anything else) Court spoke with (mostly) one voice Limited narrow ruling which banks on mootness Decision doesn t look political Roberts and Kennedy (we assume) joined with the liberals

59 Subsequent Litigation SCOTUS let stand a part of a decision by a district court judge in Hawaii that broadened the definition of close family to include grandparents and cousins of a person in the U.S. SCOTUS blocked 9 th Circuit ruling that an agreement between the federal government and a refugee resettlement agency for the agency to provide the refugees with assistance after their arrival in the United States allowed a refugee to be exempt from the travel ban

60 Lots of interesting legal issues Is the travel ban moot? Establishment Clause President s authority under the INA Legal rights of a variety of non-citizens not currently living in the US Relevance of statements of candidate and President Trump Nationwide injunctions

61 Partisan gerrymandering While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional In 2004, Justice Anthony M. Kennedy wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional under a First Amendment theory Gill v. Whitford will be the first case before the Court since Vieth explicitly arguing that partisan gerrymandering can violate the First Amendment

62 Partisan gerrymandering In the 2015 election, in Wisconsin Republican candidates received fewer than 49% of the statewide vote and won seats in more than 60% of the state s assembly districts The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process It is based on wasted votes votes in each district cast for a non-winning party s candidate By dividing the difference between the sums of each party s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap The challengers argue that efficiency gaps over 7% violate the Constitution The efficiency gap in Wisconsin was 13.3% in 2012 and 9.6% in 2014, according to the proposed standard

63 Most Partisan Gerrymandered States in US Wisconsin Florida Michigan North Carolina Ohio

64 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission Colorado s public accommodations law prohibits discrimination against people based on sexual orientation Issue: Whether applying Colorado's public accommodations law to compel a cake artist to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment Bunch of these cases: wedding photographer, venue and stationary vendors Challengers have lost all of the cases

65 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Lower court decision Commission Free speech claim: Masterpiece does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally Free exercise claim: The Colorado Court of Appeals applied rational basis to Colorado s law and we easily conclude that it is rationally related to Colorado s interest in eliminating discrimination in places of public accommodation

66 Something More at Work in this Case Religious liberty to be free from taking a position in conflict with your religious beliefs Birth control mandate cases Denied cert in a pharmacy case no Justice Scalia Denied cert in an identical case involving a wedding photographer Justice Scalia on bench Cake case relisted 14 times Nibble than a bite into religious liberty

67 States with PA Statutes Protecting Sexual Orientation California Colorado Connecticut Delaware District of Columbia Hawaii Illinois Iowa Maine Massachusetts Maryland Minnesota Nevada New Hampshire New Jersey New Mexico Nevada Oregon Rhode Island Vermont Washington Wisconsin

68 Husted v. A Philip Randolph Institute Issue: whether federal law allows states to remove people from the voter rolls if the state sends them a confirmation notice after they haven t voted for two years, they don t respond to the notice, and then they don t vote in the next four years Ohio and 12 other states follow this process

69 Husted v. A Philip Randolph Institute The National Voter Registration Act (NVRA) says that roll maintenance procedures shall not result in people being removed from the polls for failure to vote The Help America Vote Act modified the NVRA to say that states may remove voters if they don t respond to a confirmation notice and don t vote in the next two federal election cycles

70 Husted v. A Philip Randolph Institute The Sixth Circuit struck down Ohio s scheme reasoning that it constitutes perhaps the plainest possible example of a process that result[s] in removal of a voter from the rolls by reason of his or her failure to vote The trigger for someone being removed from the voter rolls is their failure to vote Ohio argues that it doesn t remove voters by reason of their failure to vote; it removes voters by reason of their failure to respond to a notice and the NVRA doesn t regulate what triggers the confirmation notice

71 Husted v. A Philip Randolph Institute Other states Georgia Alaska Florida Illinois Iowa Missouri Montana Oklahoma Pennsylvania Rhode Island Tennessee West Virginia Delegate trigger authority Arkansas Kentucky Louisiana Mississippi Nevada North Carolina South Carolina

72 United States v. Carpenter Court s latest attempt to grapple with technology and the 4 th Amendment Everyone knew the Court would resolve this issue sooner rather than later Lot of attention will be paid to how Justice Gorsuch votes

73 United States v. Carpenter Issue: must police must obtain warrants per the Fourth Amendment to require wireless carriers to provide cell-site data Cellphones work by establishing a radio connection with the nearest cell tower Towers project signals in different directions or sectors In urban areas, cell sites typically cover from between a half-mile to two miles Wireless companies maintain cell-site information for phone calls

74 United States v. Carpenter Stored Communications Act requires governments to obtain a court order based on reasonable grounds for believing that the records were relevant and material to an ongoing criminal investigation Sixth Circuit held that obtaining the cell-site data does not constitute a search under the Fourth Amendment because while content is protected by the Fourth Amendment routing information is not See Smith v. Maryland (1979) where the Supreme Court held that police installation of a pen register a device that tracked the phone numbers a person dialed from his or her home phone was not a search

75 Murphy v. Smith The Prison Litigation Reform Act states that when an inmate recovers money damages in a confinement conditions case a portion of the judgment (not to exceed 25 percent) shall be applied to his or her attorney s fees award Does not to exceed 25 percent means up to 25 percent or exactly 25 percent?

76 Christie v. NCAA Chris Christie argues that because the Professional and Amateur Sports Protection Act (PASPA) prohibits the state from repealing laws restricting sports gambling it amounts to unconstitutional commandeering PASPA, adopted in 1992, makes it unlawful for states and local governments to authorize sports gambling

77 Christie v. NCAA The New Jersey constitution prohibited sports gambling New Jersey amended its constitution to allow some sports gambling The Third Circuit held that doing so violated PASPA as an authorization of sports gambling but concluded that repealing restrictions on sports gambling would be okay (and that New Jersey could completely allow sports gambling) New Jersey then passed a law repealing restrictions on sports gambling The Third Circuit changed course ruling the repeal violates PASPA It reasoned that the repeal authorizes sports gambling by selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling

78 Christie v. NCAA Per the anti-commandeering doctrine, Congress lacks the power directly to compel the States to require or prohibit acts which Congress itself may require or prohibit In both cases Christie argued that PASPA unconstitutionally commandeers states because it forces states to either completely prohibit sports gambling or completely allow it The Third Circuit disagreed

79 Christie v. NCAA Practical implication of this case: all sports freeze bans in place enacted before PASPA must stay in place Beyond sports gambling, the SLLC amicus brief argues that rationale of the Third Circuit s decision upholding its reading of PASPA would permit Congress to order state and local governments to freeze state and local law... on other issues of critical importance, ranging from issues such as physician-assisted death for the terminally ill to self-driving cars

80 Will Quill be Overturned? **No petition filed or granted yet** In 2015 Justice Kennedy, prompted by an SLLC brief, stated he may be interested in overturning Quill South Dakota (and other states) passed a law defying Quill with the hopes the Supreme Court will hold their law constitutional and overturn Quill South Dakota Supreme Court just ruled the law is unconstitutional now on to SCOTUS In the last year, Judge Gorsuch wrote an opinion strongly suggesting SCOTUS should overturn Quill $23 billion in lost tax revenue a year

81 Other Issues the Court Might Take Up Soon Public sector fair share unconstitutional Sexual orientation protected class under Title VII Gender identity protected by Title IX Auer deference

82 Supreme Court Preview Webinar October 24 1 PM Eastern time FREE Register of State and Local Legal Center s website