Supreme Court Update Steve McAllister & Toby Crouse

Transcription

1 Supreme Court Update Steve McAllister & Toby Crouse May 19-20, 2016 University of Kansas School of Law

2 OT 2015: Preview of cases Professor Steve McAllister and Toby Crouse 1. Eleventh Amendment State v. State Franchise Tax Board of California v. Hyatt, Case No (argued Dec. 7, 2015): 1. Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts. 2. Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled. 2. Eighth Amendment death penalty Kansas v. Carr, 136 S. Ct. 633 (2016): 1. Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances need not be proven beyond a reasonable doubt, as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? 2. Whether the trial court s decision not to sever the sentencing phase of the co-defendant brothers trial here-a decision that comports with the traditional approach preferring joinder in circumstances like this-violated an Eighth Amendment right to an individualized sentencing determination and was not harmless in any event? Kansas v. Gleason, 136 S. Ct. 633 (2016): 1. Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances need not be proven beyond a reasonable doubt, as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? OT2015: Preview for KU Law RDL Seminar Page 1 of 10 May 19, 2016

3 Kansas v. Carr, 136 S. Ct. 633 (2016): 1. Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances need not be proven beyond a reasonable doubt, as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? 2. Whether the trial court s decision not to sever the sentencing phase of the co-defendant brothers trial here-a decision that comports with the traditional approach preferring joinder in circumstances like this-violated an Eighth Amendment right to an individualized sentencing determination and was not harmless in any event? 3. Tribal court jurisdiction over non-members Dollar General Corporation v. Mississippi Band of Chocktaw Indians, Case No (argued Dec. 7, 2015): In Montana v. United States, 450 U.S. 544, 565 (1981), this Court held that generally the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. The Court recognized as an exception to that rule that a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members. Id. (emphasis added). The Court subsequently recognized in Nevada v. Hicks, 533 U.S. 353, 358 n.2 (2001), that it has never held that a tribal court had jurisdiction over a nonmember defendant in any context, so that it remains an open question whether tribal courts may ever exercise civil jurisdiction over nonmembers. In Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), this Court granted certiorari to decide whether Montana s undefined other means include adjudicating civil tort claims in tribal court. However, the Court resolved the case on other grounds. In this case, a divided panel of the Fifth Circuit held that tribal courts do have that jurisdiction. Five judges dissented from the denial of rehearing en banc. The case accordingly presents the issue the Court left open in Hicks and the Question the Court granted certiorari to decide in Plains Commerce: Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members? OT2015: Preview for KU Law RDL Seminar Page 2 of 10 May 19, 2016

4 4. Equal protection one person; one vote Evenwel v. Abbott, Case No (argued Dec. 8, 2015): In Reynolds v. Sims, 377 U.S. 533 (1964), this Court held that the Equal Protection Clause of the Fourteenth Amendment includes a one-person, one-vote principle. This principle requires that, when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. Hadley v. Junior Coll. Dist. Of Metro. Kansas City, Mo., 397 U.S. 50, 56 (1970). In 2013, the Texas Legislature enacted a State Senate map creating districts that, while roughly equal in terms of total population, grossly malapportioned voters. Appellants, who live in Senate districts significantly overpopulated with voters, brought a one-person, one-vote challenge, which the three-judge district court below dismissed for failure to state a claim. The district court held that Appellants constitutional challenge is a judicially unreviewable political question. The question presented is whether the one-person, one-vote principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote. 5. First Amendment government employment Heffernan v. City of Paterson, Case No (argued Jan. 19, 2016): Whether the First Amendment bars the government from demoting a public employee based on a supervisor s perception that the employee supports a political candidate. 6. Equal protection political reason for gerrymandering Harris v. Arizona Independent Redistricting Commission, Case No (argued Dec. 8, 2016): 1. Does the desire to gain partisan advantage for one political party justify intentionally creating over-populated legislative districts that result in tens of thousands of individual voters being denied Equal Protection because their individual votes are devalued, violating the one person, one-vote principle? 2. Does the desire to obtain favorable OT2015: Preview for KU Law RDL Seminar Page 3 of 10 May 19, 2016

5 preclearance review by the Justice Department permit the creation of legislative districts that deviate from the one-person, one-vote principle? And, even if creating unequal districts to obtain preclearance approval was once justified, is this still a legitimate justification after Shelby County v. Holder, 133 S. Ct (2013)? 3. Was the Arizona redistricting commission correct to disregard the majority-minority rule and rely on race and political party affiliation to create Hispanic influence districts? 7. Fourth Amendment unlawful investigatory stop uncovers valid warrant Utah v. Strieff, Case No (to be argued February 22, 2016): Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful? 8. Equal protection racial preferences for college admissions Fisher v. University of Texas at Austin, Case No (argued Dec. 9, 2015): Whether the Fifth Circuit s reendorsement of the University of Texas at Austin s use of racial preferences in undergraduate admissions decisions can be sustained under this Court s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct (2013). 9. Religious Freedom Restoration Act Affordable Care Act Zubik v. Burwell, Case No (to be argued March 23, 2016): 1. Whether the HHS Mandate and its accommodation violate the Religious Freedom Restoration Act ( RFRA ) by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. OT2015: Preview for KU Law RDL Seminar Page 4 of 10 May 19, 2016

6 Priests for Life v. Burwell, Case No (to be argued March 23, 2016): The contraceptive services mandate of the Patient Protection and Affordable Care Act requires Petitioner Priests for Life, a non-exempt religious employer, and its directors to affirmatively authorize and facilitate coverage for contraception, sterilization, abortifacients, and related education and counseling for the participants and beneficiaries of Priests for Life s healthcare plan in direct violation of Petitioners sincerely held religious beliefs. The question presented is whether the contraceptive services mandate of the Affordable Care Act as applied to non-exempt, nonprofit religious organizations violates the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb, et seq. Roman Catholic Archbishop of Washington v. Burwell, Case No (to be argued March 23, 2016): Whether the Religious Freedom Restoration Act ( RFRA ) allows the Government to force objecting religious nonprofit organizations to violate their beliefs by offering health plans with seamless access to coverage for contraceptives, abortifacients, and sterilization. East Texas Baptist University v. Burwell, Case No (to be argued March 23, 2016): The text of the Affordable Care Act says nothing about contraceptive coverage, but it does require employers to provide coverage for preventive care for women. Despite the obvious implications for many employers of deep religious conviction, HHS interpreted that statutory mandate to require all nonexempt employers to provide at no cost the full range of FDA-approved contraceptives, including some that cause abortions, under the auspices of their plans. This Court has already considered this contraception mandate and concluded that it imposes a substantial burden on religious exercise and violates the Religious Freedom Restoration Act (RFRA). However, the government offers nonprofit religious employers such as petitioners one option for complying with the contraception mandate not available to for-profit employers - namely, executing certain forms that ensure that their employees receive the full range of contraception coverage under the auspices of the employers healthcare plans and, in the government s view, put these religious employers in compliance with the statutory provide coverage obligation. It is undisputed that petitioners have a sincere religious objection to complying with the mandate in this way and that non- OT2015: Preview for KU Law RDL Seminar Page 5 of 10 May 19, 2016

7 compliance will result in draconian fines. The question presented is: Does the availability of a regulatory option for nonprofit religious employers to comply with HHS s contraceptive mandate eliminate either the substantial burden on religious exercise or the violation of RFRA that this Court recognized in Burwell v. Hobby Lobby Stores, Inc., (2014)? Little Sisters of the Poor Home for the Aged v. Burwell, Case No (to be argued March 23, 2016): The text of the Affordable Care Act (ACA) says nothing about contraceptive coverage, but it does require employers to provide coverage for preventive care for women. The Department of Health and Human Services (HHS) has interpreted that statutory mandate to require employers through their healthcare plans to provide at no cost the full range of FDA-approved contraceptives, including some that cause abortions. Despite the obvious implications for many employers of deep religious conviction, HHS decided to exempt only some nonprofit religious employers from compliance. As to all other religious employers, HHS demanded compliance, either directly or via a regulatory mechanism through which they must execute documents that authorize and obligate third parties to use their healthcare plans to facilitate the provision of contraceptive coverage to their employees and that, in the government s view, put these religious employers and their plans in compliance with the statutory provide coverage obligation. This Court has already considered the direct method of compliance and concluded that it imposes a substantial burden on religious exercise and violates the Religious Freedom Restoration Act (RFRA). It is undisputed, however, that nonexempt religious employers such as petitioners hold equally sincere religious objections to the regulatory method of compliance as well. It is further undisputed that they face draconian fines if they refuse to comply via one of those two avenues. The questions presented are: 1. Does the availability of a regulatory method for nonprofit religious employers to comply with HHS s contraceptive mandate eliminate either the substantial burden on religious exercise or the violation of RFRA that this Court recognized in Burwell v. Hobby Lobby Stores, Inc., (2014)? 2. Can HHS satisfy RFRA s demanding test for overriding sincerely held religious objections in circumstances where HHS itself insists that overriding the religious objection will not fulfill OT2015: Preview for KU Law RDL Seminar Page 6 of 10 May 19, 2016

8 HHS s regulatory objective - namely, the provision of no-cost contraceptives to the objector s employees? Southern Nazarene University v. Burwell, Case No (to be argued March 23, 2016): In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014), this Court held that the application of federal regulations implementing the Patient Protection and Affordable Care Act of 2010 ( ACA ) to compel certain for-profit religious employers to provide health insurance coverage for all FDA-approved contraceptives, see 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012) (the Mandate ), violated the Religious Freedom Restoration Act ( RFRA ). The government offers nonprofit religious employers an alternative means of complying with the Mandate that involves submitting a form that includes all FDA-approved contraceptives in or under the auspices of employers healthcare plans. Petitioners, four religious universities, object as a matter of conscience to facilitating contraception that may prevent the implantation of a human embryo in the womb, and brought suit seeking relief from the Mandate under RFRA. The decision below rejected their claims, ruling that RFRA s substantial burden analysis turns on courts secular assessment of the time, cost, and energy involved in complying with the Mandate, not Petitioners religious view of the required action s moral significance. The question presented is: Whether the alternative means for nonprofit religious employers to comply with the ACA s contraceptive-coverage Mandate alters Hobby Lobby s substantial-burden analysis or identification of a free exercise violation under RFRA. Geneva College v. Burwell, Case No (to be argued March 23, 2016): The government recently declared that under federal regulations implementing the Patient Protection and Affordable Care Act of 2010 ( ACA ), it is giving seamless coverage of contraception to participants in the health plans of objecting religious organizations. 80 Fed. Reg. 41,318, 41,328 (July 14, 2015). Petitioner Geneva College objects as a matter of religious belief to providing a health plan that is seamless with coverage of abortifacients that may prevent the implantation of an embryo. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014), this Court held that compelling certain forprofit religious employers to provide health insurance coverage for objectionable FDA-approved contraceptives, see 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012) (the Mandate ), violated the OT2015: Preview for KU Law RDL Seminar Page 7 of 10 May 19, 2016

9 Religious Freedom Restoration Act ( RFRA ). Geneva College similarly sought relief from the Mandate under RFRA. Yet the decision below held that the Mandate totally removes Geneva College from the process, despite its use of seamless coverage, and therefore it does not burden religious exercise under RFRA, substantially or otherwise. The question presented is: Whether, under Hobby Lobby, the Mandate s imposition of seamless abortifacient coverage on objecting religious nonprofit organizations health plans substantially burdens religious exercise and violates RFRA. 10. First Amendment union membership Friederichs v. California Teachers Association, Case No (argued Jan. 11, 2016): Twice in the past three years this Court has recognized that agency-shop provisions - which compel public employees to financially subsidize public-sector unions efforts to extract union-preferred policies from local officials - impose a significant impingement on employees First Amendment rights. Knox v. Serv. Emps. Int l Union, 132 S. Ct. 2277, 2289 (2012); see also Harris v. Quinn, 134 S. Ct (2014). California law requires every teacher working in most of its public schools to financially contribute to the local teachers union and that union s state and national affiliates in order to subsidize expenses the union claims are germane to collective bargaining. California law also requires public-school teachers to subsidize expenditures unrelated to collective bargaining unless a teacher affirmatively objects and then renews his or her opposition in writing every year. The questions presented are therefore: 1. Whether Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), should be overruled and public-sector agency shop arrangements invalidated under the First Amendment. 2. Whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. 11. Due process abortion restriction Whole Woman s Health v. Hellerstedt, Case No (to be argued March 2, 2016): (1) In Planned Parenthood of Southeastern Pennsylvania v. Casey, this Court reaffirmed that the decision to end a pregnancy prior to viability is a OT2015: Preview for KU Law RDL Seminar Page 8 of 10 May 19, 2016

10 12. Separation of powers fundamental liberty protected by the Due Process Clause. 505 U.S. 833, (1992). It held that a restriction on this liberty is impermissible if it amounts to an undue burden. Id. at Under this standard, states may not enact [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion. Id. at 878. The questions presented are: (a) When applying this standard, does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government s interest in promoting health? (b) Did the Fifth Circuit err in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State s interest in promoting health-or any other valid interest? (2) Did the Fifth Circuit err in holding that res judicata provides a basis for reversing the district court s judgment in part? Bank Markazi v. Peterson, Case No (argued January 13, 2016): This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C By its terms, that statute applies only to this one case: to the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ (BSJ) (GWG). Id. 8772(b). In order to ensure that Iran is held accountable for paying the judgments, it provides that, notwithstanding any other state or federal law, the assets shall be subject to execution upon only two findings - essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. 8772(a)(l), (2). The question presented is: Whether a statute that effectively directs a particular result in a single pending case - violates the separation of powers. OT2015: Preview for KU Law RDL Seminar Page 9 of 10 May 19, 2016

11 13. Eighth and Fourteenth Amendments bias and capital punishment Williams v. Pennsylvania, Case No (to be argued February 29, 2016): 1. In Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009), this Court held that due process requires an objective inquiry into judicial bias. The question presented is: Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney s Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had sent to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state postconviction court that his office committed prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), when it prosecuted and sought death against Petitioner? 2. In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986), this Court left open the question whether the Constitution is violated by the bias, appearance of bias, or potential bias of one member of a multimember tribunal where that member did not cast the deciding vote. The circuits and states remain split on that question. The question presented is: Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive? 14. Article III standing Congress power to confer Spokeo v. Robins, Case No (argued Nov. 2, 2015): Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. * * * * * OT2015: Preview for KU Law RDL Seminar Page 10 of 10 May 19, 2016