Headlines for June 26, 2018

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The final four

Read more of this story here from SCOTUSblog by Amy Howe.

The final four

The justices are expected to take the bench this morning for the second time this week to issue opinions in argued cases. After Monday’s two opinions, there are four cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

Florida v. Georgia (argued January 8, 2018): This is a relatively rare “original jurisdiction” case – a lawsuit that begins in the Supreme Court, rather than coming to the justices as an appeal. It arises from a decades-long dispute between Florida and Georgia over Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, which begins in northeast Georgia and flows south into the Florida Panhandle, along the two states’ borders with Alabama. The Supreme Court appointed a special master to hold a trial in the case; last year the special master issued a report recommending that Florida’s request to limit Georgia’s water use be denied. Florida objected to his conclusions, and the justices heard oral argument in the case earlier this year.

This opinion is likely to come from Justice Stephen Breyer, the only justice who has not written a majority opinion yet for January. If Breyer is writing in this case, it would bring him to seven opinions for the term.

Janus v. AFSCME (argued February 26, 2018): This is a case filed by Mark Janus, an Illinois child-support specialist. Although Janus does not belong to the union that represents him, he is still required to pay the union a fee (usually known as an “agency fee” or “fair-share fee”) to cover the costs of collective bargaining from which he benefits. The Supreme Court approved such an arrangement over 40 years ago, but Janus is asking the justices to overrule that decision. He argues that the fee violates his rights under the First Amendment because it finances speech by the union that is intended to directly influence the government’s policies on issues like salary, benefits and pensions. Janus’ case is the third time that the justices have considered this question: In the first case, they concluded that the challengers were not actually government employees, and they deadlocked in the second case after the death of Justice Antonin Scalia.

The case likely hinges on the vote of the court’s newest justice, Neil Gorsuch, who did not tip his hand at the oral argument. This is the only case still left from the court’s February sitting, but it’s hard to predict who might be writing this opinion because three justices have not yet written opinions in February. Many court-watchers believe that if Janus wins, Justice Samuel Alito is likely to write the opinion, because he wrote the ruling in the first challenge to the union fees. One of the other justices who has not yet written in March is Justice Sonia Sotomayor, but she already has seven opinions for the term and therefore is not likely to be writing again. That leaves Justice Ruth Bader Ginsburg (who only has six opinions so far, with no other real prospects to pick up a seventh) as the other possible author, which would almost certainly signal a victory for the unions. Justice Elena Kagan would be the most logical author of a ruling for the unions because she wrote the main dissent in Harris v. Quinn, the first case in which the justices considered the union-fees question, but this case is a sufficiently big deal that Ginsburg – who would have the power to assign the opinion if she were, as would be likely, the most senior justice in the majority – might have wanted to keep it for herself.

NIFLA v. Becerra (argued March 20, 2018): This is a challenge to a California law that imposes two different sets of requirements on crisis-pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion and offer their assistance to pregnant women. Centers that are licensed to provide medical services (such as pregnancy tests and ultrasounds) must post notices to inform their patients that free or low-cost abortions may be available, while unlicensed centers (which provide pregnant women with diapers and formula, for example) must include disclaimers in their advertisements to make clear that their services do not include medical help. The centers argue that the law violates the First Amendment’s free speech clause.

Justices Clarence Thomas, Stephen Breyer and Sonia Sotomayor are all still without a majority opinion for March, but Sotomayor has already written seven majority opinions this term to Thomas’ six. Breyer has also written six, but, as noted above, he is likely to be writing in January’s water-rights case, leaving Thomas as the likely author.

Trump v. Hawaii (argued April 25, 2018): This is the challenge to President Donald Trump’s September 2017 order, which limited travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii has two main arguments. First, it says, although the president has broad power over immigration, the order goes too far. Second, it contends that the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. The state points to the two earlier versions of the order, which targeted Muslim countries, as well as comments and tweets made by the president calling for a ban on the entry of Muslims into the United States.

This opinion is very likely to come from Chief Justice John Roberts, the only justice who has not written a majority opinion yet for April and who has written only five majority opinions so far this term.

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Tuesday round-up

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Tuesday round-up

Yesterday the Supreme Court issued two more decisions, bringing the number of remaining cases down to four. Mark Walsh has a first-hand account of today’s opinion announcements for this blog. In Abbott v. Perez, the court, by a vote of 5-4, largely upheld Texas’ federal congressional and state legislative maps against a racial-gerrymandering challenge. Amy Howe analyzes the opinion for this blog; her analysis was first published at Howe on the Court. Subscript Law has a graphic explainer for the decision. At The Wall Street Journal, Jess Bravin and Brent Kendall report that the court reinstated the state’s “maps for its congressional seats and state House of Representative districts, both of which had been thrown out for discriminating against minority voters, ruling … that the Republican-controlled Legislature’s good faith in adopting the lines should be presumed.” Additional coverage comes from Bill Mears at Fox News, Nina Totenberg at NPR, Kevin Daley at The Daily Caller, Richard Wolf for USA Today, Robert Barnes for The Washington Post, Adam Liptak for The New York Times, and Lawrence Hurley at Reuters.

At CNN, Joan Biskupic suggests that “[t]he Supreme Court continues to deliver an implicit message to civil rights advocates challenging state election practices as discriminatory: States can do what they want,” and that this term’s “decisions are likely to reverberate in upcoming elections and the post-2020 Census redistricting.” Additional commentary and analysis come from Michael Dorf at Dorf on Law, Sam Levine at HuffPost, Imani Gandy at Rewire.News, Ruthann Robson at the Constitutional Law Prof Blog, Matt Ford at The New Republic, Ian Millhiser at ThinkProgress, Richard Hasen at Slate, and Mark Joseph Stern, in two posts at Slate, here and here, who argues that “[t]he faceoff between Alito and Sotomayor over voting rights reveals a deep fissure between the justices—not just about statutory interpretation, but also about who deserves the court’s empathy in a voting rights dispute.”

In Ohio v. American Express Co., the court ruled 5-4 that American Express’ anti-steering rules do not violate federal antitrust law. Beth Farmer analyzes the opinion for this blog. Subscript Law’s graphic explainer is here. At Reuters, Andrew Chung reports that “the justices upheld a lower court decision that had cleared the company of unlawfully stifling competition through so-called anti-steering provisions in its contracts with merchants.”  Additional coverage comes from Richard Wolf for USA Today, Adam Liptak for The New York Times, and Brent Kendall and AnnaMaria Andriotis for The Wall Street Journal, who report that “[t]he high court said the proper approach was to evaluate AmEx’s model more broadly to take into account the cardholder side of the market.” Commentary comes from Scott Lemieux at Lawyers, Guns & Money. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.]

The justices also issued orders from last week’s conference, adding seven new cases to next year’s docket and sending the case of a florist who declined on religious grounds to provide custom flowers for a same-sex wedding back to the lower courts for them to reconsider in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission and a partisan-gerrymandering case from North Carolina back for reconsideration in light of Gill v. Whitford. Amy Howe has this blog’s coverage. For The New York Times, Adam Liptak reports that the justices “pass[ed] up opportunities to clarify its inconclusive rulings in some of the most closely watched cases this term.” For The Washington Post, Robert Barnes likens the dispositions to “punting after a punt — raising questions about the careful path the court is treading this term,” notably, “whether the delay is related to the plans of Justice Anthony M. Kennedy, a pivotal vote whose future on the bench is a matter of intense speculation.” Coverage of the remand in Arlene’s Flowers v. Washington comes from Gene Johnson at the Associated Press, Ariane de Vogue and Eli Watkins at CNN, Greg Stohr at Bloomberg, Richard Wolf for USA Today, and Lawrence Hurley at Reuters. Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog and Kristen Waggoner at National Review. Coverage of the remand in Rucho v. Common Cause, the redistricting case, comes from Josh Gerstein at Politico, Richard Wolf for USA Today, Robert Barnes for The Washington Post, and Greg Stohr at Bloomberg, while commentary comes from Rick Hasen at the Election Law Blog.

For The Washington Post, Robert Barnes reports that the justices “turned down a plea to intervene in the case of Brendan Dassey, whose confession to rape and murder as a teenager was portrayed as coerced in the popular Netflix documentary ‘Making a Murderer.’” Additional coverage of the cert denial in Dassey v. Dittmann comes from Fox News, Ariane de Vogue and Eli Watkins at CNN, Robert Barnes for The Washington Post, and Jessica Gresko at the Associated Press. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Commentary on Carpenter v. United States, in which the justices held last week that the government ordinarily needs a warrant to access historical cell-site location information, comes from Albert Gidari at Stanford Law School’s Legal Aggregate blog and Ian Millhiser at ThinkProgress. Counting to 5 (podcast) includes a discussion of the decision.

Subscript Law provides a graphic explainer for last week’s decision in Ortiz v. United States, in which the justices held that a judge’s simultaneous service on two military courts does not violate the dual-officeholder ban. At Lawfare, Aditya Bamzai explains why he disagrees with the court’s conclusion that it had jurisdiction to decide the case.

Briefly:

  • For The New York Times, Adam Liptak looks at Timbs v. Indiana, in which the court will decide whether the Eighth Amendment’s excessive fines clause applies to the states, noting that “[a]s Justice Clarence Thomas explained last year in an opinion urging the Supreme Court to examine civil forfeiture laws, government seizures of property used to commit crimes have become worrisomely popular.”
  • At Take Care, Leah Litman and Abigail DeHart argue that “many of the Court’s recent decisions tell us what we need to know [about Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban]: Under any meaningful standard for assessing government motives, the entry ban must fail.”

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

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Trump Administration Now Has Fair Housing In Its Sights

Read more of this story here from DCReport.org by David Crook.

  HUD Sec. Carson Wants to Make It Easier for Banks, Insurers and Landlords to Redline Minorities 

HUD Sec. Ben Carson

The Trump administration is trying to make it easier for banks, landlords and insurance companies to discriminate against minority homeowners and tenants.

Anna Maria Farías, an assistant secretary at HUD, is asking for comments on possible “revisions that could add clarity, reduce uncertainty” on a HUD rule on the legal theory that the Obama administration and its predecessors used to prove discrimination cases.

The theory, “disparate impact analysis,” measures discrimination, such as African-Americans paying higher interest rates on loans, without having to prove an intent to discriminate.

More than 50 years after the passage of the Fair Housing Act of 1968, signed just seven days after the assassination of Dr. Martin Luther King, African-American homeownership rates are almost the same as the 1960s. Neighborhoods are more segregated now than they were in 1918.

ACTION BOX/What You Can Do About It

Comment online by Aug. 20 or mail comments to Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th St. SW, Room 10276, Washington, DC 20410-0500. Comments should use the identification number Docket No. FR-6111-A-01.

Call Anna Maria Farías, the assistant secretary for Fair Housing and Equal Opportunity, at 202-708-4252.

The National Fair Housing Alliance can be reached at 202-898-1661 or nfha@nationalfairhousing.org.

 

One major case where attorneys used disparate impact analysis to prove discrimination was about a law adopted by St. Bernard Parish, La., after Hurricane Katrina. The parish, where 93% of the homeowners were white, prohibited homeowners from renting to anyone except a “blood relative” unless they had a permit.

Unfair housing explained in a 1940s brochure

A 2013 HUD rule meant to help fight long-standing segregation laid out how to analyze disparate impact claims under the Fair Housing Act. A 2015 Supreme Court case, Texas Department of Housing v. Inclusive Communities Project, upheld using the theory in Fair Housing Act cases.

Republican lawmakers have urged HUD Sec. Ben Carson to review the rule. Seventeen of the 18 House members who signed the letter have received $55,333 in campaign contributions so far for the 2018 election from the political action committee of the  Property Casualty Insurers Association of America which has sued HUD over the rule.

Their letter regurgitated some of the points made in court filings by insurance industry attorney Paul Hancock, who was representing the American Insurance Association in another lawsuit against HUD. Four of the letter signers have received a total of $13,000 so far for the 2018 election from the political action committee of the America Insurance Association.

Carson has criticized efforts to undo discrimination with disparate impact.

“These government-engineered attempts to legislate racial equality create consequences that often make matters worse,” Carson wrote in The Washington Times.

The Trump administration claims it needs to consider revising the 2013 rule because of the Supreme Court case, but Stacy Seicshnaydre, a law school professor at Tulane University, said nothing in the Supreme Court ruling undermines the HUD rule.

“It’s not technically true,” Seicshnaydre said of the Trump administration claims.

Craig Gurian, the executive director of the Anti-Discrimination Center in New York, said HUD could try to make it more difficult for plaintiffs in fair housing cases to prove discrimination.

“They can make it much more difficult to utilize the rule,” Gurian said.

 

 

 

 

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Pompeo Refuses To Put Timeline On North Korea Negotiations

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U.S. Secretary of State Mike Pompeo said that when it comes to negotiating North Korea's denuclearization, he's not going to enforce any specific timeline. 

Pompeo's comments to CNN appear to contradict a senior defense official who told reporters earlier this month that the Trump administration would be presenting a timeline of "specific asks" to North Korea soon. Although, a Pentagon spokeswoman has since said defense officials would only speak about military-related aspects of the negotiations.

Pompeo himself previously said the Trump administration hoped for a "major disarmament" by North Korea by January 2021.

Now instead of a timeline, Pompeo told CNN he will "constantly reassess" whether North Korea is taking steps to get rid of its nuclear weapons.

Last week, Reuters quoted Pompeo as saying he expected to travel to North Korea "before too terribly long" to follow up on commitments made by President Donald Trump and North Korean leader Kim Jong-un.

Additional reporting from Newsy affiliate CNN.

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CBS Expands Its Streaming Agreement With The NFL

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Football fans can now watch the NFL live on their phones on CBS' streaming service.

CBS expanded its streaming agreement with the NFL on Monday to include cellphones. The agreement was expanded through the 2022 football season.

The move is part of the NFL's plan to to reach more viewers amid falling ratings. An NFL spokesperson said, "The 2018 season will mark a new era for NFL fans with unprecedented access to NFL games across digital platforms."

CBS All Access subscribers can watch games on a variety of devices, including Roku, Xbox, Playstation and smart TVs.

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Pentagon Preparing To House Migrants On Texas Military Bases

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The Pentagon is preparing two U.S. military bases in Texas to house potentially thousands of detained people accused of trying to illegally cross the southern border. They are Fort Bliss Army base in El Paso and Goodfellow Air Force Base in San Angelo.

Both CNN and NPR report the government will house migrant families at Fort Bliss and unaccompanied migrant children at Goodfellow. CNN also reports the Department of Homeland Security will ask the Pentagon to approve plans to house possibly more than 7,000 unaccompanied migrant children at Goodfellow in both tents and hardened structures.

Defense Secretary Jim Mattis says the military will provide logistical support, but the day-to-day operations will be run by outside agencies and government contractors. As of Monday, he hadn't confirmed further details. 

The U.S. military is acting on a request for logistical support from DHS to house detainees, which Mattis says is appropriate for it to do.

Additional reporting by Newsy affiliate CNN.

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