The Supreme Court held its final oral arguments of the term this morning. They released one opinion this morning, ruling that ambiguous arbitration agreements cannot be held to compel class certification of arbitration.
And yes, this year’s cases, on the whole, have been a bit less interesting and more technical than in recent years, but there are some high profile matters due for decision.
Decisions days are April 29, May 13, 20, 28, June 3, 10, 17, 24. All those days are Monday’s, except for May 28, which is a Tuesday, Monday being Memorial Day.
Some brief comments on the cases below. I suspect that the Supreme Court will rule 5 to 4 in favor of allowing the Citizenship Question to appear on the 2020 Census. I am aware of all the legal arguments for and against and I am aware both of the benefits to be gained and the possible negative consequences of the question.
However, the courts are not arbiters of public policy. They must judge only two issues: 1. Is the inclusion of the question legal and 2. Is the inclusion of the question Constitutional. In historical context, the answer to both questions must be yes. The Citizenship Question was included on all census’s between 1890 and 1950 inclusive, which time period included periods of high immigration to the United States. And I think at this point it is undisputed that the government can ask a very broad (and frankly intrusive at times) set of question. If we accept, as we have, that the government can ask intrusive questions, it is beyond any doubt at all that it may ask if you are a citizen. The demographic information to be gained by the inclusion of such a question is clearly useful.
Yes, it may cause people to avoid answering the census. But that negative effect is a policy consideration that is beyond the scope of the federal courts to entertain and belongs solely to the political branches.
There is away around this that I would accept. Issue a blanket immunity for census response, meaning that no investigation or arrest may occur based on a census response. Seal individual census responses once they have been aggregated. By the time the information is publicly released (which I believe is 70 years), it won’t matter anyhow.
I suspect we will get the decision in the Census case by mid-May, as the Census Department is up against a printing deadline, the court will not let this lag into June.
As for the redistricting cases, I cannot guess exactly which way the court will go.
The most notable pending cases are:
Issue(s): Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).
Issue(s): Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
Issue(s): Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. CVSG: 05/22/2018.
Issue(s): Whether Nevada v. Hall , which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.
The American Legion v. American Humanist Association, No. 17-1717 [Arg: 2.27.2019Trans./Aud.]
Issue(s): (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman , Van Orden v. Perry , Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18 [Arg: 2.27.2019 Trans.]
Issue(s): Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
Issue(s): (1) Whether the district court conducted a proper “holistic” analysis of the majority-minority Virginia House of Delegates districts under the prior decision in this case, Bethune-Hill v. Virginia State Board of Elections, even though it ignored a host of evidence, including the overwhelming majority of district lines, which were carried over unchanged from the prior map; the geographic location of population disparities, which imposed severe redistricting constraints and directly impacted which voters were moved into and out of the majority-minority districts; and the degree of constraint the House’s Voting Rights Act compliance goals imposed in implementation, which was minimal; (2) whether the Bethune-Hill “predominance” test is satisfied merely by a lengthy description of ordinary Voting Rights Act compliance measures; (3) whether the district court erred in relying on expert analysis it previously rejected as unreliable and irrelevant and expert analysis that lacked any objective or coherent methodology; (4) whether the district court committed clear error in ignoring the entirety of the house’s evidentiary presentation under the guise of credibility determinations unsupported by the record and predicated on expert testimony that should not have been credited or even admitted; (5) whether Virginia’s choice to draw 11 “safe” majority-minority districts of around or above 55 percent black voting-age population (“BVAP”) was narrowly tailored in light of the discretion the Voting Rights Act afforded covered jurisdictions to “choose to create a certain number of ‘safe’ districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice,” under Georgia v. Ashcroft, or the requirement the Voting Rights Act, as amended, imposed on covered jurisdictions “to prove the absence of racially polarized voting” to justify BVAP reductions towards or below 50 percent BVAP; (6) whether the district court erred in ignoring the district-specific evidence before the house in 2011 justifying safe districts at or above 55 percent BVAP; and (7) whether appellants have standing to bring this appeal.
Issue(s): In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
Rucho v. Common Cause, No. 18-422 [Arg: 3.26.2019 Trans./Aud.]
Issue(s): (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
Issue(s): Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.
Issue(s): (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker – including by compelling the testimony of high-ranking executive branch officials – without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
The full list of cases, both pending and decided are at the above link.
There are quite a few cases pending that I did not list above as they are not of general interest here.