I'm a day late to posting the most recent SCOTUS update, but I wasn't feeling well yesterday so here we are!! On this edition of the SCOTUS update, we have a couple cert grants, an opinion objecting to the denial of cert in a case, some calendar news, and ... a no good, very bad decision from the 8th Circuit Court of Appeals that most definitely is going to end up in front of the Supreme Court.
1.) In its order list released on Monday, the Supreme Court granted cert in 3 cases, consolidating two of them. Those two cases both involve Native American tribes seeking money from the Indian Health Service to cover costs covered by insurance, where those tribes manage their own health care programs. The other case that was granted cert was an Armed Career Criminal Act case that asks whether a jury, and not a judge, must decide whether the crimes committed by the defendant constituted crimes committed on "different occasions" - a necessary element for sentencing enhancements that are triggered under the Act. Both cases should still make it onto the calendar for argument during this term, likely in March or April.
2.) Only one of the many cases that the Court denied cert in on Monday attracted a written dissent, coming from Justice Thomas. Justice Kavanaugh also would have voted to accept the case, although he did not join Thomas's dissent. Justice Alito took no part in the decision, indicating there was a conflict somewhere (most likely conflicting stock ownership). The underlying case that led to the cert petition involved a huge multi district suit against DuPont that has led to significant costs for DuPont. There are certain procedural rules for handling this kind of huge multi district case, and as part of the process in this one a series of small "bellweather" cases were held to essentially determine the viability of the overarching multi district case. As a result of the judgments in those cases, later parties came forward and used the results of those cases against DuPont through a process called collateral estoppel. Justice Thomas argues in his dissent from the cert denial that the lower courts improperly used the bellwether trials to establish not just preliminary issues associated with the multidistrict litigation but to actually determine substantive results of underlying cases - something that he views as depriving DuPont of its right to an actual complete trial. He further argues that the process wasn't fair to DuPont because they had no reason to believe that the bellwether trials were determinative. While his argument does appear convincing on its face, the fact that only Kavanaugh agreed on accepting the case - and even he didn't sign on to Thomas's opinion - suggests that Thomas's position is not as reasonable as it sounds, and that he is once again on a bit of an island of his own. It would have been interesting to see whether Alito aligned with him had Alito participated in the case.
3.) The Court set its January Sitting argument calendar on Friday, and the highlight will actually be on the last day of arguments in the sitting, on January 17, when the Court will hear a pair of cases asking whether it should overrule the vaunted Chevron case, which has guided the courts for decades when reviewing the actions taken by federal agencies. Overruling Chevron has been a conservative goal for a very long time, and it seems almost certain the Court will take advantage of its numbers to finally do it. I'll talk a lot more about this when reviewing oral arguments in this case come January, and even more when the eventual decision comes out, but suffice it to say I don't like this at all and think overruling Chevron would be a mistake. In addition to the Chevron cases, the Court will also hear a couple of property rights cases, an immigration case, a No Fly List case, a Sixth Amendment case, a bankruptcy case, and an SEC disclosure case.
4.) In non-SCOTUS news ... at least for now ... the 8th Circuit Court of Appeals issue a horrendously bad decision on the Voting Rights Act that upheld an obtuse Arkansas District Court ruling dismissing a Voting Rights Act challenge against Arkansas's redistricting map, which the Arkansas NAACP challenged as an unconstitutional racial gerrymander. Ever since the VRA was passed in 1965, the courts have allowed private parties to bring claims under the act to court. Yet, now, magically, after nearly 60 years of consistent practice, a Trump judge in Arkansas decided out of thin air that the statute doesn't include a private right of action, meaning only the Attorney General can bring suit to enforce the provision. Never mind that Congress had nearly 60 years to tell the courts that they were getting it wrong if a private right of action wasn't intended - these "conservative" judges have decided that couldn't possibly be what is meant by the statute, and since a clear private right of action wasn't included in the VRA as it was in the Civil Rights Act, for instance, therefore it such a private right of action must not exist. Simply put, there is nothing "conservative" about radically ripping up 60 years of jurisprudence regarding how a statute functions - it is an utterly absurd power grab. I'm not surprised that a Trump district court judge would make such a ruling. I am, however, dismayed that an appellate panel of judges would do so, although there was at least a dissent in that case. This case will definitely make it to the Supreme Court. I am not confident that the Court will do the right thing, but I also am not certain that they won't - the Chief Justice, Justice Kavanaugh, and Justice Barrett I think are all in play on this one, and the 3 left leaning Justices will vote the right way on this. Given that the conservatives have protected some elements of the VRA while striking down others, there is at least some hope here. If you're wondering about Justice Gorsuch, this seems like the type of case where he will get buried too much in the text and forget the precedent involved, so I suspect he'll vote to uphold the egregiously poor 8th Circuit decision ... but once in awhile he surprises me. In any case, this is unlikely to be heard by the Court until next fall I suspect, so a decision probably won't come for at least 18 months. That's a horrifying amount of time for such a bad ruling to remain in place, so hopefully I'm wrong and this case ends up in front of the Court still this year ... but the timing here doesn't make that very likely.
1.) In its order list released on Monday, the Supreme Court granted cert in 3 cases, consolidating two of them. Those two cases both involve Native American tribes seeking money from the Indian Health Service to cover costs covered by insurance, where those tribes manage their own health care programs. The other case that was granted cert was an Armed Career Criminal Act case that asks whether a jury, and not a judge, must decide whether the crimes committed by the defendant constituted crimes committed on "different occasions" - a necessary element for sentencing enhancements that are triggered under the Act. Both cases should still make it onto the calendar for argument during this term, likely in March or April.
2.) Only one of the many cases that the Court denied cert in on Monday attracted a written dissent, coming from Justice Thomas. Justice Kavanaugh also would have voted to accept the case, although he did not join Thomas's dissent. Justice Alito took no part in the decision, indicating there was a conflict somewhere (most likely conflicting stock ownership). The underlying case that led to the cert petition involved a huge multi district suit against DuPont that has led to significant costs for DuPont. There are certain procedural rules for handling this kind of huge multi district case, and as part of the process in this one a series of small "bellweather" cases were held to essentially determine the viability of the overarching multi district case. As a result of the judgments in those cases, later parties came forward and used the results of those cases against DuPont through a process called collateral estoppel. Justice Thomas argues in his dissent from the cert denial that the lower courts improperly used the bellwether trials to establish not just preliminary issues associated with the multidistrict litigation but to actually determine substantive results of underlying cases - something that he views as depriving DuPont of its right to an actual complete trial. He further argues that the process wasn't fair to DuPont because they had no reason to believe that the bellwether trials were determinative. While his argument does appear convincing on its face, the fact that only Kavanaugh agreed on accepting the case - and even he didn't sign on to Thomas's opinion - suggests that Thomas's position is not as reasonable as it sounds, and that he is once again on a bit of an island of his own. It would have been interesting to see whether Alito aligned with him had Alito participated in the case.
3.) The Court set its January Sitting argument calendar on Friday, and the highlight will actually be on the last day of arguments in the sitting, on January 17, when the Court will hear a pair of cases asking whether it should overrule the vaunted Chevron case, which has guided the courts for decades when reviewing the actions taken by federal agencies. Overruling Chevron has been a conservative goal for a very long time, and it seems almost certain the Court will take advantage of its numbers to finally do it. I'll talk a lot more about this when reviewing oral arguments in this case come January, and even more when the eventual decision comes out, but suffice it to say I don't like this at all and think overruling Chevron would be a mistake. In addition to the Chevron cases, the Court will also hear a couple of property rights cases, an immigration case, a No Fly List case, a Sixth Amendment case, a bankruptcy case, and an SEC disclosure case.
4.) In non-SCOTUS news ... at least for now ... the 8th Circuit Court of Appeals issue a horrendously bad decision on the Voting Rights Act that upheld an obtuse Arkansas District Court ruling dismissing a Voting Rights Act challenge against Arkansas's redistricting map, which the Arkansas NAACP challenged as an unconstitutional racial gerrymander. Ever since the VRA was passed in 1965, the courts have allowed private parties to bring claims under the act to court. Yet, now, magically, after nearly 60 years of consistent practice, a Trump judge in Arkansas decided out of thin air that the statute doesn't include a private right of action, meaning only the Attorney General can bring suit to enforce the provision. Never mind that Congress had nearly 60 years to tell the courts that they were getting it wrong if a private right of action wasn't intended - these "conservative" judges have decided that couldn't possibly be what is meant by the statute, and since a clear private right of action wasn't included in the VRA as it was in the Civil Rights Act, for instance, therefore it such a private right of action must not exist. Simply put, there is nothing "conservative" about radically ripping up 60 years of jurisprudence regarding how a statute functions - it is an utterly absurd power grab. I'm not surprised that a Trump district court judge would make such a ruling. I am, however, dismayed that an appellate panel of judges would do so, although there was at least a dissent in that case. This case will definitely make it to the Supreme Court. I am not confident that the Court will do the right thing, but I also am not certain that they won't - the Chief Justice, Justice Kavanaugh, and Justice Barrett I think are all in play on this one, and the 3 left leaning Justices will vote the right way on this. Given that the conservatives have protected some elements of the VRA while striking down others, there is at least some hope here. If you're wondering about Justice Gorsuch, this seems like the type of case where he will get buried too much in the text and forget the precedent involved, so I suspect he'll vote to uphold the egregiously poor 8th Circuit decision ... but once in awhile he surprises me. In any case, this is unlikely to be heard by the Court until next fall I suspect, so a decision probably won't come for at least 18 months. That's a horrifying amount of time for such a bad ruling to remain in place, so hopefully I'm wrong and this case ends up in front of the Court still this year ... but the timing here doesn't make that very likely.