From PBS: Supreme Court bats down challenge to new anti-doping rules for horse racing

Republicans tend not to like regulations imposed on the states by the national government. Sometimes they are successful in using the courts to overturn those regulations. 

Apparently, this time they were not. 

This is an example of federalism, as well as - sort of - the general welfare.

- Click here for the article.

The Supreme Court on Monday rejected a challenge from Republican-controlled states to a horse racing safety law that has led to national medication and anti-doping rules.

The justices left in place an appeals court ruling that upheld the law and rejected claims that Congress gave too much power to the Horseracing Integrity and Safety Authority, the private entity that administers the rules.

Charles Scheeler, chairman of HISA’s board of directors, cited a 38 percent decline in equine fatalities for the first three months of this year in applauding the court’s decision.

“HISA’s uniform standards are having a material, positive impact on the health and well-being of horses,” he said in a statement.

Oklahoma, Louisiana and West Virginia sought to have the law struck down, joined by other racetracks that are not operating under HISA.

“I’ve said all along that we are going to do our due diligence all the way to the U.S. Supreme Court to ensure that the rules governing horsemen are fair, clear and constitutional,” said Eric Hamelback, CEO of the National Horsemen’s Benevolent and Protective Association.

Two other cases are pending in federal court, one in the 5th Circuit and another in the 8th Circuit.

“We still could hear any day from the 5th Circuit on whether HISA remains unconstitutional after the congressional tweak, and the oral argument last October went well for us,” Hamelback said.

Both Scheeler and National Thoroughbred Racing Association president and CEO Tom Rooney urged HISA opponents to end their litigation.

“It is long past time for opponents of HISA to drop their outstanding lawsuits,” Scheeler said. “In light of this decision, continued litigation only serves to take time and valuable resources away from our core mission of improving the safety and integrity of thoroughbred racing.”

Rooney added, “It is time for all parties to stop their internal fighting and support HISA as the law of the land.”

The anti-doping program, which took effect in the spring of 2023, is an attempt to centralize the drug testing of racehorses and manage the results, as well as dole out uniform penalties to horses and trainers instead of the previous patchwork rules in the 38 racing states.

Espinoza v. Montana Department of Revenue

From Oyez: 

Question:

Does a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?

Conclusion:

The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause. Chief Justice John Roberts authored the opinion on behalf of the 5-4 majority.

The Court first noted that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” In this case, Montana’s no-aid provision excluded religious schools from public benefits solely because of religious status. As such, the law must be subject to strict scrutiny review; that is, the government must show that its action advances “‘interests of the highest order” and that the action is “narrowly tailored in pursuit of those interests.” Montana’s interest in this case—which the Court described as creating greater separation of church and state than the federal Constitution requires—does not satisfy strict scrutiny given its infringement of free exercise. Because the Free Exercise Clause barred the application of Montana’s no-aid provision, the Montana Supreme Court lacked the authority to invalidate the program on the basis of that provision.

Justice Clarence Thomas authored a concurring opinion in which Justice Neil Gorsuch joined, opining that the Court’s Court’s interpretation of the Establishment Clause (not at issue in this case) hampers free exercise rights.

Justice Samuel Alito and Justice Gorsuch each filed their own separate concurrences. Justice Alito argued, as he did in dissenting from the Court’s decision earlier this term in Ramos v. Louisiana, that original motivation should have no bearing on the present constitutionality of a provision of law, yet even without that consideration, the majority reached the correct conclusion in this case. Justice Gorsuch argued that the Court’s characterization of the Montana Constitution as discriminating based on “religious status” and not “religious use,” is dubious at best.

Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justice Elena Kagan joined, arguing that the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise and thus does not violate the Free Exercise Clause. The Court’s precedents establish that neutral government action is not unconstitutional solely because it fails to benefit religious exercise.

Justice Stephen Breyer filed a dissenting opinion, in which Justice Elena Kagan joined in part. Justice Breyer argued that the majority’s approach and conclusion risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. Instead, Justice Breyer opined that the Court’s decision in Locke—upholding the application of a no-aid provision in Washington State based on the conclusion that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees—controlled the outcome in this case, in which the no-aid provision was “materially similar.”

Justice Sonia Sotomayor filed a separate dissenting opinion, arguing that the Court in this case resolved a constitutional question not presented, thereby violating “Article III principles older than the Religion Clause” itself. Moreover, Justice Sotomayor continued, the Court answered incorrectly that question it should not have addressed in the first place.
Key terms:

- religious clauses
- equal protection clause
- Montana Constitution
- discrimination
- free exercise clause
- Chief Justice
- majority opinion
- strict scrutiny
- Montana Supreme Court
- Establishment Clause
- Ramos v Louisiana
- burden
- neutral government action
- entanglement
- precedent
- concurring opinion
- dissenting opinion
- Article III

From the Texas Tribune: U.S. Supreme Court rules in favor of Texas death row inmate

For our look at federalism and civil liberties in both 2305 and 2306.

The case is Moore v Texas.


- Click here for the article.

The U.S. Supreme Court ruled in favor of a Texas death row inmate Tuesday, sending his case back to the appeals court and invalidating the state's current method of determining if a death-sentenced inmate is intellectually disabled and therefore ineligible for execution. Texas' method relies on decades-old medical standards and a controversial set of factors.

The high court's 5-3 ruling in the case of Bobby Moore, a 57-year-old man who has lived on death row for more than 36 years, said Texas’ refusal to use current medical standards and its reliance on nonclinical factors violates the Eighth Amendment, which prohibits cruel and unusual punishment. Justice Ruth Bader Ginsburg wrote the opinion, with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissenting.

As the court has previously instructed, "adjudications of intellectual disability should be ‘informed by the views of medical experts.’ That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus," Ginsburg wrote.

. . . In 2014, a Texas state court used current medical standards to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.

The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 as well as several other factors to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on those factors, that Moore doesn’t have the disability.

Included in those factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie should be exempt from execution. The state has argued the reference was an “aside;” critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.

For more:

- Scotusblog: Moore v Texas.
- The decision.
- Oyez: Moore v Texas.

From the Washington Post: Supreme Court sends Virginia transgender case back to lower court

More policy change due to the change in the White House.

- Click here for the article.

The Supreme Court on Monday vacated a lower court’s ruling in favor of a Virginia transgender student after the Trump administration withdrew the federal government’s guidance to public schools about the controversial bathroom policy.

The justices were scheduled to hear the case later this month. But after the federal government’s position changed, the court said the U.S. Court of Appeals for the 4th Circuit should reconsider the dispute between the Gloucester County school board and 17-year-old Gavin Grimm.

The 4th Circuit had relied on the federal government’s guidance that school should let transgender students use the bathroom that corresponds with the student’s gender identity.

The Trump administration withdrew that guidance, which was issued by the Obama administration.

Both the school board and Grimm’s attorneys had asked the Supreme Court to let the case proceed, saying it presented a reading of the civil rights law Title IX that the court ultimately will have to settle.

Grimm, whose birth gender was female, has become a celebrated figure in the transgender-rights community because of his lawsuit, with profiles in national media. His case was thought to be an important milestone on the issue.

While the Obama administration said anti-discrimination laws required allowing transgender students to use the bathroom of their choice, the Trump administration said it needs more time to study the issue and put forward its own view of the law.

For more:

- NYT: Supreme Court Won’t Hear Major Case on Transgender Rights.
- ScotusBlog: Justices send transgender bathroom case back to lower courts, no action on same-sex marriage cake case.

ScotusBlog has a full record of the case here: Gloucester County School Board v. G.G.

From the Washington Post: The Supreme Court will examine partisan gerrymandering in 2017. That could change the voting map.

I mentioned this court case in a few classes, both 2305 and 2306. Partisan gerrymandering is still legal, more or less, but that may well change.

- Click here for the article.

In 2017, the Supreme Court will take up the issue of partisan gerrymandering. Depending on how the court rules, its decisions could have far-reaching implications for the partisan balance in the U.S. House of Representatives and state legislatures — and for the future of redistricting across the country.

Gerrymandering has helped give the Republican Party a significant advantage in Congress. Because Republicans had unified control of twice as many states as Democrats when the last congressional district maps were drawn, estimates suggest that gerrymandering before the 2012 elections cost Democrats between 20 and 41 seats in the House.

Partisan gerrymandering has become the norm in U.S. politics because the Supreme Court has declined to declare it unconstitutional. For three decades, a majority of justices have failed to identify manageable standards to determine when a plan rises to the level of an unconstitutional partisan gerrymander.

As a result, state legislators have come to believe that they can draw partisan gerrymanders so long as long as they satisfy two criteria: They do not violate one-person, one-vote standards and do not reduce the electoral fortunes of African Americans or other protected racial and ethnic groups. As a result, the 2010 round of redistricting saw partisan gerrymandering run amok in some states.

But change may be coming.

Read on.

From the U.S. Supreme Court: Lee v. Tam

In the second GDHS class this morning we discussed another free speech case, Lee v. Tam. The case also touches on the copyright clause of the U.S. Supreme Court. While the free speech clause protects the ability of people to say disparaging things, these cannot be copyrighted since that would suggest that the national government approves of it.

- Here's the transcript.
- Here's the audio.
- Here's detail from ScotusBlog.

Here is the question presented to the court:

Issue: Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

For background,

- Here is the Lanham Act
- Here is background on U.S. Trademark Law.

And here's a bit from ScotusBlog on the controversy in the case.

The debate over trademark rights and free speech has a long history. We shouldn’t forget it now, when trademark registration has become a First Amendment flashpoint. Trademark protection can promote expression, but it can also chill speech and debate. The dual nature of trademark means that sometimes limiting trademark rights – for example, by declining to register disparaging marks – actually advances First Amendment goals by curtailing private control over contested vocabulary and imagery.

In early trademark cases, courts understood that trademark claims were a form of commercial appropriation of language. Judges were accordingly skeptical about allowing private businesses to assert exclusive rights to words or phrases. Limiting expansive trademark claims was a way of keeping language in the public domain. As one court explained in 1883, the English language is “the common property of mankind,” belonging to all of us in “equal share.” Since those early days, doubts about the social benefit of robust trademark protection have faded. But the debate over who should “own” trademarked words and symbols, and to what degree, remains as relevant as ever.

In Lee v. Tam, the Supreme Court will consider a request by Simon Tam, an activist and the founder of an Asian rock band, to register his band’s name, “THE SLANTS,” as a federally protected trademark. The dispute in this case centers on a relatively obscure provision of the federal trademark statute, which denies registration to marks that “may disparage” individuals, institutions, beliefs or national symbols. Tam contends that his band’s name challenges stigmatizing stereotypes, but the U.S. Patent and Trademark Office denied registration after finding THE SLANTS disparaging to people of Asian ancestry. To Tam, the result is unconstitutional viewpoint discrimination and suppression of speech – all the more harmful and arbitrary because of his record of political activism and advocacy on behalf of Asian-American groups.

For more on viewpoint discrimination, click here.

Viewpoint discrimination is the term the Supreme Court has used to identify government laws, rules, or decisions that favor or disfavor one or more opinions on a particular controversy. For example, a government official who permitted ‘‘pro-life’’ proponents to speak on government property but banned ‘‘pro-choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Courts may also describe this constitutional requirement by saying that government laws and decisions must be ‘‘viewpoint neutral.’’ In recent decades, viewpoint discrimination has been distinguished from content or subject matter discrimination, which involves government regulation of an entire topic or subject, such as abortion, war, or sexual speech, either by punishing those who use this kind of speech (such as obscenity) or by completely excluding the subject from discussion on particular government property or in public forums.

From the U.S. Supreme Court: Expressions Hair Design v. Schneiderman

We briefly walked through this case in the first class at GDHS this morning. It involves the free speech clause of the First Amendment and pricing.

- Here's the transcript.
- Here's the audio.
- Here's detail from ScotusBlog.

This is question presented to the court:

Issue: Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).

New York does not allow different prices for cash and credit card purchases - this is commonly done for gas around here. Doing so gives you an indication - communicates to us, which is speech - of what credit card transactions cost. Is New York violating a merchant's free speech rights by limiting their ability to set different prices? Is pricing speech?

On This Day in History (ok this was originally flagged November 18) 1883: Railroads create the first time zones

This is from History.com and it touches on points I like to make in class about the interrelationship between business and the national government in the expansion of the nation, as well as the expansion of the authority of the national government. The setting of time seems to have been primarily a local matter until technological change (faster transportation) made it necessary for localities to yield this power.

Railroad companies instigated the change, which were then adopted by many state legislatures. It would later be made legal by the national government - most likely under the constitutional authority of the interstate commerce clause, though I've yet to see that stated clearly anywhere. As you'll see below, the power to oversee was given to the Interstate Commerce Commission. That's a give away.

- Click here for the article.

The need for continental time zones stemmed directly from the problems of moving passengers and freight over the thousands of miles of rail line that covered North America by the 1880s. Since human beings had first begun keeping track of time, they set their clocks to the local movement of the sun. Even as late as the 1880s, most towns in the U.S. had their own local time, generally based on “high noon,” or the time when the sun was at its highest point in the sky. As railroads began to shrink the travel time between cities from days or months to mere hours, however, these local times became a scheduling nightmare. Railroad timetables in major cities listed dozens of different arrival and departure times for the same train, each linked to a different local time zone.

Efficient rail transportation demanded a more uniform time-keeping system. Rather than turning to the federal governments of the United States and Canada to create a North American system of time zones, the powerful railroad companies took it upon themselves to create a new time code system. The companies agreed to divide the continent into four time zones; the dividing lines adopted were very close to the ones we still use today.

Most Americans and Canadians quickly embraced their new time zones, since railroads were often their lifeblood and main link with the rest of the world. However, it was not until 1918 that Congress officially adopted the railroad time zones and put them under the supervision of the Interstate Commerce Commission.

The law referenced above was the Standard Time Act of 1918, which was passed during the 65th Session of Congress after being introduced by Senator William Calder, a Republican from New York. This was the Congress responsible for declaring war on Germany. Not surprisingly the bulk of the laws passed by Congress were related to WWI. The creation of a uniform time system - along with the more controversial daylight saving provision, was considered key to the wear effort. The uniformity was far less controversial that the daylight savings component.

The 65th Congress also passed the Child Labor Act of 1919, which would be found unconstitutional in the case of Bailey v. Drexel Furniture. The law placed an excise tax on the profits of companies that employed children. The Supreme Court ruled the tax was really a penalty, which was unconstitutional. The court has since argued that this process is in fact constitutional. Time zones in the United States are currently regulated by the system put in place by the Uniform Time Act, which was passed in 1966 by the 89th Congress.

For a look at the language in the U.S. Code that relate to time zones, click here:

- 15 U.S. Code Sec. 261: Zones for standard time; interstate or foreign commerce.

For more on the Interstate Commerce Commission, which originally implemented the law, click here:

- Wikipedia: Interstate Commerce Commission.

The ICC was the first independent agency established by Congress. It exists outside the tradition executive departments, which gives it greater autonomy from the president. The ICC's jurisdiction expanded considerably over its history. It began with regulating railroads and would eventually also regulate trucking, telephone, telegraph, and wireless companies. It was commonly argued to have been captured by the railroad companies, meaning that its regulations served to enhance - not limit - the power of railroads.

It is one of the few executive agencies that have ever been terminated. This was done in the ICC Termination Act of 1995 which was passed by the 104th Congress (the Contract With American Congress) and signed by President Clinton. Its functions were shifted to the newly created Surface Transportation Board, an agency within the Department of Transportation. This includes the implementation of policies related to time zones. For detail on the purpose of the shift, click here to read President Clinton's Statement on Signing the ICC Termination Act of 1995.

From the NYT: Trump’s Supreme Court List: Ivy League? Out. The Heartland? In.

All current members are from Harvard, Yale or Columbia. That seems likely to change.

- Click here for the article.

If the list has a main theme, it is that there are plenty of good judges who went to law school at places like Notre Dame, Marquette, the University of Georgia and the University of Miami.

About half of Mr. Trump’s candidates sit on state supreme courts, and almost all those who sit on federal appeals courts do so in the heartland. (The exception is Judge Margaret A. Ryan of the United States Court of Appeals for the Armed Forces, in Washington.)

The résumés of the justices currently on the Supreme Court, by contrast, reflect a legal profession that is deeply hierarchical, obsessed with credentials and dominated by lawyers on the two coasts. Mr. Trump’s list, like his campaign, is a revolt against the elites.

At the same time, Mr. Trump’s candidates are, unsurprisingly, committed judicial conservatives. Mr. Trump credited two leading conservative policy groups — the Heritage Foundation and the Federalist Society — with helping to draw up his list.

“You had an awful lot of conservatives during the campaign who were incredibly skeptical, to put it mildly, about Donald Trump,” said John G. Malcolm, a Heritage Foundation official who suggested a number of names that appeared on the list. “But they certainly cared a lot about the Scalia vacancy and the direction of the court. And that list was a very, very sober list, and it was greatly reassuring.”

The list is a good reflection of Mr. Trump’s dual priorities, said William M. Jay, a lawyer with the firm of Goodwin Procter and a former law clerk to Justice Scalia.

“It was consistent with the message he was trying to send: that he was not going to be naming establishment choices but that the establishment might well be happy with the people he chose from Alabama and Iowa and places like that,” Mr. Jay said.

The top priority for conservatives, Mr. Malcolm said, was to avoid another disappointment like Justice David H. Souter, who was appointed by President George Bush in 1990 but whose voting record on the Supreme Court turned out to be decidedly liberal.

From ABCNews: GOP President-Elect Donald Trump Says Same-Sex Marriage Is 'Settled' Law

Obergerfells id safe, but - apparently - not Roe v Wade.

Assuming Trump has influence over either of course.

- Click here for the article.

Republican President-elect Donald Trump said he’s “fine” with same-sex marriage as the law of the land, calling the issue "settled" by the Supreme Court.

The comments – in Trump's first television interview since winning the presidency – sharply contrast with his party’s orthodoxy, his running mate’s longtime position and comments he made during the Republican primaries.

“It’s law,” he said in an interview with CBS’ "60 Minutes" that aired Sunday. “It was settled in the Supreme Court. I mean it’s done.”

“These cases have gone to the Supreme Court. They’ve been settled. And I’m – I’m fine with that,” he added.

In the same interview, when asked if he would appoint a Supreme Court justice who wants to overturn Roe v. Wade, Trump said his judges will be "pro-life," and suggested that decision could be overturned.

"If it ever were overturned, it would go back to the states," Trump said.
Women seeking abortions would have to go "go to another state" for the procedure.

The Republican Party’s official platform, ratified by the party in July, opposes same-sex marriage, condemns the Supreme Court’s rulings in Obergefell v. Hodges and United States v. Windsor, and supports proposed “religious freedom” legislation that critics say would allow businesses to deny services to gay people.

Trump’s comments about gay marriage break with the longtime position of his running mate, Indiana Gov. Mike Pence, who signed a religious freedom bill into law in 2015, but walked back on some of its language after facing backlash from across the country.

What happens to the Supreme Court after the election?

Some - not all - Republican Senators promise to block all nomination to the court if Clinton wins.

- ScotusBlog offers the following thoughts.

At Reuters, Lawrence Hurley reports that several “intriguing scenarios could unfold after Tuesday’s U.S. election to break the deadlock over filling a Supreme Court vacancy that has provoked a bitter nine-month standoff between President Barack Obama and Senate Republicans.” Burgess Everett reports in Politico that Republican Sen. David Perdue has called “plans for a unilateral blockade” of Supreme Court nominations if Hillary Clinton is elected tomorrow a “’dereliction of duty.’”At Slate, Dahlia Lithwick breaks down the Senate Republicans who have spoken out recently about the possibility of a blockade, into “two distinct teams,” listing the members of what she terms “Team Obstruction” and “Team Responsible Governance,” and hoping that the latter “team wins the day.” At Think Progress, Ian Millhiser contends that a blockade would precipitate a “constitutional crisis.” But in an op-ed in The Hill, Chris Bryant contends that an eight-member court offers advantages, observing that “the Justices are obliged to cooperate and driven to rule on narrow grounds, disposing of the actual cases that come before them while refraining from sweeping pronouncements,” and suggesting that this enforced moderation promises “in turn to diminish, over time, the intense divisiveness currently characterizing Supreme Court nominations.”

In a New York Daily News op-ed, Rick Hasen argues that the election constitutes “an all-out ideological war over the future of the Supreme Court.” Additional commentary on the court and the election comes from the editorial board of The New York Times, which argues that in “the next Congress, regardless of who wins on Tuesday, the very survival of the court as an independent body will be at stake.” More pleas to keep the Supreme Court nomination process free from partisan politics come from the editorial boards of the Chicago Sun-Times and the Boston Globe, and the Walla-Walla Union-Bulletin. In an op-ed for Bloomberg, Jonathan Bernstein argues that if “there’s ever any hope for effective conservative government in the U.S., the first job is to reclaim the Republican Party for conservatives who actually try to do the hard work of governing.”

Guess who doesn't care that its election day?

The Supreme Court.

I might be making too much of this, but they always seem to argue cases on election day. I take it as a sign that they present themselves as immune to politics. The cases they are hearing touch on issue we will raise in the sections on economic and social welfare policymaking (specifically the Fair Housing Act) - as well as items we covered in civil rights and the equal protection clause.

From ScotusBlog:

- Bank of America Corp. v. City of Miami
- Wells Fargo & Co. v. City of Miami

And a description of the case, also from ScotusBlog:

This one from the Washington Post might be more accessible.

- To recoup losses from the housing collapse, Miami pursues a novel suit.

The housing collapse of 2008 nearly broke the city of Miami. Now, its leaders have embarked on a novel and aggressive legal strategy to recoup losses from the big banks they say created the crisis with discriminatory and predatory lending practices.

It is a high-stakes effort that is being encouraged by many cities, and the banks Tuesday will ask the Supreme Court to stop it before it takes root.

Miami sued Bank of America, Wells Fargo and Citigroup under the 1968 Fair Housing Act, which bars discrimination in the sale, rental and financing of housing. The law states its purpose as providing for fair housing “throughout the United States.”

The city says that it can prove the lending institutions discriminated against Hispanic and African American residents by directing them into high-interest, risky loans. The resulting defaults destabilized Miami’s poorest neighborhoods, and the resulting loss of tax revenue sent the city to the brink of bankruptcy, they say.

In Miami’s Liberty City neighborhood, another vacant property is torn down. (Angel Valentin/For The Washington Post)

“It took us three years to really start recovering,” said Miami Commissioner Francis Suarez. “We decided unanimously as a commission that we wanted to hold the banks responsible for their lending practices, which we learned were discriminatory in nature.”

Banks have been sued by individuals and taken to task by the federal government for lending practices, but these new cases are the first in which cities are the plaintiffs and are demanding that banks be held accountable for harming their communities.
The banks counter that there is a reason such Fair Housing Act suits are novel: Congress never intended for the law to be used for such purposes.

“Municipal suits like this one were unheard of until recently, when enterprising contingency-fee counsel began pushing them,” Bank of America told the court in its brief.
The banks warn of a “trickle-down” approach that would let anyone affected by a neighborhood in decline — from the next-door neighbor to the corner dry cleaner — to sue under the act.

From ScotusBlog: Gloucester County School Board v. G.G.

The court has decided to take up the case involving the transgender student in Virginia, but will not concern itself with equal protection issues.

It's going to be much more boring.

- Click here for the article.

Issue: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

From the Washington Post: Supreme Court takes up school bathroom rules for transgender students

This happened much quicker than I thought it would.

- Click here for the article.

The Supreme Court said Friday that it will decide whether the Obama administration may require public school systems to let transgender students use bathrooms that align with their gender identity, putting the court once again at the center of a divisive social issue.

School districts across the country are split on how to accommodate transgender students amid conflicting guidance from courts, the federal government and, in some cases, state legislatures that have passed laws requiring people to use public restrooms that match the sex on their birth certificates.

The justices accepted a petition from the School Board of Gloucester County, Va., seeking to overturn a lower court’s order that 17-year-old Gavin Grimm, who was born female but identifies as male, be allowed to use the boys’ restroom during his senior year of high school.

In August, the Supreme Court voted 5 to 3 to temporarily stay that lower court’s ruling while it remained on appeal. In that order granting the stay, Justice Stephen G. Breyer said he was joining the conservative justices as a “courtesy” that would preserve the status quo while the court considered whether to accept the case.

Argued today in the Supreme Court: Buck v Davis

We discussed this briefly in 2305 today. Its - another - due process / death penalty / racial discrimination / ineffective counsel case from Houston.

- Click here for info about the case from ScotusBlog.

The defense attorney admitted evidence from a psychologists that sent his client to death row. The psychologist argued that the defendant was likely to be dangerous in the future because he was African-American. That raises its own set of issues, but the case seems to primarily be about effective counsel, and whether

Here's the narrow issue presented to the court:

Whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.

For more: Justices to consider role of racial bias in death penalty case.

A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.

A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.

Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death.

The procedural history of Buck’s case is, to put it mildly, complicated. After his conviction and death sentence were affirmed on appeal, Buck (now represented by a new lawyer) filed a motion for post-conviction relief in the Texas courts. However, the motion did not challenge the decision by Buck’s trial counsel to introduce Quijano’s opinion that, because of his race, Buck was more likely to be dangerous in the future.

A year after the post-conviction motion was filed, Texas filed a brief in the U.S. Supreme Court in which it conceded that similar statements by Quijano in another capital case violated the defendant’s “constitutional right to be sentenced without regard to the color of his skin,” and that the references to race in the defendant’s sentencing “seriously undermined the fairness, integrity, or public reputation of the judicial process.” In a press release in June 2000, the Texas attorney general announced that his office had identified six other cases – including Buck’s – in which Quijano had testified about future dangerousness based on race. The attorney general also indicated that the state would not object if the inmates in those cases “seek to overturn the death sentences based on” Quijano’s testimony.

For even more:

- Texas lawyer who never won a capital murder case calls it quits defending 'the very worst' clients.
- Texas Ends Deal With Psychologist Over Race Testimony.

And what is a Certificate of Appealability anyway?

From the Washington Post: Courts & Law Supreme Court declines to hear immigration and Redskins cases

Sometimes the court makes a decision by choosing to not make a decision - and deferring to the lower courts.

- Click here for the article.

The Supreme Court will not reconsider President Obama’s plan to shield undocumented immigrants from deportation and denied the Washington Redskins’ bid to get its trademark case on this term’s docket.

With oral arguments postponed for a day because of the Rosh Hashana Jewish holiday, the first Monday in October that marks the beginning of the new Supreme Court term became a day of rejection. The court issued a thick stack of cases that had accumulated over the summer that the justices decided not to hear.

Among the other losers: the NCAA, which had asked the court to review an appeals court ruling about its policies involving the amateur status of college football and basketball players. The issue remains alive in other court proceedings.

The administration’s request was a long shot bid to salvage what had been the biggest legal defeat of Obama’s presidency. In June, a deadlocked court failed to revive his stalled plan to shield millions of undocumented immigrants from deportation and give them the right to work legally in the United States.

The justices’ votes at the time were not announced, but the court’s liberals and conservatives were split at oral argument last spring. The tie meant that a lower court’s decision that Obama probably exceeded his powers in issuing the executive action kept the plan from being implemented.

. . . The Washington football team’s request was something of a Hail Mary pass, as well. The club’s decades-old registration of its iconic nickname was canceled by the U.S. Patent and Trade Office, which said it violated the ban on disparaging trademarks.

But the team has appealed that and a lower court’s agreement to the U.S. Court of Appeals for the 4th Circuit. The Supreme Court does not usually grant cases before proceedings in the lower court are completed.| 

The issue, though, will be covered in the court’s current term. The justices last week said it would consider the similar case of an Asian American rock band called The Slants who were denied trademark registration.

A majority of the U.S. Court of Appeals for the Federal Circuit said the law — which calls for the rejection of trademarks that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”-- violates the First Amendment’s free speech guarantee.

The U.S. Supreme Court's October 2016 term starts today.

A few links about what's on the docket, lot's on their being shorthanded.

- Supreme Court to begin new term short-handed as its ideological balance hinges on fall vote.

The Supreme Court’s new term begins Monday with the focus not on the court’s docket but on the court itself and a future that will be defined by the presidential election.

For the first time in decades, there will be only eight justices, not nine, to begin the new term. Also absent are the kind of big-ticket cases — involving immigration reform, affirmative action, abortion, same-sex marriage and the Affordable Care Act — that in recent years have catapulted the Supreme Court to the fore of American civic life.

Instead, the short-handed court has assembled a docket of more-modest cases — albeit ones that touch on contemporary controversies such as the role of race in criminal justice and politics, free speech and perhaps the treatment of transgender students.

- With one seat vacant, the Supreme Court returns.

Although the court has chosen, as of now, three dozen cases for decision during the new term, not one of those cases rises to the level of some of the major controversies that have been before it in recent terms – like the question of same-sex marriage, the fate of the broad new national health care law, attempts by state legislatures to restrict abortion rights, and, of course, the Obama immigration policy.

Perhaps the one case already scheduled for review that seems most likely to produce a deep division among the Justices – the right of religious schools to share equally in state-operated benefit programs – has been kept on hold without a hearing set for it, presumably because the court has been hoping that it would have a ninth Justice to join in deciding that case and thus avoiding a split. Issues of religious freedom have deeply divided this court, and that case stands right in the middle of that controversy.

The one area of brand-new controversy that could come before the court in the new term is the still-developing campaign to secure equal rights for transgender people. Already pending at the court is the first test case on that question, involving a high school senior in Virginia who is a transgender boy who wants to use the boy’s restroom at school. By a vote of 5-to-3, the court during the summer temporarily barred him from doing so, and it is a serious question whether the court will now be willing to step in and make a final decision on his claim of equal treatment at school.

- Supreme Court Faces Volatile, Even if Not Blockbuster, Docket.

“This term promises to be the most unpredictable one in many, many years,” saidNeal K. Katyal, a former acting United States solicitor general in the Obama administration now with Hogan Lovells.

There is no case yet on the docket that rivals the blockbusters of recent terms addressing health care, abortion or same-sex marriage. But such cases are rare, whether there are eight justices or nine.

“This term’s cases are not snoozers,” said Elizabeth B. Wydra, the president of the Constitutional Accountability Center, a liberal group. “This term features important cases about racial bias in the criminal justice system, voting rights and redistricting, immigration and detention, and accountability for big banks that engaged in racially discriminatory mortgage lending practices.”

There are, moreover, major cases on the horizon, including ones on whether a transgender boy may use the boys’ restroom in a Virginia high school and on whether a Colorado baker may refuse to serve a same-sex couple.

“If either of these cases is taken, it will almost immediately become the highest profile case on the court’s docket,” said Steven Shapiro, the legal director of the American Civil Liberties Union.

There is also the possibility that a dispute over the outcome of the presidential election could end up at the Supreme Court, as it did in 2000 in Bush v. Gore.

“That is the doomsday scenario in some respects of having an eight-member court,” said Carter G. Phillips, a lawyer with Sidley Austin. A deadlocked Supreme Court would leave in place the lower court ruling and oust the justices from their role as the final arbiters of federal law.

From Politifact: Donald Trump and Lester Holt clash over whether stop-and-frisk is constitutional in New York

More detail regarding an issue brought up in Monday's debate.

Turns out Trump and Holt are kinda right and kinda wrong.

For 2305 this illustrates the role of the federal courts in overseeing local policing, and it touches on the 4th Amendment, due process, equal protection, constitutional interpretation among other topics. For 2306, this helps us look ahead to criminal justices and the local use of police powers, in addition to federalism.

- Click here for the article.

As it turns out, Holt and Trump are both a little bit right and a little bit wrong. But Trump's more wrong than Holt.

Stop-and-frisk is the practice of a police officer stopping and questioning a person (the stop), then patting the person down for weapons (the frisk). Stops and frisks are legal, in New York and everywhere else.

In its decision in the 1968 case Terry vs. Ohio, the Supreme Court ruled 8-1 that an officer can legally stop a person if the officer has reasonable suspicion that criminal activity is afoot. And if the officer has a reasonable suspicion that this person is armed, he or she can legally frisk the person for weapons. Because of that reasonable suspicion standard, the court said these stops would be consistent with the Fourth Amendment, which protects against unreasonable search and seizure.

A 2013 case before the U.S. District Court in Manhattan, Floyd vs. City of New York, raised the issue of the constitutionality of New York City’s stop-and-frisk policies between 2004 and 2012.

Judge Shira Scheindlin found that New York City had been conductingunconstitutional stops and frisks on two grounds: Officers were stopping and frisking people without reasonable suspicion, in violation of Terry and the Fourth Amendment; and a disproportionate number of those stopped and frisked were minorities, in violation of the equal protection clause of the 14th Amendment.

"Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites," Scheindlin wrote in her opinion. "For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

So Holt was right to note that a court found New York City had an unconstitutional stop-and-frisk policy because police had been disproportionately targeting black and Hispanic people.

But the Floyd case was specific to New York City’s particular way of conducting stops and frisks between 2004 and 2012. Scheindlin did not rule all stops and frisks unconstitutional, and her findings were consistent with the Supreme Court’s decision in Terry. Scheindlin ruled that New York City could continue to conduct stops and frisks as long as they made some changes.

"Stop-and-frisk was not outlawed," said Andrew Schaffer, former deputy commissioner for legal matters for the New York Police Department and an adjunct professor at New York University Law School. The ruling only sought to correct a supposed problem of officers making stops without a reasonable suspicion of criminal activity and disproportionately stopping black and Hispanic people.

Schaffer added, "The Floyd decision in New York did not and could not overruleTerry."
"The judge made it very clear that she was not finding stop-and-frisk as a general practice unconstitutional," said David Rudovsky, a leading civil rights attorney and senior fellow at the University of Pennsylvania Law School.

So Holt’s claim — "stop-and-frisk was ruled unconstitutional in New York" — isn’t quite precise because it makes it seem as if the judge decided that all stops and frisks were unconstitutional in New York, when really her ruling said New York had to stop and frisk differently. New York cops still stop and frisk today.

But it also isn’t quite correct for Trump to call Holt’s claim "wrong" because that implies there was no finding of unconstitutionality in New York’s practices or that Scheindlin’s ruling was tossed out, when really it still stands.

From NBC News: Supreme Court Has Reasons to Dodge Trans Bathroom Case

The Supreme Court may - or may not - decide whether sexual identity is a protected category under the equal protection clause.

- Click here for the article.

The U.S. Supreme Court is set to decide within weeks whether to hear a major transgender rights case for the first time, a dispute involving which bathroom a Virginia high school student can use, but the justices have reasons to duck the issue.

The case involves a 17-year-old transgender student named Gavin Grimm, who was born female but identifies as male and is mounting a legal challenge to gain the right to use the boys' bathroom at his public high school in Gloucester County, Virginia.

The local school board is asking the justices to hear its appeal of an April 19 ruling by the Richmond-based 4th U.S. Circuit Court of Appeals that found that transgender students are protected under U.S. laws that bar sex-based discrimination.

If the high court refuses to hear the case, the justices would leave in place the groundbreaking appeals court ruling in favor of transgender rights that Grimm could use the bathroom of the student's choice. If the justices hear it, it would be one of the biggest cases of the 2016-17 term that opens Oct. 3.

The Supreme Court remains shorthanded with eight justices, split with four liberals and four conservatives, following the Feb. 13 death of Antonin Scalia. Legal experts say the court may have an incentive to dodge the issue, the latest front line in the battle over lesbian, gay, bisexual and transgender rights.

The high court so far has shown an inclination for its new term toward taking up technical, narrow cases, such as several on intellectual property rights, while it remains down one justice. This may be because the court is eager to avoid issuing 4-4 deadlocked rulings, which happened on four occasions after Scalia's death.

. . . The Supreme Court often lets novel legal issues like transgender bathroom rights percolate in lower courts before taking a case, as it did with gay marriage before ruling in 2015 to allow it nationwide.

The Supreme Court also frequently refuses to take cases in which the various regional federal appeals courts have not issued conflicting rulings. The ruling by the 4th U.S. Circuit Court of Appeals was the first of its kind.

- Click here for the 4th Circuit Court's decision.

For more on the case:

- Reason: US 4th Circuit Rules in Favor of Trans Teen; May Impact North Carolina Law.
- The Guardian: Transgender student in Virginia wins key fight on bathroom access.
- The Atlantic: A Transgender-Rights Ruling Blocked.
- ACLU: G.G. v. Gloucester County School Board.

From the Texas Tribune: Texas Appeals Voter ID Rulings to U.S. Supreme Court

For our look at federalism, as well as voting rights.

- Click here for the article.

Texas wants to take its voter identification battle to the U.S. Supreme Court.

Texas Attorney General Ken Paxton on Friday asked the justices to hear his arguments about why the state’s photo ID requirements for voting do not discriminate against Hispanics and African-American voters.

“Safeguarding the integrity of our elections is essential to preserving our democracy,” the Republican said in a statement. "Texas enacted a common-sense voter ID law and I am confident that the U.S. Supreme Court will ultimately reinstate it.”

Texas officials say the voter ID law bolsters the integrity of elections by preventing voter fraud, which Gov. Greg Abbott has called "rampant." But the U.S. Department of Justice and other plaintiffs — backed by court rulings — have pointed out that in-person voter fraud is incredibly rare.

In July, U.S. 5th Circuit Court of Appeals affirmed lower court rulings that the 2011 law, considered the nation’s strictest, violates the federal Voting Rights Act. In a 9-6 ruling, the conservative court agreed that narrowly tailored requirements disproportionately affected minority voters — those who were less likely to hold one of seven types of photo ID. Those include: a state driver's license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S citizenship certificate or an election identification certificate.

Experts have testified that more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote.

Paxton is appealing to a Supreme Court that still has just eight members, following the February death of Justice Antonin Scalia. If the justices agree to hear the case — and if they do so without a replacement for Scalia — Paxton would need five votes to overturn the appeals court ruling. A 4-4 split would allow it to stand.