(Note:Please excuse this almost-late, sometimes-technicality-filled post; the Court—I admit, as was expected—went bonkers with opinions this week, meaning my undergraduate brain was ground to a pulp late-night after late-night as I read 577 pages of law and wrote over 7500 words here to summarize. But all in the spirit of learning, though—right? Plus, we get to look forward to this again next week. Yippee!)
Cue the commentator’s announcement: “On the final lap, here they come into turn four, all bunched up!” Indeed. We are into the final two weeks of O.T. 2018, and the Court released a dozen—yes, a dozen—opinions this week, grouped into fours on Monday, Thursday, and Friday. In addition, the Court sent back to the lower court a hot-button, LGBTQ vs. religious liberty case from Oregon; granted and consolidated five cases concerning President Barack Obama’s appointments to Puerto Rico’s financial oversight board; and denied a petition for a stay of execution. All told, I will do my level best to briefly canvass the bevy of activity that took place this week at 1 First St. NE, Washington D.C. But—forgive the pun—don’t bet on this week’s “brief” to be very brief. Here’s your brief for the week of June 17.
Only a few blocks from downtown Bladensburg, Maryland, towers a 32-foot-tall Latin cross. The “Peace Cross,” as it is called, has stood there since 1918, when residents of Prince George’s County sought to build a memorial commemorating the soldiers from that area who died in World War I. From 1925–1961, the local American Legion owned the cross, emblazoning its emblem on the cross’ center and placing a plaque at its base with the words “Valor,” “Endurance,” “Courage,” and “Devotion,” as well as the names of 49 fallen soldiers and a quote from President Woodrow Wilson. Since 1961, the Peace Cross has been under the ownership of the State of Maryland, who has used public funds for maintenance and upkeep when necessary. But in 2014, the American Humanist Association (among others) challenged the constitutionality of the Peace Cross, arguing it violates the Establishment Clause of the First Amendment. The question must then be asked: Are they right?
The Fifth Amendment’s Double Jeopardy Clause protects us against being charged and convicted of the same crime twice. But the Clause’s dual-sovereignty doctrine allows for successive prosecutions if conduct violates the laws of two separate sovereigns (i.e., state law and federal law). This term, in Gamble v. United States, the Supreme Court considered whether to jettison the dual-sovereignty doctrine as contrary to the Double Jeopardy Clause. On Monday, June 17, it declined to do so, a now-familiar decision in the Court’s 170-year-old Double Jeopardy Clause jurisprudence. Here is my review of Gamble v. United States.
Last week, I noted that the Court hardly grabbed a headline (despite four decisions in argued cases and three certiorari grants), since its proceedings concerned less-contentious and more-technical matters. Was this week any different? Well, no. Again, Court nuts like myself may enjoy this week’s brief, which covers three more decisions and five cert. grants, a smidgen more than the lay reader. But on the bright side, with twenty-four cases in O.T. 2018 still yet to be decided, the Court is teeing up an action-packed, blow-the-doors-off finale to end its term here in the next fourteen days. At any rate, here is your brief for the week of June 10.
This week, the Supreme Court published decisions in four argued cases and added three cases to its docket for next term. But despite this high number of actions on cases, the Court barely grabbed a headline all week. This is because those four decisions and three certiorari grants all concern more-technical matters: administrative law, bankruptcy, civil procedure, among others. So, for Court nuts like myself and for those looking to take a deep dive into a jargon-filled legal discussion, here’s your brief for the week of June 3 (I’ll try to use as little legalese as possible; key word: “try“).
Ladies and gentlemen, welcome to the Court’s sprint to the finish—a month-long, action-packed stretch during which the Court clears away its docket before the start of its summer recess at the end of June. This means the Court begins releasing multiple opinions each week, including its sweeping, hot-button cases which it often saves for last. This week kicked that sprint off; even those ambivalent to the Court probably saw news headlines about the Court’s decision in the case regarding an Indiana abortion law, which came in addition to three more decisions in argued cases. And, after a reflective, patriotic Memorial Day, it’s only fitting to survey the proceedings of one of the branches of our federal government. All in all, here is your brief for the week of May 27.
Following the three decisions it issued last week, the Court issued another three decisions this week, in addition to granting a case for next term. On Monday, at 9:30am EDT, the Court released Orders from last Thursday’s private conference, including one grant of certiorari and two dissenting opinions relating to denials of certiorari. Then, at 10:00am EDT, the Court released its decision in three argued cases: one involving the U.S. Bankruptcy Code, one concerning the effect of Wyoming’s statehood on the 1868 Treaty between the federal government and the Crow Tribe, and one about drug-preemption cases concerning the interaction between pharmaceutical companies and the Food and Drug Administration. After a quiet Tuesday and Wednesday, the Court met for its weekly private conference on Thursday, before releasing on Friday stays on lower-court decisions in partisan gerrymandering cases. Here is your brief for the week of May 20.
(Heads up: It’s a long one.) While Tuesday through Friday were quiet days at the Court, Monday landed with a bang. The Court released decisions in three argued cases: First, freshman Justice Brett Kavanaugh sided with the Court’s four more-liberal Justices and affirmed a Ninth Circuit ruling that a federal antitrust lawsuit against tech giant Apple may proceed. Next, Justice Clarence Thomas wrote for a 5:4 majority that a 1979 Supreme Court decision was wrongly decided, and was therefore overruled. Finally, Justice Thomas wrote another opinion, this time a unanimous one concerning a statute-of-limitations question for “whistleblower” suits under the False Claims Act. In addition, while the Court did not add any new cases for next term, many of the Justices felt the need to concur in, or dissent from remands or denials of certiorari. So, after a marked change from a tranquil past few weeks, here is your brief for the week of May 13.
There is a principle in the legal field called “stare decisis.” From Latin, it translates literally to “stand by what is decided.” In layman’s terms—and in law—it means that a court ought to apply the same reasoning as it did in a prior case, and ought to rule analogously to its earlier decisions in similar cases. It is not a set-in-stone policy that entertains no deviation; the Supreme Court has, throughout its history, overruled a few dozen of its decisions. Think of Plessy v. Ferguson in 1896, in which the Court held that racial segregation was constitutional, versus Brown v. Board of Education of Topeka, Kansas in 1954, in which it held that racial segregation was unconstitutional. On Monday, the Court added one to that list, overruling one of its cases from 1979. While the subject matter of the case (state sovereign immunity) may sound anemic and technical, this Court’s demonstration—that it is not averse to overruling an earlier case—is anything but. For the ardent Court-watcher, you may remember that the question of whether the Court will overrule Roe v. Wade (the case in which the Court recognized a woman’s right to privacy in her desire to obtain an abortion) was omnipresent during the confirmation hearing of Justice Brett M. Kavanaugh. And while state sovereign immunity has virtually nothing to do with abortion, the five-member conservative bloc of the Court has now hinted that it is open to deviating from stare decisis. Here is my analysis of the Court’s decision on Monday in Franchise Tax Board of California v. Hyatt.
This week was a dead week for the Court. It did not release either Orders or Opinions on Monday, and it concluded all oral arguments for the term two weeks ago. The Court’s only proceedings consisted of its weekly private conference on Thursday. Nonetheless, I review some of the petitions the Court likely discussed in its conference, look ahead to next week (there is a possibility of Opinions on Monday!), and list some media references for further reading on the Court. Here is your Brief for the week of May 6.