SCOTUS and Other Big Cases

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Nebby
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SCOTUS and Other Big Cases

Post by Nebby » Thu Jan 25, 2018 3:50 pm

Last edited by Nebby on Sun Nov 25, 2018 4:04 pm, edited 2 times in total.

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Desert Fox
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Re: SCOTUS, SSC, & other big cases mega-thread

Post by Desert Fox » Thu Jan 25, 2018 4:01 pm

come on scotus, lets make IPR unconstitutional

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Nebby
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SCOTUS and Other Big Cases - Megathread

Post by Nebby » Wed Jan 31, 2018 3:12 pm

It's about time to start!

Today, the DC Cir. upheld CFPB's single-director with removal protection structure (i.e., it's headed by one person who can't be removed by the whim of the President, but only "for cause"), which opponents had alleged was unconstitutional. Similar bodies, like the SEC, have directors with removal protection, but they are all commissions with multiple directors, whereas the CFPB was the first of its kind to be headed by a single person with removal protection.

Here's the opinion: https://assets.documentcloud.org/docume ... pinion.pdf

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Re: SCOTUS and Other Big Cases - Megathread

Post by somelawperson » Wed Jan 31, 2018 3:14 pm

Subscribed to read the hot takes

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Re: SCOTUS and Other Big Cases - Megathread

Post by Borhas » Mon Feb 05, 2018 2:30 pm

SCOTUS not accepting review of PA gerrymander case (state law grounds) which is a huge if obvious decision

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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Thu Feb 15, 2018 11:41 am


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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Thu Feb 15, 2018 12:52 pm

http://www.ca4.uscourts.gov/opinions/172231.P.pdf

Excerpt:
In the extraordinary case before us, resolution of that question presents little
difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual
basis” for its actions, Din, 135 S. Ct. at 2140 (Kennedy, J., concurring in the judgment),
here the Government’s proffered rationale for the Proclamation lies at odds with the
statements of the President himself. Plaintiffs here do not just plausibly allege with
particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer
undisputed evidence of such bias: the words of the President. This evidence includes
President Trump’s disparaging comments and tweets regarding Muslims; his repeated
proposals to ban Muslims from entering the United States; his subsequent explanation that
he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims
directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and
finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but
which President Trump and his advisors described as having the same goal as EO-1 and
EO-2. See IRAP I, 857 F.3d at 591; see, e.g., J.A. 168, 756, 779, 791, 794, 808–12, 815–
17, 820.

The President’s own words—publicly stating a constitutionally impermissible
reason for the Proclamation—distinguish this case from those in which courts have found
that the Government had satisfied Mandel’s “bona fide” prong. In Bustamante v. Mukasey,
for example, the court held that “the reason given by the consular official in support of the
visa denial was . . . bona fide” because there was “no reason to believe that the consular
official acted . . . in anything other than good faith” in relying on information that the visa
applicant “was involved in drug trafficking.” 531 F.3d 1059, 1063 (9th Cir. 2008).
Similarly, in Cardenas v. United States, the court held that a consular official “provided a
bona fide factual reason” for denying a visa, and plaintiff made no allegations to “raise a
plausible inference that the officer acted in bad faith.” 826 F.3d 1164, 1172 (9th Cir. 2016).
In no prior cases have plaintiffs alleged—let alone offered undisputed evidence—that any
government official made public statements contradicting the asserted “bona fide” reason
for the governmental action.13 Plaintiffs have done so here.14

This, of course, does not mean that Plaintiffs have established that the Proclamation
violates the Constitution. As we explained in IRAP I, 857 F.3d at 592–93, to do so,
Plaintiffs must show that the Government cannot meet the test set forth in Lemon v.
Kurtzman, 403 U.S. 602 (1971). To prevail under Lemon, a governmental entity must show
that its challenged action (1) “has a secular legislative purpose,” (2) with “its principal or
primary effect . . . one that neither advances nor inhibits religion,” and (3) which does “not
foster ‘an excessive government entanglement with religion.’” Lemon, 403 U.S. at 612–
13 (quoting Walz, 397 U.S. at 674). Moreover, the Government must satisfy all three
prongs of Lemon to fend off an Establishment Clause challenge. Edwards v. Aguillard,
482 U.S. 578, 583 (1987).

Plaintiffs’ challenge centers on the first prong. They maintain that the Government
has failed to demonstrate that the Proclamation “has ‘a secular legislative purpose’” that is
“genuine, not a sham, and not merely secondary to a religious objective.” McCreary, 545
U.S. at 860, 864 (quoting Lemon, 403 U.S. at 612). To meet this requirement, the
Government must show that the primary purpose, not just a purpose, of the Proclamation
is secular. See Edwards, 482 U.S. at 594.

The Supreme Court has instructed that, to determine the primary purpose of a
challenged government action, judges must view the challenged government action as a
reasonable “objective observer.” McCreary, 545 U.S. at 862. To that end, when a court
examines the purpose of a challenged government action, it acts as an “objective observer”
to discern the “official objective . . . from readily discoverable fact, without any judicial
psychoanalysis of the drafter’s heart of hearts.” Id. In this role, a court must look to
“openly available data” and make a “commonsense conclusion” to determine whether a
“religious objective permeated the government’s action.” Id. at 863. The court should
examine the “historical context” of the government action and the “specific sequence of
events” leading to the government action. Edwards, 482 U.S. at 595.

The Government maintains that the Proclamation’s facial neutrality establishes that
it is “not intended to discriminate on the basis of religion.” First Br. 43. But even if the
Proclamation’s “stated objective is religiously neutral,” that cannot be “dispositive” as “the
entire premise of our review under Lemon is that even facially neutral government actions
can violate the Establishment Clause.” IRAP I, 857 F.3d at 595. No “reasonable observer”
would accept such a “transparent claim to secularity” without also considering context and
history. See McCreary, 545 U.S. at 863–84, 869. The President’s own statements provide
the relevant history and context here.

Perhaps in implicit recognition of the rawness of the religious animus in the
President’s pre-election statements,15 the Government urges us to disregard them. This is
a difficult argument to make given that the President and his advisors have repeatedly relied
on these pre-election statements to explain the President’s post-election actions related to
the travel ban. See, e.g., J.A. 1502–03. And, in McCreary, the Supreme Court reminded
us that “the world is not made brand new every morning.” McCreary, 545 U.S. at 866.
Because “reasonable observers have reasonable memories,” these statements certainly
provide relevant context when examining the purpose of the Proclamation. Id. However,
we need not and thus do not rely on pre-election statements in assessing the
constitutionality of the Proclamation.

We need not do so because the President’s inauguration did not herald a new day.
Rather, only a week after taking office, President Trump issued EO-1, which banned the
entry of citizens of six Muslim majority countries, provided exemptions for Christians, and
lacked any asserted evidence indicating a genuine national security purpose. The very next
day, January 28, 2017, Rudy Giuliani, an advisor to President Trump, explained that
EO-1’s purpose was to discriminate against Muslims. J.A. 808–10, 815–16. A reasonable
observer could certainly conclude that in banning entry into the United States of 180
million Muslims, approximately 10% of the world Muslim population, EO-1 was crafted
to deliver, as Giuliani said, on President Trump’s promise to “ban Muslim immigration to
the United States.” See J.A. 809, 820. This is particularly so given that every federal judge
who considered the matter enjoined EO-1, finding that it likely violated the Constitution.

Shortly after issuance of these injunctions of EO-1, President Trump issued EO-2,
which he and his advisors characterized as being substantially similar to EO-1. The
President described EO-2 as “a watered down version of the first order.” J.A. 779. Senior
Policy Advisor Stephen Miller similarly explained that the changes to EO-2 were “mostly
minor technical differences,” and promised that they would result in “the same basic policy
outcomes for the country.” J.A. 756. Then-White House Press Secretary Sean Spicer
confirmed that “[t]he principles of the [second] executive order remain the same.” J.A.
168. We subsequently found EO-2 also impermissibly motivated by religion, and upheld
an injunction of it. IRAP I, 857 F.3d 554.

In the months that followed, the President continued to express his desire to return
to “the original Travel Ban,” rather than “the watered down, politically correct version” in
EO-2. J.A. 791. On June 5, 2017, President Trump stated that the “Justice Dept. should
ask for an expedited hearing of the watered down Travel Ban before the Supreme Court -
& seek much tougher version!” and that “The Justice Dept. should have stayed with the
original Travel Ban, not the watered down, politically correct version they submitted to
[the Supreme Court].” Id. (statements issued via Twitter). The very next day, then-White
House Press Secretary Spicer explained that President Trump’s tweets are “official
statements by the president of the United States.” J.A. 794, 1521. Only nine days before
issuing the Proclamation, President Trump tweeted, “The travel ban into the United States
should be far larger, tougher and more specific-but stupidly, that would not be politically
correct!” J.A. 832.

The President also continued to express what any reasonable observer could view
as general anti-Muslim bias. In an August 17, 2017, tweet, the President endorsed an
apocryphal story involving General Pershing and a purported massacre of Muslims with
bullets dipped in a pig’s blood, advising people to “study what General Pershing . . . did
to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” J.A.
806. On November 29, 2017, President Trump retweeted three disturbing anti-Muslim
videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes
teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on
crutches!” J.A. 1497–99. The three videos were originally tweeted by an extremist
political party whose mission is to oppose “all alien and destructive politic or religious
doctrines, including . . . Islam.” J.A. 1508. When asked about the three videos, President
Trump’s deputy press secretary Raj Shah responded by saying that the “President has been
talking about these security issues for years now, from the campaign trail to the White
House” and “the President has addressed these issues with the travel order that he issued
earlier this year and the companion proclamation.” J.A. 1502–03. The Government does
not—and, indeed, cannot—dispute that the President made these statements. Instead, it
argues that the “statements that occurred after the issuance of EO-2 do not reflect any
religious animus” but reflect “the compelling secular goal of protecting national security
from an amply-documented present threat.” First Br. 52. We cannot agree.

Rather, an objective observer could conclude that the President’s repeated
statements convey the primary purpose of the Proclamation—to exclude Muslims from the
United States. In fact, it is hard to imagine how an objective observer could come to any
other conclusion when the President’s own deputy press secretary made this connection
express: he explained that President Trump tweets extremist anti-Muslim videos as part of
his broader concerns about “security,” which he has “addressed . . . with . . . the
proclamation.” J.A. 1502–03.

The Government correctly points out that the President’s past actions cannot
“forever taint” his future actions. See McCreary, 545 U.S. at 874; First Br. 18. President
Trump could have removed the taint of his prior troubling statements; for a start he could
have ceased publicly disparaging Muslims. But “an implausible claim that governmental
purpose has changed should not carry the day in a court of law any more than in a head
with common sense.” McCreary, 545 U.S. at 874. In fact, instead of taking any actions to
cure the “taint” that we found infected EO-2, President Trump continued to disparage
Muslims and the Islamic faith.

The Government unconvincingly claims that the substantive differences between
the Proclamation and EO-1 and EO-2 reflect the elimination of any anti-Muslim bias. To
be sure, the Proclamation does differ in some respects from the previous Executive Orders.
For example, the Proclamation bans citizens from two non-majority Muslim countries,
North Korea and Venezuela. Although the Proclamation affects only very few persons
from those countries as opposed to the many tens of thousands from the other Muslimmajority
countries, the Government asserts that “[t]he inclusion of those [two] nonMuslim-majority
countries in the Proclamation underscores [a] religion-neutral purpose.”
First Br. 50. Again, we disagree. In McCreary, the Supreme Court found that despite the
court-ordered addition of secular texts to a twice-challenged display of the Ten
Commandments in state courthouses, “[n]o reasonable observer could swallow the claim
that the Counties had cast off the objective so unmistakable in the earlier displays.” 545
U.S. at 872. Here, a reasonable observer could hardly “swallow the claim” that the addition
of North Korea and Venezuela to the twice-enjoined travel ban was anything more than an
attempt to “cast off” the “unmistakable” religious objective of the earlier executive orders.
See id.

Nor does the “months-long” “multi-agency review,”16 First Br. 43, 47, on which the
Proclamation assertedly rests, establish that its primary purpose is secular. Although in its
briefs the Government repeatedly invoked this review, the Government chose not to make
the review publicly available and so provided a reasonable observer no basis to rely on the
review. Perhaps in recognition of this, at oral argument before us the Government
expressly disavowed any claim that the review could save the Proclamation. Instead, the
Government conceded that the Proclamation rises and falls on its own four corners. Oral
Arg. at 32:27–33:00. Even if we considered the review, we could not conclude that it
demonstrates that the Proclamation has a secular purpose. This is because the criteria
allegedly used in the review to identify problematic countries lie at odds with the list of
countries actually included in the Proclamation.17

Like the district court, we do not note “the apparent disconnect between the
identified problems” in the review and “the broad, nationality-based travel ban to evaluate
the merits” of the Proclamation as a policy. See IRAP v. Trump, 265 F. Supp. 3d at 626–
27. Rather, we do so “only to assess whether the Proclamation persuasively establishes
that the primary purpose of the travel ban is no longer religious animus.” See id. The
contradiction between what the Proclamation says—that it merely reflects the results of a
religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s
proffered purpose, and undermines the Government’s argument that its multi-agency
review cured any earlier impermissible religious purpose. See The Florida Star v. B.J.F.,
491 U.S. 524, 540 (1989).

In sum, the face of the Proclamation, read in the context of President Trump’s
official statements, fails to demonstrate a primarily secular purpose. To the objective
observer, the Proclamation continues to exhibit a primarily religious anti-Muslim
objective.

Our constitutional system creates a strong presumption of legitimacy for
presidential action and we often defer to the political branches on issues related to
immigration and national security. But the disposition in this case is compelled by the
highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the
United States has openly and often expressed his desire to ban those of Islamic faith from
entering the United States. The Proclamation is thus not only a likely Establishment Clause
violation, but also strikes at the basic notion that the government may not act based on
“religious animosity.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 532, 535 (1993).

We have long recognized that “[o]ur jurisprudence in this area is of necessity one
of line-drawing, of determining at what point [an individual’s] rights of religious freedom
are infringed by the State.” Lee v. Weisman, 505 U.S. 577, 598 (1992). And the line we
draw “between the permissible and the impermissible is one which accords with history
and faithfully reflects the understanding of the Founding Fathers.” Schempp, 374 U.S. at
294 (Brennan, J., concurring). We therefore agree with the district court that Plaintiffs
have demonstrated that they will likely succeed on the merits of their Establishment Clause
claim.

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:[]

Post by not very fatduck » Thu Feb 15, 2018 2:33 pm

:[]

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Nebby
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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Fri Feb 16, 2018 7:31 pm


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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Tue Feb 20, 2018 11:15 pm


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Supreme Court watch thread

Post by stego » Thu Feb 22, 2018 11:33 am

PBS Newshour: the 3 Supreme Court cases you should be watching closely this month

Some decisions we're waiting for:
PBS wrote:
  • Do arbitration clauses in employment contracts that prohibit class or collective actions by workers violate federal labor law?
  • Was Wisconsin’s redistricting plan for state legislative districts an unconstitutional partisan gerrymander?
  • Does Ohio’s process for updating its voter registration rolls violate the National Voter Registration Act and the Help America Vote Act?
  • Does the Fourth Amendment prohibit the warrantless search and seizure of someone’s cell phone location data over the course of 127 days?
  • May Congress, consistent with the Constitution, prohibit states from authorizing sports-gambling schemes?
  • Does a Colorado anti-discrimination law violate the First Amendment speech and religion rights of a baker who refused, on religious grounds, to make a wedding cake for a same-sex couple?
The main three cases covered in the article:
Janus v. American Federation of State, County and Municipal Employees - should the court overrule Abood v. Detroit Board of Education and find that "fair share fees" paid by non-union members to public sector unions are unconstitutional?

United States v. Microsoft - does the Stored Communications Act allow the government to seize e-mails with a warrant that are stored on servers overseas?

Minnesota Voters Alliance v. Mansky - does Minnesota's law against wearing political apparel to the polls violate the First Amendment?


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Re: Supreme Court watch thread

Post by stego » Thu Feb 22, 2018 11:38 am

pancakes3 wrote:
Thu Feb 22, 2018 11:36 am
viewtopic.php?f=27&t=468
How silly of me to think that Nebby hadn’t already made this thread. Mods pls merge

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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Sat Feb 24, 2018 11:04 pm

Surprised anyone would think otherwise


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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Mon Feb 26, 2018 9:59 am

Supreme Court denies petition to review district court order requiring the Trump Administration to continue accepting DACA renewals.


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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Mon Feb 26, 2018 10:08 am

Second Circuit, sitting en banc, overturns its prior precedent and finds that Title VII prohibits discrimination based on sexual orientation.




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Re: SCOTUS, SSC, & other big cases mega-thread

Post by BlendedUnicorn » Mon Feb 26, 2018 10:30 am

RIP public sector unions

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Desert Fox
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Re: SCOTUS, SSC, & other big cases mega-thread

Post by Desert Fox » Mon Feb 26, 2018 10:46 am

BlendedUnicorn wrote:
Mon Feb 26, 2018 10:30 am
RIP public sector unions
This would make TrumpOTUSy a net positive.

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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Mon Feb 26, 2018 5:51 pm


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Re: SCOTUS, SSC, & other big cases mega-thread

Post by BlendedUnicorn » Tue Feb 27, 2018 12:49 pm

Desert Fox wrote:
Mon Feb 26, 2018 10:46 am
BlendedUnicorn wrote:
Mon Feb 26, 2018 10:30 am
RIP public sector unions
This would make TrumpOTUSy a net positive.
If Baude and Volkh are right, case is a win/win from my POV. Either unions survive or we have SCOTUS precedent to attack CLE requirements:

https://reason.com/assets/db/15163984497556.pdf

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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Wed Mar 07, 2018 2:21 pm



Opinion available here:
http://www.opn.ca6.uscourts.gov/opinion ... 45p-06.pdf

Pertinent part:
Title VII prohibits employers from “discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
“[A] plaintiff can establish a prima facie case [of unlawful discrimination] by presenting direct
evidence of discriminatory intent.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.
2000) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion)).
“[A] facially discriminatory employment policy or a corporate decision maker’s express
statement of a desire to remove employees in the protected group is direct evidence of
discriminatory intent.” Id. (citation omitted). Once a plaintiff establishes that “the prohibited
classification played a motivating part in the [adverse] employment decision,” the employer then
bears the burden of proving that it would have terminated the plaintiff “even if it had not been
motivated by impermissible discrimination.” Id. (citing, inter alia, Price Waterhouse, 490 U.S.
at 244–45).

Here, the district court correctly determined that Stephens was fired because of her failure
to conform to sex stereotypes, in violation of Title VII. R.G. & G.R. Harris Funeral Homes,
Inc., 201 F. Supp. 3d at 850 (“[W]hile this Court does not often see cases where there is direct
evidence to support a claim of employment discrimination, it appears to exist here.”). The
district court erred, however, in finding that Stephens could not alternatively pursue a claim that
she was discriminated against on the basis of her transgender and transitioning status.
Discrimination on the basis of transgender and transitioning status is necessarily discrimination
on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral
Home violated Title VII by firing Stephens because she is transgender and transitioning from
male to female.

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Re: SCOTUS and Other Big Cases - Megathread

Post by Mr. Peanutbutter » Sat Mar 17, 2018 9:02 pm

lots of recent BK cases you should highlight, nebby

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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Sun Mar 18, 2018 2:11 am

Mr. Peanutbutter wrote:
Sat Mar 17, 2018 9:02 pm
lots of recent BK cases you should highlight, nebby
Not my wheelhouse. Please contribute!

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Re: SCOTUS and Other Big Cases - Megathread

Post by Nebby » Tue Mar 27, 2018 9:04 pm


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Re: SCOTUS and Other Big Cases - Megathread

Post by minnbills » Wed Apr 04, 2018 4:45 pm

Mr. Peanutbutter wrote:
Sat Mar 17, 2018 9:02 pm
lots of recent BK cases you should highlight, nebby
Merit Consulting FTW

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