October

Court releases October calendar

July 2, 2019 by admin Leave a Comment

With all the decisions from October Term 2018 now released, the Supreme Court began to look ahead to the fall today, releasing its oral argument calendar for October. The justices will tackle one of the highest-profile issues of the term almost immediately, when they hear oral argument in a trio of cases involving whether federal employment-discrimination laws apply to LGBT employees.

During the second week of the October sitting, the justices will hear oral argument in a group of cases involving the constitutionality of appointments to the financial oversight board created to get Puerto Rico back on its feet. The court only announced on June 20 that it would review these cases, but they have been expedited for oral argument. The justices will close out the sitting with the oral argument in the case of Lee Boyd Malvo, who was sentenced to death without the possibility of parole for his role in the notorious wave of sniper shootings in the Washington, D.C., area in 2002.

The justices will hear oral argument in 14 cases in the October sitting. However, because some of those cases are consolidated, they will hear just nine hours of argument, including two relatively rare afternoon arguments. The sitting (which normally comprises six days) will have just four days: October 14 is a legal holiday – Columbus Day – and there are also no arguments on October 9, presumably (although the calendar does not say so explicitly) in observance of Yom Kippur. The full list of cases slated for the October calendar follows the jump.

Kahler v. Kansas (Oct. 7): Whether the Constitution allows a state to abolish the insanity defense.

Peter v. NantKwest (Oct. 7): Whether an unsuccessful patent applicant who wants a federal district court to review the U.S. Patent and Trademark Office’s denial of his patent must pay the expenses for USPTO employees, including attorneys.

Ramos v. Louisiana (Oct. 7): Whether the Sixth Amendment’s guarantee of a unanimous jury applies to the states.

Bostock v. Clayton County, Georgia and Altitude Express v. Zarda (consolidated for one hour of oral argument) (Oct. 8): Whether the federal ban on employment discrimination “because of sex” applies to discrimination based on sexual orientation.

R.G. & G.R. Harris Funeral Homes v. EEOC (Oct. 8): Whether federal employment discrimination laws prohibit discrimination against transgender people.

Financial Oversight Board v. Aurelius Investment, consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment and UTIER v. Financial Oversight Board (Oct. 15): Challenge to the constitutionality of appointments to Puerto Rico’s financial oversight board.

Kansas v. Garcia (Oct. 16): Whether federal immigration laws trump a state prosecution for identity theft.

Rotkiske v. Klemm (Oct. 16): Whether the statute of limitations under the Fair Debt Collection Practices Act is paused until the plaintiff discovers the basis for his lawsuit.

Mathena v. Malvo (Oct. 16): Whether the Supreme Court’s decision in Miller v. Alabama, holding that the Constitution’s bar on cruel and unusual punishment prohibits mandatory sentences of life without parole for juveniles, applies only when life-without-parole sentences are mandatory.

This post was originally published at Howe on the Court.

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Final Stat Pack for October Term 2018

June 29, 2019 by admin Leave a Comment

The Supreme Court term is now complete, resolving cases that had generated months of speculation. Chief Justice John Roberts wrote majority opinions in two of the most anticipated decisions of the term, Department of Commerce v. New York and Rucho v. Common Cause, bringing his total majority-opinion authorship count to seven. Other justices wrote six to eight majority opinions each. The justice who wrote the most total opinions this term was Justice Clarence Thomas with 28, including eight majority opinions, 14 concurrences and six dissents.

With Justice Brett Kavanaugh joining the Supreme Court in October, much of the discussion this term has centered on how the new justice would fit in on the court and mesh with the other sitting justices. If finding agreement was his goal, Kavanaugh seems to have done an effective job. Kavanaugh had the highest frequency in the majority of the justices, at 91 percent. Roberts was second highest at 85 percent. Kavanaugh and Roberts also shared the highest agreement level for any justice pairing this term, at 94 percent. The second-highest agreement level was between Justices Ruth Bader Ginsburg and Sonia Sotomayor, who agreed in 93 percent of their votes.

While Kavanaugh shared high agreement levels with several of the other more conservative justices on the Supreme Court, his agreement levels with some of the more liberal justices were on the high side as well. Kavanaugh’s votes aligned with Justice Samuel Alito’s 91 percent of the time and his agreement level with Thomas was at 80 percent. Below this, Kavanaugh agreed equally often with Justices Stephen Breyer, Elena Kagan and Neil Gorsuch, at 70 percent apiece. Kavanaugh’s agreement level with Gorsuch was on the very low end of the scale when we look at agreement levels between two justices appointed by the same president in their first full term together over the last half century.

Turning to Gorsuch, he is the conservative justice who sided with the more liberal justices in the most five-vote majority decisions this term, with four. Each of the other conservative justices, including Kavanaugh, voted with the more liberal justices in one five-vote majority, for a total of eight decisions. The five more conservative justices voted together eight times in five-vote majorities, making for the same number of 5-4 (or 5-3) decisions when five conservatives were in the majority as when four liberal justices and one more conservative justice were in the majority.

Gorsuch authored three 5-4 decisions this term, including two in which the four more liberal justices were also in the majority — United States v. Haymond and United States v. Davis. In terms of his agreement levels, Gorsuch’s highest for the term was with Thomas, at 81 percent. His agreement with Roberts was substantially lower, at 68 percent.

When we look at the justices’ total opinion-page output for the term, Gorsuch was at the top. Gorsuch wrote 337 total opinion pages (including majority opinions, concurrences and dissents), which was just higher than Alito’s 324 pages. Kavanaugh wrote the second fewest total opinion pages, at 169. Ginsburg was the only justice to write fewer, with 131 (Ginsburg also had the fewest majority opinion assignments this term, with six.).

Ginsburg was the quickest majority-opinion writer this term when we look at time between oral arguments and decisions. Her average time of 71 days far outpaced any of the other justices. Ginsburg also wrote two of the three quickest decisions based on this measure, with Mount Lemmon Fire District v. Guido at 36 days and Fort Bend County, Texas v. Davis at 42 days. Alito took the longest average time of the justices at 132 days, followed by Kagan at 128 days and Gorsuch at 118 days. Kagan wrote the decision that took the longest time from oral argument this term, Gundy v. United States, at 261 days. This was a record length of time for an opinion under Roberts.

Looking at the macro level, the justices voted unanimously in 28 cases this term, which equates to approximately 39 percent of the time. This is on the low end for a term since Roberts took over as chief and almost 30 percent lower than the highest percentage of unanimity for a term since 2005, which was 66 percent in 2013.

When we examine the Supreme Court’s treatment of cases from lower courts, decisions from cases that came from the U.S. Court of Appeals for the 9th Circuit stand out. Out of 14 cases the court voted on that came from the 9th Circuit, the court reversed 12 and only affirmed two, for an 86 percent reversal rate. The reversal rate was higher for only one circuit, the U.S. Court of Appeals for the 7th Circuit, at 100 percent, but the court only decided a single case previously heard by the 7th Circuit.

Going into the 2019 term, the Supreme Court has already granted 50 cases, which, when certain cases are consolidated, will lead to 41 oral arguments. This includes Carpenter v. Murphy, which was set for reargument in the fall. Many of these cases raise important issues of public concern, including the newly granted cases addressing Deferred Action for Childhood Arrivals, or DACA, and a case reviewing a provision of the Affordable Care Act.

Andrew Hamm provided invaluable assistance in producing this Stat Pack. Thanks also to Jon Levitan for his help maintaining the voting-alignment charts.

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Third Interim Stat Pack for October Term 2018

June 26, 2019 by admin Leave a Comment

This is a busy time for the Supreme Court, which is slated to provide decisions in 24 cases over the final two-week span of the term. This equates to over one third of its 69 argued cases with expected decisions. In the court’s last week of business before summer recess, the justices are expected to release 12 decisions, with eight still remaining.

The Supreme Court released its decision in Gundy v. United States last week, 261 days after the case was argued. This is three days longer than the court took last term with Gill v. Whitford and the longest it has taken the court to reach a decision in a case since 1993.

The justices have already written more dissents this term than in either of the past two terms. The leading justice in this category is Justice Stephen Breyer with nine dissents, followed by Justices Sonia Sotomayor and Neil Gorsuch with eight dissents each. Justice Clarence Thomas has written the most majority opinions so far with eight. He has also written the most 5-4 decisions with four. No other justice has written more than two 5-4 decisions so far this term. As I mentioned in a prior post, Thomas will set a record for himself in a term if he writes a fifth 5-4 decision.

Thomas also wrote the most total slip-opinion pages of the justices this term with 267 and the longest opinion this term with his dissent in Flowers v. Mississippi, which runs 42 pages.

The 5-4 decision coalitions look very different this term from last. With 16 of these decisions so far, the five more conservative justices (Chief Justice John Roberts, Thomas, Justice Samuel Alito, Gorsuch and Justice Brett Kavanaugh) voted together in six cases, while permutations of justices including the four more liberal justices (Justice Ruth Bader Ginsburg, Breyer, Sotomayor and Justice Elena Kagan) voted together in seven. This is quite a difference from OT 2017, when the five more conservative justices (with Justice Anthony Kennedy instead of Kavanaugh) voted together in 14 of the court’s 19 5-4 decisions, and the more liberal ones only voted together in the majority in three.

A few points are worth noting from the Justice Agreement Table. The justices with the highest agreement in full, part or judgment only are Roberts and Kavanaugh at 93 percent. By comparison the two newest justices, Gorsuch and Kavanaugh, were in agreement 72 percent of the time. The lowest agreement level is a tie between Thomas and Kagan, Sotomayor and Breyer each, at 53 percent apiece.

As usual, the Supreme Court has saved some of its biggest decisions for release in the final days of the term, including in the census and partisan-gerrymandering cases. After the final decisions of the term are released, we will have to wait until October before the court starts hearing arguments again in a new slate of cases, 37 of which have already been granted for next term, for a total of 29 arguments.

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Interim Stat Pack for October Term 2018

June 14, 2019 by admin Leave a Comment

The Supreme Court’s 2018-2019 term is almost complete. Although less than two calendar weeks are left, a large portion of the court’s work is still unfinished. At this juncture, we have several intriguing stories, some unexpected results and much left unanswered. So far, the justices have resolved 45 of the term’s 69 argued cases. This leaves at least 24 decisions for the final two weeks, or about 35 percent of the court’s merits docket. Many of these are high-profile cases, including Department of Commerce v. New York, the census-citizenship-question case; American Legion v. American Humanist Association, which implicates the future of the establishment clause; the two cases examining political-gerrymandering practices, Lamone v. Benisek and Rucho v. Common Cause; and Kisor v. Wilkie, which may dictate future jurisprudence surrounding judicial deference to administrative agencies.

It is important to note that the statistics for the term so far are preliminary, and they will change over the next two weeks. With that in mind, at this point in the term the court has presented us with some novel insights in the post-Kennedy era. Although many expected the court’s new conservative majority to overpower the four more liberal justices, such has yet to be the case (although if Justice Ruth Bader Ginsburg’s words from a recent speech ring true, such divisions still might play an important role in the remainder of the court’s decisions for the term).

We have seen seven different majority compositions in 5-4 decisions so far. Out of the 11 5-4 decisions, only four were decided by a majority composed of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. By contrast, Ginsburg and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were in the majority in five of these decisions. The variation in the source of the deciding vote in these five decisions has also been interesting to note. Roberts, Thomas, Gorsuch and Kavanaugh have all provided the fifth vote, leaving Alito as the lone more conservative justice not to join such a voting composition.

Several aspects of this term so far accord with patterns we have seen in the past. For example, the court has decided half of its cases by a unanimous majority, which is par for the course for recent terms. In the past, the court has frequently overturned decisions in cases coming from the U.S. Court of Appeals for the 9th Circuit. This term is no exception. Not only has the court vacated or reversed 11 of the 13 decisions coming from the 9th Circuit so far, with one decision, The Dutra Group v. Batterton, still remaining, but this is the highest reversal rate for any circuit this term (84.62 percent) aside from circuits that have only had a single case decided by the justices. Last term the court reversed in 12 out of 14, or 86 percent, of the cases that came from the 9th Circuit.

Kavanaugh seems to be fitting in comfortably among the justices in his first term on the Supreme Court. Based on his 43 votes, he has the highest frequency in the majority of any of the justices, at 93 percent. Roberts is a close second at 90 percent. In what also might be surprising to those expecting a conservative powerhouse of a court with this new justice composition, the only two justices whose frequencies in the majority so far this term are under 80 percent are Thomas and Gorsuch.

Some of the high rates of inter-justice agreement that we saw in the earlier Interim Stat Pack have dipped a bit now that more cases have been decided. Roberts’ agreement rates with Sotomayor and Kagan are no longer at least in the high 90-percent range for all measures, nor are Kavanaugh’s agreement rates with Sotomayor, Kagan and Breyer still at such heights. Surprisingly though, Kavanaugh still has higher agreement rates with Breyer and Kagan than he does with his fellow Trump nominee Gorsuch.

With the 24 cases already granted for next term, we can expect the justices to jump into several highly contentious areas that may put an even greater spotlight on the court. Because these cases involve issues ranging from Title VII discrimination to Second Amendment rights, we will likely see heated debates and much speculation over how the court will rule. This term is still far from over, however, and we may end up talking about the Supreme Court’s October Term 2018 decisions for many years to come.

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The final three weeks of October term 2018

June 10, 2019 by admin Leave a Comment

In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court and Tom Goldstein take a look at what’s ahead at the Supreme Court for the final weeks of June. The justices have 24 argued cases still to decide, including a number of the more high-profile cases from this year’s docket: Gundy v. United States, The American Legion v. American Humanist Association, Department of Commerce v. New York, and partisan-gerrymandering cases Rucho v. Common Cause and Lamone v. Benisek.

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