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Author: Amy Howe

By on Apr 28, 2020 at 2:28 pm
Yesterday the Supreme Court issued its long-awaited decision in a challenge to New York City’s ban on the transport of licensed handguns outside the city. Because the city had repealed the ban last summer, a majority on the court agreed with the city that the challengers’ original claims are moot – that is, no longer a live controversy. In a concurring opinion, Justice Brett Kavanaugh joined the majority in concluding that the case should go back to the lower court, but he also indicated that he shared the concern – expressed by Justice Samuel Alito in his dissenting opinion – that the lower courts “may not be properly applying” the Supreme Court’s most recent gun rights rulings, in District of Columbia v. Heller and McDonald v. City of Chicago. Therefore, Kavanaugh suggested, the Supreme Court “should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” The court’s electronic docket reveals that Kavanaugh’s suggestion may come to fruition soon: By the end of the day yesterday, the Supreme Court had distributed for consideration at Friday’s conference 10 cases that had apparently been on hold for the New York case. Several themes emerge from the cases that the justices will now review on Friday. The justices are being asked to weigh in on (among other things) whether and to what extent the Second Amendment protects the right to carry a handgun outside the home for self-defense, whether state and local governments can ban assault rifles and large-capacity magazines and whether the federal ban on interstate gun sales is unconstitutional. A full list of the 10 cases distributed for Friday’s conference, as well as a brief description of the question presented in each one, follows the jump. We expect orders from Friday’s conference on Monday, May 4, at 9:30 a.m. EDT.

By on Apr 28, 2020 at 11:55 am
In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which has provided billions of dollars to fund efforts to combat HIV/AIDS overseas. Among other things, the law contains a requirement that organizations receiving funds to fight HIV/AIDS “have a policy explicitly opposing prostitution and sex trafficking.” Seven years ago, the Supreme Court ruled that such a condition violates the First Amendment when applied to nongovernmental organizations based in the United States. Next week the justices will hear oral argument in a twist on that question: Can the government enforce the requirement against the foreign affiliates of the same U.S.-based NGOs, or does that also violate the First Amendment?

By on Apr 27, 2020 at 8:34 pm
UPDATE: On May 6, after referral to the full court, the application for stay was denied without public dissent. Yet another pandemic-related emergency filing reached the Supreme Court tonight. A group of Pennsylvania businesses led by the Friends of Danny DeVito, a committee formed to support a candidate for a seat in the state’s legislature (and no relation to the famous actor), asked the justices to temporarily block the enforcement of the executive order entered last month by the state’s governor, telling them that the order and others like it are doing “substantial, unprecedented damage to the economy.” On March 19, 2020, in response to the COVID-19 crisis, Pennsylvania Governor Thomas Wolf entered the order at the heart of the case, which requires the closure of the physical operations of all businesses that are determined to be “non-life-sustaining.” The governor also created a waiver process through which businesses deemed non-life-sustaining could apply for waivers that would allow them to reopen.

By on Apr 27, 2020 at 3:04 pm
This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not act on two cases that have been repeatedly relisted in recent weeks, a death-penalty case from Texas and the federal government’s challenge to one of California’s “sanctuary state” laws, which prohibit state and local law-enforcement officials from cooperating with federal immigration officials. The most noteworthy order came instead in a set of cases scheduled for argument in the justices’ upcoming argument session and could potentially derail congressional efforts to obtain President Donald Trump’s financial records.

By on Apr 27, 2020 at 2:52 pm
Today the Supreme Court ruled that health-insurance companies that lost money offering policies on the “health benefit exchanges” established by the Affordable Care Act are entitled to compensation for their losses. The decision was a major victory for the four insurers, which argued that they are owed hundreds of millions of dollars, and a defeat for the government, which had argued that Congress had repealed any obligation that the government might have had to reimburse the insurers.

By on Apr 27, 2020 at 12:47 pm
The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case. The case in which the justices ruled today was filed in 2013 by New York City residents who have licenses to have guns at their homes, as well as by an association of New York gun owners. The gun owners wanted to be able to take their guns to target ranges and weekend homes outside the city, but they were barred from doing so by the city’s ban on the transport of licensed handguns outside the city, which was enacted in 2001.

By on Apr 24, 2020 at 8:30 pm
Earlier this year, a divided Supreme Court gave the Trump administration the green light to enforce the “public charge” rule, which governs the admission of immigrants into the United States, while the government appeals orders by district courts in New York and Illinois that blocked it from doing so. Tonight the justices turned down pleas from the challengers in the case to put a temporary pause on the rule until the COVID-19 crisis is over. However, the justices did leave open the possibility that the challengers could return to the district court – which last year had issued orders that blocked the rule from going into effect while the challenges were being litigated – to seek relief, and at least one set of challengers appeared ready to take that option.

By on Apr 23, 2020 at 5:44 pm
Editor’s note: On April 13, the Supreme Court announced that it would conduct 10 oral arguments via telephone conference on several days in May in cases whose oral argument dates had been postponed due to the COVID-19 pandemic, and that it would make an audio feed available to the public through a media pool, providing real-time audio of oral arguments for the first time in its history. For many people, the Appalachian Trail, a 2,180-mile public footpath through the Appalachian Mountains, is a valued resource for exercise and recreation. But at the Supreme Court last February, it was serious business – so much so that Maury Johnson, Katherine Wilkin and many others spent a cold night on the sidewalk, waiting in line in the hope of snagging a seat at the court’s February 24 session, when the justices heard oral argument in a pair of cases involving the U.S. Forest Service’s power to grant a right of way for a pipeline through national-forest lands traversed by the trail. [caption id="attachment_293285" align="aligncenter" width="400"] A large crowd of protesters opposing the pipeline assembled in front of the court on February 24, 2020 (Casey Quinlan)[/caption]

By on Apr 21, 2020 at 12:00 pm
Editor's note: This post, which serves as the introduction to this blog's symposium on Chiafalo v. Washington and Colorado Department of State v. Baca, first ran on May 5, 2020, as an argument preview to those cases, and was originally published at Howe on the Court. Voters in the United States do not directly elect the president and the vice president. Instead, the Constitution instructs the states to appoint “electors,” who vote for the president and vice president. In Washington and Colorado, along with almost all other states, the electors are appointed from the same political party as the ticket that won the statewide popular vote, and they meet in early December to cast their ballots. Next week the Supreme Court will consider whether state laws that seek to control the electors’ votes violate the Constitution. It’s a fascinating legal question, but it’s also an issue that could have a significant effect on the outcome of presidential elections in the future.

By on Apr 20, 2020 at 5:19 pm
Last week a group of state and local governments, led by New York, asked the Supreme Court to temporarily block the government from implementing the “public charge” rule governing the admission of immigrants to the United States. The motion followed a January ruling by a divided Supreme Court that granted a request by the Trump administration for permission to enforce the rule while the government appeals a pair of orders by a federal district court in New York. Today the Trump administration responded to New York’s motion, urging the justices to deny it.