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By on Jun 1, 2020 at 12:36 pm
In 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). The law created a seven-member board tasked with bringing financial stability back to the island. But when the board began proceedings in federal court to restructure Puerto Rico’s massive debt, a hedge fund that had invested in distressed Puerto Rico bonds and a local labor union went to court to challenge the method by which the board’s members had been appointed. They argued that under the Constitution’s appointments clause, the board members should have been nominated by the president and confirmed by the Senate. Because they were not, the challengers contended, the board’s actions could not be valid.

By on May 30, 2020 at 9:31 am
Last night the Supreme Court declined to intervene in challenges by churches in southern California and the Chicago area to stay-at-home orders issued as a result of the COVID-19 crisis. The churches had asked the justices earlier this week to lift restrictions on crowds in time for them to hold services on Sunday, when Christians celebrate the holy day of Pentecost. But the justices turned them down. The court issued only a terse order in the Illinois case that referred to the new guidance issued by the state earlier this week. But the justices were closely divided in the California case, with Chief Justice John Roberts casting the deciding vote and writing a late-night opinion to explain his decision to deny relief.

By on May 29, 2020 at 1:27 pm
In a press release today, Senators Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt., who are both members of the Senate Judiciary Committee, called on the Supreme Court to continue providing live audio of its oral arguments in the future, even after the coronavirus pandemic is over. The senators also requested that the court consider the further step of live video. Grassley and Leahy cite two recent polls that demonstrate broad, bipartisan support for both continued live audio at the Supreme Court and the use of live video in all courthouses around the country. “Given this widespread support for access to our nation’s highest court – and the countless contributions it makes towards the civics education of the American public,” the senators said in their letter to Chief Justice John Roberts, “there is no reason why pro-transparency measures should end when the Court returns to its normal functions.”

By on May 27, 2020 at 11:29 am
John Elwood reviews Friday’s relists. A funny thing happened on Friday: The Supreme Court relisted cases for the next week’s conference, only one day following its previous conference. That may not seem like a big deal, but it’s the biggest change in the court’s relisting procedures in years. Usually, the court relists cases after it releases orders from the previous conference -- usually following a Monday order list (or Tuesday, for holiday weekends). Because the Supreme Court usually relists every case it is going to grant, the absence of a Friday relist for the other cases from last week’s conference suggested that, come Monday, the non-relisted cases would be dead on arrival. This week, that proved to be correct, including for some closely watched cases with significant amicus support. The Friday relists also made for much more informed reading of the order list this week, knowing that you didn’t have to look for the still-living relists among the dead cases for which cert had just been denied. So about the living cases. All of last week’s relists are back, including most notably the 10 Second Amendment cases that have been kicking around for a while. We have two groups of new relists this week.

By on May 26, 2020 at 6:06 pm
Update: Justice Elena Kagan has called for a response in the case; it is due on Thursday, May 28, by 8 p.m. On Wednesday, two Chicago-area churches asked the justices to allow them to hold services on Pentecost as well. The Elim Romanian Pentecostal Church and Logos Baptist Ministries, which are both Romanian-American Christian churches, argue that the stay-at-home orders and reopening plan for Illinois violate the Constitution by imposing a 10-person limit on worship services that does not apply to other services deemed "essential," such as retail stores, liquor stores, restaurants and office buildings.

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A southern California church has asked the Supreme Court to block the enforcement of stay-at-home orders issued by California and San Diego County, arguing that the orders are unconstitutional because they discriminate against places of worship.

By on May 26, 2020 at 2:08 pm
Today the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal court that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19. The inmates’ victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district court’s most recent order, and it indicated that the government could return to the Supreme Court to “seek a new stay if circumstances warrant.” Moreover, three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the government’s request. Today’s order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility.

By on May 26, 2020 at 10:41 am

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any cases to their merits docket for next term, nor did they seek the views of the federal government in any new cases. And perhaps most...

By on May 22, 2020 at 4:51 pm
Editor’s note: This is the second post in a series analyzing the Supreme Court’s telephonic oral arguments with live audio instituted due to the COVID-19 pandemic. Data for this project was provided by Oyez, a free law project by Justia and the Legal Information Institute of Cornell Law School. Kalvis Golde and Katie Bart both provided invaluable assistance in aggregating data for this post. We recently witnessed what was likely the biggest experiment in the history of Supreme Court oral arguments. As former Chief Justice William Rehnquist described in his essay looking at  shifts in the focus of Supreme Court advocacy from oral arguments to the briefs, the biggest changes in the structure of oral arguments historically had to do with the time allotted to individual arguments. Now, even though potentially ephemeral, the new structure implemented in May included unprecedented changes to the argument format. The three main alterations were that the arguments occurred remotely, so for the first time during arguments the justices were not in the same room with the advocates and one another; that the court used an ordering mechanism whereby the justices asked questions individually and in order of seniority; and, critically, that the justices were limited in the time they could question.

By on May 21, 2020 at 3:20 pm
In May, for the first time in its history, the Supreme Court provided live audio of its oral arguments to the public due to the COVID-19 pandemic. That move appears to enjoy broad support. According to two polls released before and after the May arguments, a significant majority of Americans across the ideological spectrum believe the public should have live access to judicial proceedings. Both survey samples were similar in make-up, polling between 1,000-1,500 participants with a wide variance in geographic location, racial composition, education level, age and political leaning.