Welcome Back, Justices!

October 6, 2014

Breaking news:  The Court will not review same-sex marriage decisions from Virginia (4th Circuit), Indiana and Wisconsin (7th Circuit), or Utah and Oklahoma (10th Circuit). Same-sex marriage is lawful in these states and, likely, legal in any other state in the same circuits, once a District Court hears a case challenging a ban on same-sex marriage. Still possible is Supreme Court action, if another Circuit Court of Appeals supports a ban, creating a circuit conflict.

First Monday in October! In honor of the beginning of the 2014-15 Court Term, I’m focusing on the cases—thank you, SCOTUSblog.com—already accepted for review, and two issues one issue which may end up on the Court docket.

Here’s the list of cases, courtesy of SCOTUSblog.com, and here are the cases I’m watching most closely, along with predictions (which I intend to be accountable for):

Alabama Democratic Conference v. Alabama, No. 13-1138, and Alabama Legislative Black Caucus v. Alabama, No. 13-895—they’re consolidated—are Voting Rights Act (Section 5) cases related to redistricting in Alabama. 5-4 in favor of Alabama! (If I explained the issue here I’d use up my presumptive 650-750 words and I’d surely eff it up 12 ways to Sunday. Complicated stuff!)

Another election case is Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314. It involves claims by the Arizona legislature that delegating redistricting to a commission violates Article 1, Section 4 of the U.S. Constitution. Laches, a legal concept which holds that when you sit on your rights you lose them seems like it ought to apply here. Maybe every legislature being a new body, or the constitution claims, trumps laches. Regardless, 5-4, tossing the redistricting commission.

(I’m blessed not to have been appointed to the Arizona Independent Redistricting Commission in 2010—I was a finalist—but being a defendant in a case which gets the attention of the U.S. Supreme Court would have been cool.)

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, has been in the news. The chain, which has problems which should have its management figuring out how to avoid lawsuits that end up in the U.S. Supreme Court, did not hire a Muslim teenager because she wore a head scarf. The case turns on whether A&F had sufficient knowledge about the head scarf issue. The EEOC should win. A&F, 5-4!

Holt v. Hobbs, No. 13-6827, involves a prisoner’s beard and the Religious Land Use and Institutionalized Persons Act of 2000, which passed both houses of Congress by voice votes. The law gives religious institutions exemptions from zoning laws, and prisoners the right to practice their faith. 5-4 in favor of the Arkansas Department of Corrections, and against Muslim prisoner Gregory Holt, aka Abdul Maalik.

Zivotofsky v. Kerry, No. 13-628 involves a separation of powers issue. Congress passed and President Bush signed the Foreign Relations Authorization Act of 2003, and included within it a provision that allows American citizens born in Jerusalem to have their passports identify Israel as their birthplace. President Bush challenged the provision in a signing statement. (Since Harry Truman, no American President has been willing to “assign” Jerusalem to one country or another; likewise, as Secretary of State John Kerry’s opposition to the writ of certiorari notes, the U.S. does not identify either the West bank or Gaza with a particular country. None of that, however, mattered to Congress or its lobbyist masters, and from a legal perspective there are issues about Congress interfering with inherent presidential powers.)

Menachem Binyamin Zivotofsky, born in 2002 in Jerusalem and acting through his parents, sued when his passport only identified his birthplace as Jerusalem. The Zivotofskys lost in both the trial court and the D.C. Circuit. Look for a 5-4 or 6-3 decision in their favor, as the Court did not need to wander into this thicket to affirm lower court decisions.

Dart Cherokee Basin Operating Company, LLC v. Owens, No.  13-719, involves nuts and bolts stuff that matters only to attorneys and the parties in the case. The set up:  Removal is a process by which a defendant, sued in state court with respect to issues which allow the case to be heard in federal court, asks the federal court to assume jurisdiction. And the issue? Whether the evidence that supports removal must be in the petition for removal, or can be mentioned in a “short and plan statement of the grounds for removal,” as the removal statute provides. Forgive me, please, but we fucking don’t have time for crap like this. The statute is clear; move on! Defendant—the party seeking removal, which lost in the 10th Circuit—prevails 9-0.

Those are the cases on the docket I’m watching most closely. To come? The Affordable Care Act subsidy case, and same-sex marriage.

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