Friday, July 3, 2020

Overtime July begins with Emanations and Penumbras from the Shadow Docket

By Josh Blackman - July 03, 2020 at 03:11PM

Blue June is so last month. Now, we are in Overtime July. Yes, the Supreme Court term has gone into extra innings. Eight months were not enough. Now, we need a ninth. So far, we do not have any signed opinions from July. But the Court has made a number of significant moves on the shadow docket. The Court's first action for Overtime July was a short, three-page order. The Court quietly ruled ruled on Abortion, Free Exercise, the Mueller Report, Voting Rights, and the Suspension Clause.


If you blinked, you'd miss the fact that the Court passed on six abortion-related petitions! First, the Court GVR'd Box v. Planned Parenthood of Indiana and Kentucky in light of June Medical. This case has been lingering for some time. In September 2018, Indiana filed a petition for a writ of certiorari. It presented two questions presented:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The case was distributed at 15 (!) conferences. Finally, in May 2019, the Court issued a three-page per curiam decision. The Court GVR'd on Question 1. It explained that the Seventh Circuit failed to apply the appropriate standard of review. However, the Court denied review on Question 2.

Indiana filed another cert petition in this litigation on February 4, 2019. This case presented a different question:

May a State, consistent with the Fourteenth Amendment, require an ultrasound as part of in-formed consent at least eighteen hours before an abortion?

This case was distributed at seven conferences. And finally, on July 2, the Court GVR'd the ultrasound case in light of June Medical.

Indiana had filed yet another cert petition in December 2019. This petition raised the third-party standing issue, which has now been resolved. The petition also presented a notification-related question:

Whether Indiana may, consistent with the Fourteenth Amendment, generally require lawyers for unemancipated minors to notify parents of court-authorized abortions, subject to judicial bypass upon a finding that such notice would be against the mi-nor's best interests.

Presumably both of these Box cases will come back on appeal next year. And in that case, the Chief will likely only consider whether the law imposes an "undue burden," and not consider whether the law provides any actual health benefits. The notification law seems like the sort of law that would survive under Casey, as re-envisioned by the Chief.

On July 2, the Court also quietly denied review in four other abortion cases. First, the Court denied review in Yost v. Planned Parenthood. This case raised the third-party standing issue, and a question about attorneys' fees. Second, the Court denied review in Hill v. Whole Woman's Health. This raised some issues about the licensing of abortion clinics. Third, the Court denied review in Reilly v. City of Harrisburg and Price v. City of Chicago. Both of these cases considered challenges to "buffer zones" surrounding abortion clinics. Justice Thomas would have granted the petition in Price. That case expressly asked the Court to reconsider Hill v. Colorado in light of Reed v. Town of Gilbert and McCullen v. Coakley.

The Court quietly dropped six abortion cases from its docket without a blip. The Chief is waiting for his preferred abortion vehicle at the right time. The game of 87-dimensional chess continues.

Free Exercise

On July 2, the Court also GVR'd St. Augustine School v. Stand in light of Espinoza. This case presented two-free exercise issues.

1. Whether the Free Exercise Clause prohibits the government from requiring a religious adherent to choose between following his or her faith tradition as he or she sees fit and the receipt of otherwise-available government benefits.

2. Whether the Religion Clauses prohibit the government from rejecting a private party's assertion that it is not affiliated with a specific organized religious group, where the sole basis for the government's decision is the religious label the party has assigned to itself.

This case now heads back to the Seventh Circuit.

Mueller Report

Remember the Mueller Report? For some time, it was the most important document around. Now, it barely warrants a mention. You may recall that parts of the Mueller Report were redacted. D.D.C., and later the D.C. Circuit, ordered the Trump Administration to release redacted portions of the report. In May, the Solicitor General sought a stay from the Supreme Court. It was granted on May 20, so long as a cert petition was filed by June 1. The briefing was fully completed on June 18. After distributions at two conferences, the petition was granted on July 2.

The cert grant, by itself, is a temporary victory for the Trump Administration. Had cert been denied, the stay would have been lifted, and D.D.C.'s order would have gone into effect. Now, this issue may linger till June 2021. At that point, President Trump could be out of office, and the House Committee would have a lessened need to access the documents. In any event, the redactions will not be made public before the election

There is another possible angle. Judge Rao's dissent in the D.C. Circuit suggested that the House may lack Article III standing. In theory, the Court could remand the Mueller case after it decides the House Committee's tax return case. But the fact that the Court granted here, and didn't wait for a GVR, signals that a the tax case may not affect the outcome of the Mueller case.

Election Law

Here in Texas, people over the age of 65 are eligible to receive an absentee ballot. But people under the age of 65 have to meet certain criteria. The Texas Democratic Party argues that this regime violates the Twenty-Sixth Amendment. The Fifth Circuit disagreed. The Petitioners then asked the Supreme Court for an emergency application to stay the Fifth Circuit's ruling. They also filed a petition for a writ of certiorari before judgment.

On June 26, the Court denied the stay. Justice Sotomayor wrote a statement respecting the denial:

This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not dis-agree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.

Six days later, on July 2, the Court denied the motion to expedite consideration of the petition. As a result, there is no likely chance this issue is resolved before the November election.

Later in the evening, the Court decided another abortion related case. A federal district court in Alabama had issued an order to remove some restrictions on voting during the pandemic. Alabama sought a stay from the Supreme Court on June 29. Three days later, it was granted. The Court split 5-4, with Justices Ginsburg, Breyer, Sotomayor, and Kagan in dissent.

Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4.

Suspension Clause

In my view, DHS v. Thuraissigiam has interred the Supreme Court's Suspension Clause jurisprudence (See here, here, and here). And on July 2, the Court quietly denied another Suspension Clause challenge. Hamama v. Adducci considered a statute that divests the district courts of jurisdiction to hear claims brought under the Convention against Torture. After Thuraissigiam, there was no interest to decide whether this statute violates the Suspension Clause.

Stay tuned for opinions on Monday, as Overtime July continues.

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