Tuesday, June 27, 2017

Court Restores Trump's Travel Ban as Term Ends

      The Supreme Court ended a strangely incomplete term in dramatic fashion on Monday [June 26] by allowing President Trump's travel ban to take effect despite a string of lower court decisions blocking the controversial executive order.
      In a term with no true blockbusters, the court's decision to substantially narrow injunctions against what Trump described as a "watered-down" ban on travel from six predominantly Muslim countries amounted to a veritable bombshell at the end of the court's final sitting for the term.
      Chief Justice John G. Roberts Jr. ended the business part of the half-hour session by announcing that the court had agreed to hear the government's appeal of two decisions blocking Trump's executive order. The court, he explained, had also voted to stay the injunctions issued by the Fourth U.S. Circuit Court Appeals in a Maryland case and by the Ninth U.S. Circuit Court of Appeals in a suit originally brought by the states of Hawaii and Washington.
      The unsigned, 13-page opinion handed out in the Supreme Court's pressroom as Roberts spoke described the injunctions in Trump v. International Refugee Assistance Project and Trump v. Hawaii as overly broad and unmindful of the government's "interest in preserving national security." As revived by the court on an interim basis, Trump's EO-2 (technically, Executive Order 13780) will bar visas for foreign travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen unless the traveler has "a bona fide relationship with a person or entity in the United States."
      As examples, the unsigned opinion cited relatives of U.S. citizens, students admitted to U.S. schools, or workers with accepted offers of employment. In a dissenting opinion for three conservatives, Justice Clarence Thomas said he would have allowed the executive order to take effect as written and warned that the exceptions would prove to be "unworkable." Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined his opinion.
      The majority opinion was apparently joined by Roberts, Justice Anthony M. Kennedy and the court's liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. The actions on the applications for the stay and the government's petitions for certiorari were taken on the basis of written briefs without oral argument. Surprisingly, none of the Democratic-appointed liberal justices objected to lifting the injunctions issued by the Fourth Circuit on a 10-3 vote [May 25] and unanimously by a three-judge Ninth Circuit panel [May 15].
      Trump issued a somewhat formal, 114-word statement calling the court's action "a clear victory for our national security." But Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project and lead lawyer in the Maryland case, welcomed the court's decision to hear arguments on the ban in the fall following the earlier rulings against it. "The Supreme Court now has a chance to permanently strike it down,” Jadwat said.
      In a term with a modestly liberal cast to several decisions, the conservative bloc appeared to be refortified and somewhat ascendant as the justices prepared for their summer recess. Roberts delivered a resounding 7-2 victory for political and religious conservatives in the term's most closely watched case by easing a provision in Missouri state constitution barring government funds to churches or other religious institutions.
      The case arose in the unlikely context of a state program providing grants to non-profit entities to buy recycled automobile tires to rubberize playground surfaces in the interest of safety. Trinity Lutheran Church in the university town of Columbia applied for a grant for its church-school playground and scored well, but the state's Department of Natural Resources cited the state constitutional provision in rejecting the application.
      Roberts's majority opinion in Trinity Lutheran Church v. Comer found the church's disqualification to amount to religious discrimination in violation of the First Amendment's clause guaranteeing "free exercise of religion." He likened the government's action at one point to faith-based "persecution." Three justices joined Roberts's opinion in full: Kennedy, Alito, and Kagan. Thomas and Gorsuch joined all but a single footnote that limited the decision to "playground resurfacing" without ruling on "religious uses of funding." Breyer also wrote a separate opinion concurring in the judgment on somewhat narrower grounds.
      Sotomayor emphasized a dissenting opinion nearly twice as long as Roberts's by reading substantial portions from the bench. Sotomayor called the decision a "radical" break from historical tradition by holding — "for the first time" — "that the Constitution requires the government to provide public funds directly to a church." She warned that the ruling casts doubt on constitutional provisions akin to Missouri's in 30 states. Ginsburg joined her opinion.
      The case was one of 13 argued before a nine-justice court in April after Gorsuch's swearing in on April 10 on the strength of his 54-45 Senate confirmation. The court issued two other decisions from the April calendar on Monday, with conservatives prevailing in each by 5-4 votes. Thomas's opinion in Davila v. Davis barred death row inmates from challenging their sentences on the basis of ineffective assistance by lawyers in post-conviction proceedings. Kennedy's opinion in California Public Employees' Retirement System v. ANZ Securities refused to allow the big public pension system extra time for a securities-fraud lawsuit after having dropped out of a class action suit to litigate the case on its own.
      The liberal bloc had prevailed with Kennedy's help in some earlier five-vote decisions. Kennedy's 5-3 opinion in Peña-Rodriguez v. Colorado allowed criminal defendants to challenge convictions based on evidence of racist comments in the jury room. Ginsburg wrote a 5-3 decision in Moore v. Texas that instructed the state to update the standards for finding defendants ineligible for the death penalty on the basis of intellectual disability. Roberts gave the liberal bloc a fifth vote in the decision in Bank of America v. City of Miami to allow the city to sue banks under the Fair Housing Act for predatory loans in minority neighborhoods. And Thomas, oddly, provided the pivotal vote in the 5-3 decision in Cooper v. Harris to overturn a Republican-crafted redistricting plan as an improper racial gerrymander because it packed more minorities into legislative districts than needed to comply with federal law.
      Some other closely watched cases transcended the prevalent ideological lines. In a pair of free speech victories, the court unanimously struck down a federal law prohibiting registration of racially disparaging trademarks (Matal v. Tam) and a North Carolina law prohibiting convicted sexual offenders from using social media (Packingham v. North Carolina). And early in the term the court was unanimous in setting aside the $400 million judgment that Apple had won in a patent infringement suit against Samsung, its Korean rival in the smartphone wars (Samsung Electronics Co., Ltd. v. Apple Inc.).
      Court watchers had been waiting on Monday for decisions in three cases argued in December, January, and February. The court issued a limited ruling in Hernández v. Mesa instructing the federal appeals court for Texas to reconsider a suit by the parents of a Mexican teenager killed in a cross-border shooting by a U.S. Border Patrol Agent. In two other cases, the court scheduled rearguments in the next term--presumably, because the eight justices were evenly divided in the two immigration-related cases. Gorsuch is thus likely to have the decisive votes in Jennings v. Rodriguez, a case concerning rules for detention of aliens, and Sessions v. Dimaya, a case concerning use of state felony convictions as a basis for deportation.
      The court's final decision day came on a milestone date for LGBT rights advocates. The court's marriage-equality decision in Obergefell v. Hodges was issued on the same date in 2015; the rulings to strike down the Defense of Marriage Act and state anti-sodomy laws also both came on June 26, in 2013 and 2003 respectively. The court took no note of the anniversaries, but it did issue an unsigned, summary 6-3 decision in Pavan v. Smith to require the state of Arkansas to list a lesbian wife along with a child's biological mother on the child's birth certificate. Gorsuch wrote a dissent, joined by Thomas and Alito, arguing the issue warranted full briefing and oral argument.
      In all, the court issued a record low number of signed decisions in argued cases,  only 61, and nine other unsigned or per curiam opinions, including the interim ruling in Trump; the unsigned ruling in the argued case, Hernández; and six others, including Pavan, issued without oral argument. Among argued cases, 33 were unanimous — or an abnormally high 53 percent.
      In win-loss compilations, business interests prevailed over workers, consumers, or regulators in a majority of cases divided along those lines. That number included Gorsuch's only decision for the term: a 9-0 ruling in Henson v. Santander Consumer USA to somewhat narrow the federal Fair Debt Collection Practices Act. In criminal law cases, defendants or prison inmates won 11 decisions, the government 10. But the federal government won an important 8-0 victory in a closely watched case, Salman v. United States, that somewhat broadened insider-trading law.
      Along with the two cases restored to the calendar for reargument, the court is also carrying over three cases granted early enough for arguments in the current term but postponed — presumably because of fears of an inconclusive 4-4 split. Along with the travel ban case and five more cases granted on Tuesday [June 27], the court now has 28 cases teed up for arguments when the new term begins on Oct. 2, the traditional first Monday in October. That number includes two cases added on Monday: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado bakery's effort to set aside a state civil rights sanction for refusing to serve a same-sex couple's wedding; and Digital Realty Trust, Inc. v. Somers, a test of the whistleblower provision in the Dodd-Frank financial industry reform law.

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