Supreme Court Review

Editors Azam Nizamuddin, John Pcolinski, Tim Klein

October begins the 2017 term for the Supreme Court of the United States (SCOTUS). Every term of the SCOTUS is important and provides significant legal precedent. However, with a new administration and some key social and economic issues at play, we at the DCBA Brief thought it would be worthwhile to provide some summaries of the more salient cases, which the SCOTUS will decide in the upcoming year.

Masterpiece Cakeshop v. Colorado Civil Rights Commission – The Baker and Same-Sex Marriage. The Masterpiece Cakeshop v. Colorado Civil Rights Commission case is about a baker from Colorado who objected to making a custom wedding cake for a gay couple. The state civil rights commission ruled that baker Jack Phillips violated the state anti-
discrimination laws by his refusal to bake a wedding case for a gay couple. Phillips claims the commission’s action violated his rights to free speech and free exercise of religion and therefore appealed to the Court of Appeals in Colorado. The Colorado Court of Appeals affirmed the decision of the civil rights commission against Phillips.

Gill v. Whitford – Gerrymandering in Wisconsin. In a significant challenge to Wisconsin’s political make up, Gill v. Whitford is a case which may have implications far beyond Wisconsin. Gill tests the constitutional limits of partisan gerrymandering, the practice by which a dominant political party draws districts to increase its legislative power at the expense of the opposing party. In the 2004 decision in Vieth v. Jubelirer, a divided SCOTUS held that partisan gerrymandering claims were not reviewable because there were no clear or manageable standards for measuring them. But the Whitford challengers, represented by the Campaign Legal Center’s Paul Smith, claim they have met a standard which is a neutral mathematical test for measuring when partisan gerrymandering goes too far. According to Erwin Chemerinsky, dean of the Berkeley School of Law, “There is really no issue more important than whether partisan gerrymandering should continue.”

Husted v. A. Philip Randolph Institute – Voting Rights in Ohio. This is an appeal from the United States Court of Appeals for the Sixth Circuit. The plaintiffs are a number of voter’s rights and homeless persons advocate groups challenging the State of Ohio’s procedures for removing ineligible voters from voter roles as being in violation of the National Voter Registration Act of 1993, 52 USC Section 20501 et seq. (NVRA) and the Help America Vote Act of 2002, 52 USC Section 20901 et seq. (HAVA).

NVRA has two purposes: “to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; . . . [and] to ensure that accurate and current voter registration rolls are maintained.” 52 USC § 20501(b). In order to comply with the second directive, Ohio removes individuals who have moved outside of the county in which they were registered. With regard to those who have moved, Ohio’s practice is initiated by comparing a list of persons who have requested a change of address from the US Postal Service with voter rolls and sending a notice to the registered voter who is then removed from the rolls if there is no response to the notice indicating that the voter does still reside where registered and the voter does not vote in two subsequent federal elections.

In addition, to the change of address list, Ohio has a Supplemental Process for identifying voters who have moved which is “no voter activity” for two years. “Voter activity” is defined to include, filing a change of address with the registrar of voters, filing a new voter registration in another county, casting an absentee ballot, casting a provisional ballot or voting on Election Day.

The Plaintiffs filed suit in the US District Court for the Southern District of Ohio objecting to the use of the Supplemental Process as a trigger and objecting to Ohio’s notice form and seeking injunctive relief. The District Court denied the injunction and held that the Supplemental Process did not violate the NVRA or the HAVA and that Ohio’s notice form complied with the requirements of those acts and dismissed the case.

On de novo review of legal questions (the facts were not disputed), the Sixth Circuit, reversed on both issues finding that use of the trigger of “No Voter Activity” was a violation of NVRA’s provision which prohibits removal of voters from the roll based solely upon failure to vote and that the notice form did not contain adequate information pursuant to HAVA as to how a voter who has moved can register in her new location. The SCOTUS granted certiorari on February 8, 2017. It has not yet been scheduled for oral argument.

Christie v. NCAA, NBA, NFL, MLB, NHL – Sports Betting by the State. In Christie, the issue is whether the federal government can keep states from authorizing legal sports betting. This pits New Jersey Governor Chris Christie versus five major sports groups – the National Football League, National Basketball Association, Major League Baseball, the National Hockey League and the NCCA. The professional sports leagues have challenged Governor Christie’s efforts to permit sports betting at New Jersey’s casinos and racetracks thereby receiving millions in tax revenue. They claim that New Jersey’s plan violates a federal law that bars most states from licensing sports betting. Governor Christie counters that the 1992 Professional and Amateur Sports Protection Act violates the 10th Amendment of the US Constitution by “commandeering” the regulatory power of the states. But the professional sports leagues, joined by the federal government, assert that the federal law is a permissible exercise of congressional power.

Trump v. Hawaii – The Travel Ban. President Donald Trump, during his presidential campaign, had proudly boasted he would ban Muslims from entering the United States. After his inauguration, President Trump executed an Executive Order (EO) on January 27, 2017 whereby he temporarily banned aliens from 7 countries with a predominantly Muslim population. After several court challenges by human rights group, several states and people affected by the EO, the Ninth Circuit Court of Appeals declared it unconstitutional. Then, President Trump signed another Executive Order on March 6, 2017 (New Order) which banned aliens from 6 predominantly Muslim countries and which was more narrowly tailored. This New Order too faced several legal challenges, namely from Hawaii and various individuals and immigration rights groups.

In response to Hawaii’s request for a Temporary Restraining Order halting the ban, the Supreme Court ruled that some parts of the New Order can remain in effect while others cannot. Further, it held that it will decide whether President Trump’s New Order on immigration is religious discrimination against Muslims in violation of the Establishment Clause and exceeds his authority under federal immigration laws. The challenges were brought by Hogan Lovells’ Neal Katyal for Hawaii and American Civil Liberties Union attorneys for the International Refugee Assistance Project in the Ninth Circuit and other cases from the Fourth Circuit.

The Fourth Circuit Court of Appeals rested its decision, in substantial part, on statements made by Donald Trump while he was a candidate for president. The majority opinion acknowledged that such review of campaign statements might “chill campaign promises,” but thought such chill “a welcome restraint” on certain speech. Several Amicus Curiae argued whether a court’s determinative reliance on candidates’ campaign statements poses an unacceptable risk to First Amendment interests.

When the justices agreed to hear those rulings by the Fourth and Ninth Circuits, respectively, they also ordered the parties to brief whether the case was moot because the executive order contained a June 14 expiration date. The 90-day period specified in the executive order will lapse before the October arguments in the case.

Epic Systems v. Lewis - Arbitration Clauses in NLRB Cases. This case is actually a trio of cases, and considers whether the collective-bargaining provisions of the National Labor Relations Act (NLRA) prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis.

The Trump administration’s Department of Justice recently reversed the former Obama administration’s stance supporting the National Labor Relations Board and employees in the cases. The NLRA, which strongly endorses collective bargaining, applies to most private employers. Many companies, from Samsung to Uber Technologies Inc., have urged the Supreme Court to decide the question that has divided the federal circuit courts. Several dozen cases are pending in those courts. The Supreme Court has been a consistently pro-arbitration court for some many years now and has upheld class action bans in consumer arbitration agreements. Employee groups hope the justices will give little weight to the government’s change in position which, they say, is the result of politics, not neutral legal judgment.

Jesner v. Arab Bank – Terrorism and Corporate Liability. The case concerns Arab Bank, which is based in Jordan and has been accused of processing financial transactions through a branch in New York for groups linked to terrorism. The Arab Bank has vigorously denied these allegations. The plaintiffs in the case seek to hold the bank liable for attacks in Israel and in the Palestinian territories by Hamas and other groups. The case involves the interpretation of the Alien Tort Statute, a 1789 law that allows federal district courts to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The issue of corporate liability was left unresolved by the Supreme Court in the 2013 Kiobel case, because the court found that all wrongdoing in that case took place outside the United States, beyond the scope of the statute. The Jesner plaintiffs assert that the bank used its New York branch as a “paymaster” for terrorist groups. The bank counters that the case is “fundamentally foreign” because all the injuries took place outside the United States.

The federal appeals courts are divided over whether corporations may be sued under the law. The Supreme Court had previously agreed to decide the question once before, in 2011, in Kiobel v. Royal Dutch Petroleum. At that time, the Obama administration urged the court to rule that corporations could be subject to the law. In 2013, the court said that there was a general presumption against the extraterritorial application of American law, ruling against Nigerian plaintiffs who said foreign oil companies had aided in atrocities by Nigerian military and police forces against Ogoni villagers. Chief Justice John G. Roberts Jr., writing for the majority, wrote that even minimal contact with the United States would not be sufficient to overcome the presumption. “Even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application,” he wrote.

Pointing to the proliferation of lawsuits against corporations under the alien statute, more than 150 business groups are hoping the court will rule that corporations cannot be held liable. But briefs supporting the plaintiffs argue that the statute provides the only mechanism for suing banks and other entities that use U.S. operations to give aid to terrorists.