Symposium: All foreign nationals should be excluded from apportionment. That’s what the Constitution requires.

Symposium: All foreign nationals should be excluded from apportionment. That’s what the Constitution requires.

This article is part of a symposium previewing Trump v. New York.

John S. Baker Jr. is professor emeritus at the Louisiana State University Law Center. He filed an amicus brief in support of the federal government.

At next week’s oral argument in Trump v. New York, the justices should ask the government why it hasn’t excluded all foreign nationals from the congressional apportionment calculation, whether they are in the country legally or illegally.

The Trump administration is right to exclude people in the country illegally from apportionment. But it should also exclude all other foreign nationals, such as foreign students studying on student visas. No foreign national qualifies as “an inhabitant,” as that term was understood at the Founding. The Supreme Court in Franklin v. Massachusetts (1992) agreed that only “inhabitants” count for apportionment.

Representation for foreign nationals in the House of Representatives and, derivatively, in the Electoral College defies constitutional, as well as common, sense. Nevertheless, the Census Bureau has given every foreign national living in the United States political representation equal to that of American citizens under age 18. The 14th, 15th, 19th, and 26th Amendments have created the impression that representation includes voting. Still, however, citizens under 18 and non-citizens of any age who are permanent legal residents cannot vote. Nevertheless, both groups are U.S. nationals represented in the House and Electoral College because they are counted in the bases for apportionment.

Excluding foreign nationals from apportionment should be a no-brainer under Wesberry v. Sanders (1964). The case famously established the doctrine of one-person-one-vote in congressional elections. Its holding that Georgia’s method of drawing congressional districts with vastly different numbers of voters violated the Constitution applies equally to the Census Bureau’s inclusion of non-inhabitants in the bases for apportionment. Necessarily, this results in vastly different numbers of “inhabitants” among congressional districts in different states.

Including foreign nationals in apportionment increases the value of individual votes in districts of some states and reduces the value of votes in districts of other states. Congressional candidates in districts with large foreign-national populations face fewer actual voters than those in districts without many foreign nationals. Unfortunately, the government’s brief does not pursue the one-person-one-vote principle. Its brief twice cites Wesberry, but only to criticize its use by the lower court.

The government’s argument is almost entirely a statutory one, relying on Franklin, which upheld a Commerce Department decision ending the practice of excluding overseas federal personnel from the bases for apportionment in their home states. The government makes two major points: (1) that in taking the census and tabulating the numbers, the Census Act permits both the use of administrative records and the creation of two sets of population tallies; and (2) that the Reapportionment Act does not require the president to include all people living in the country illegally in the apportionment base.

On the first point, the use of administrative records is a well-established practice. The creation of two sets of numbers is not. Nevertheless, the court in Franklin, “[o]ut of respect for the separation of powers and the unique position of the President,” recognized that the president has executive control over the census. It would conflict with the separation of powers if the president could not tell a subordinate to supply certain information, including a second set of numbers that excludes all foreign nationals from apportionment.

On the second point, as I argue in my amicus brief, the Constitution does require the exclusion from apportionment of anyone who is not an “inhabitant,” as that term was understood at the time the Constitution was ratified and at the time the 14th Amendment, which followed the pertinent language in Article I, Section 2, was ratified.

The government agrees that the reapportionment statute requires counting only “inhabitants” and recounts the constitutional history supporting the significance of being an “inhabitant.” Nevertheless, it avoids embracing the constitutional position that non-inhabitants must be excluded from apportionment. Instead, the government’s brief claims that the Reapportionment Act allows the president discretion to decide which foreign nationals are and are not “inhabitants.” Only near the end of this argument about inhabitants does the brief say: “Finally, construing the term ‘inhabitants’ to mandate the inclusion of all illegal aliens in the apportionment base would be at odds with the Constitution’s structure.”

The Census Bureau has, for decades, dogmatically insisted that it is compelled by the Constitution to implement the policy the government’s brief rightly says is “at odds with the Constitution’s structure.” Yet in this case, the government broadly relies on Franklin, which takes an approving approach to exercises of discretion by the Census Bureau. The government is unwilling to say what it believes to be true, namely that the Census Bureau has long been unconstitutionally including non-inhabitants in the population counts used for apportionment.

As a result, the government’s position is untenable. While the government recognizes that the current practice of including non-inhabitants in apportionment is unconstitutional, it also argues that the president has discretion — yet has no obligation — to exclude them.

For the court’s originalists, the government’s case would be stronger if all foreign nationals were excluded and if the constitutional argument had been clearly made. For the court’s pragmatists, the government should allay any concerns about federal funding to states having many foreign nationals by emphasizing two sets of numbers: one for apportionment and the other, including foreign nationals, for the statutory purpose of allocating federal funds to the states. States not likely to gain or lose a congressional district care most about federal funding.

President Donald Trump can triumph even over a Biden administration if the court rules either that the case is non-justiciable or that the president cannot be denied information from the Census Bureau. In early January, Trump could send Congress one set of numbers excluding all foreign nationals for apportionment and a second set including them for federal funding. A Biden administration would attempt to negate Trump’s action, but the affected states would have the necessary data to support constitutional challenges to the inclusion of foreign nationals in apportionment. Those challenges would present an opportunity for the Supreme Court definitively to correct the long-running constitutional defect in how House seats have been allocated.

The post Symposium: All foreign nationals should be excluded from apportionment. That’s what the Constitution requires. appeared first on SCOTUSblog.

Petitions of the week: CARES Act payments for Alaska Natives, courts in church-property disputes, Miranda warnings and more

<img width="150" height="150" src="https://3b2jeq401bwjqkrtk1q22rvp-wpengine.netdna-ssl.com/wp-content/uploads/2020/11/Banner150615-150×150-1.jpg" class="attachment-thumbnail size-thumbnail wp-post-image" alt="Petitions of the week: CARES Act payments for Alaska Natives, courts in church-property disputes, Miranda warnings and more” loading=”lazy” title=”Petitions of the week: CARES Act payments for Alaska Natives, courts in church-property disputes, Miranda warnings and more” style=”float:right” />

This week we highlight cert petitions that ask the Supreme Court to review, among other things, whether Alaska Native corporations are “Indian tribes” who can receive CARES Act payments, whether courts should defer or decide disputes over church property, and how explicit police officers must be in explaining to a suspect her right to a lawyer before and during interrogations under Miranda v. Arizona.

In the 1971 Alaska Native Claims Settlement Act, Congress established a different relationship with Alaska Natives than it had with Native Americans in the lower 48 states. Rejecting reservations, the ANCSA mandated the creation of “regional corporations” and “village corporations” to manage Native lands, administer settlement funds and act for the benefit of Alaska Natives. Fast forward to the Coronavirus Aid, Relief, and Economic Security Act, in which Congress directed the treasury secretary to disburse $8 billion of relief funds to the governing bodies of “Indian tribes” as defined in the Indian Self-Determination and Education Assistance Act. This act defines “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation … which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”

In April 2020, several tribes sued the treasury secretary to prevent payments to Alaska Native corporations. The U.S. Court of Appeals for the District of Columbia Circuit agreed that the corporations are not eligible to receive CARES Act payments because these groups are not “Indian tribes.” In the view of the D.C. Circuit, the above definition meant that only Alaska Native corporations that are formally recognized qualify as Indian tribes. However, the D.C. Circuit continued, recognition is a “legal term of art” in Indian law and the corporations have never been recognized in this formal sense. Petitions from the treasury secretary (Mnuchin v. Confederated Tribes of the Chehalis Reservation) and Alaska Native corporations (Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation) ask the justices to review this decision. Among other things, the petitions argue that the D.C. Circuit’s reading conflicts with Congress’ intent in the CARES Act and with decisions by the U.S. Court of Appeals for the 9th Circuit, which hears the majority of Alaska Native cases.

Three petitions present the justices with contrasting claims regarding the role of courts over church disputes. In the 1871 case Watson v. Jones, the Supreme Court mandated deference to how ecclesiastical bodies resolved church-property disputes. However, in 1979, the Supreme Court in Jones v. Wolf allowed courts to apply “neutral principles of law” to resolve such matters, though courts could still defer. Petitions in All Saints’ Episcopal Church (Fort Worth) v. Episcopal Diocese of Fort Worth and Episcopal Church v. Episcopal Diocese of Fort Worth ask the justices to review a Texas Supreme Court decision that eschewed deference and to institute stronger First Amendment protections. In contrast, the petition in Schulz v. Presbytery of Seattle asks the justices to review a Washington Court of Appeals decision that chose deference and to require that courts apply neutral principles.

Miranda v. Arizona famously requires police to advise a suspect of the right to an attorney before beginning an interrogation. In Michigan v. Mathews, police advised Laricca Mathews, a murder suspect, of her right to a lawyer in general terms, but they did not explicitly state that she was entitled to have a lawyer present during questioning. Mathews then admitted to shooting her boyfriend. The trial court, affirmed by the Michigan Court of Appeals, suppressed Mathews’ statements on the ground that the warning was defective. In its petition, Michigan asks the justices to review the decision because state and federal courts are split over whether a general warning satisfies Miranda.

These and other petitions of the week are below:

Schulz v. Presbytery of Seattle
20-261
Issue: Whether, in a dispute between a local congregation and its former denomination over ownership of property to which the local congregation holds legal title, the First Amendment permits courts to apply a rule of absolute deference to assertions of ownership by the denomination.

All Saints’ Episcopal Church (Fort Worth) v. Episcopal Diocese of Fort Worth
20-534
Issue: Whether the Texas Supreme Court’s decision awarding the sanctuary and rectory of the petitioner, All Saints’ Episcopal Church (Fort Worth), to a dissident faction in contravention of the will of petitioner’s parishioners and an express-trust provision is consistent with the free exercise and establishment clauses.

Episcopal Church v. Episcopal Diocese of Fort Worth
20-536
Issues: (1) Whether the First Amendment requires courts to enforce express trusts in church governing documents (as some jurisdictions hold, in line with Jones v. Wolf‘s first safeguard), or whether state law may render such trusts unenforceable (as others hold); (2) whether the First Amendment requires courts to defer to churches on questions of polity (as some jurisdictions hold, in line with Jones’ second safeguard), or whether courts may apply state law to determine the structure of a church (as others hold); and (3) whether the neutral-principles approach may constitutionally be applied — either prospectively or retroactively — to resolve church-property disputes.

Mnuchin v. Confederated Tribes of the Chehalis Reservation
20-543
Issue: Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the Coronavirus Aid, Relief, and Economic Security Act.

Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation
20-544
Issue: Whether Alaska Native regional and village corporations are “Indian tribes” under the Indian Self-Determination and Education Assistance Act and therefore are eligible for emergency-relief funds under Title V of the Coronavirus Aid, Relief, and Economic Security Act.

Michigan v. Mathews
20-546
Issue: Whether Miranda v. Arizona is satisfied when a suspect in custody is advised at the beginning of an interrogation that they have the right to an attorney, but is not explicitly advised that they are entitled to the attorney’s presence before and during interrogation.

The post Petitions of the week: CARES Act payments for Alaska Natives, courts in church-property disputes, Miranda warnings and more appeared first on SCOTUSblog.

Court shelves oral argument in dispute over Mueller materials, grants two new cases

Court shelves oral argument in dispute over Mueller materials, grants two new cases

The Supreme Court announced on Friday morning that it would postpone oral argument in Department of Justice v. House Committee on the Judiciary, the dispute over access to secret materials from the Mueller investigation that had been scheduled for Dec. 2. The news came as part of the orders released from the justices’ private conference on Friday. The justices also added two more cases, both involving the scope of law enforcement officials’ authority to search, to their argument calendar for the term.

The decision to put off the oral argument in the Mueller case granted a request made three days ago by the House Judiciary Committee. In a filing on Tuesday, the committee told the justices that once a new Congress and President-elect Joe Biden take office in January, it “will have to determine whether it wishes to continue” its efforts to obtain the materials – the redacted portions of the report filed by Special Counsel Robert Mueller and the secret grand jury transcripts and materials on which those portions are based.

In a one-paragraph response on Thursday, Acting Solicitor General Jeffrey Wall indicated that the government did not object to the committee’s request. Wall wrote that the government was “ready to proceed with argument on December 2, 2020 as scheduled, but will proceed however the Court chooses in light of the Committee’s motion.”

The two new cases that the court agreed to review both involve disputes over police conduct. The Fourth Amendment normally requires police to obtain a warrant for searches and seizures. The Supreme Court has carved out several exceptions to this general rule, including one for when police are serving a “community caretaking” function – activities that don’t have anything to do with fighting crime, but instead are focused on providing help. In Caniglia v. Strom, the justices on Friday agreed to decide whether the exception applies to the home.

The case arose after police officers went to the Cranston, Rhode Island, home of 68-year-old Edward Caniglia, when his wife requested a wellness check. After a local firefighter persuaded Caniglia to go to the hospital, police officers – believing that “Caniglia and others could be in danger” – entered the home and took Caniglia’s guns. Caniglia sued the city and police officers in federal court, arguing (among other things) that the police officers’ entry into his home and seizure of the guns without a warrant violated the Fourth Amendment. The district court ruled that the police officers’ actions were covered by the “community caretaking” exception, and the U.S. Court of Appeals for the 1st Circuit upheld that decision.

Caniglia went to the Supreme Court in August, where he argued that the justices should take up his case because the lower courts are “deeply divided” on the question whether the “community caretaking” exception applies to the home. The lower court’s decision is also simply wrong, he added, because the Supreme Court intended the exception to apply only to cars.

The city and police officers countered that there is no conflict among the lower courts, which have looked at the “unique facts” of each case and “routinely” allow officers to enter homes without a warrant in “dire” circumstances. Moreover, they added, the Supreme Court did not limit the exception to cars, and the Fourth Amendment does not prevent the police from entering homes to defuse potentially dangerous situations.

In United States v. Cooley, the justices will decide whether a police officer for a Native American tribe can detain and search a non-tribe member on a road within a reservation for a possible violation of state or federal law. The question comes to the court in the case of Joshua James Cooley, who was parked in his pickup truck on the side of a road within the Crow Reservation in Montana when Officer James Saylor of the Crow Tribe approached him in the early hours of Feb. 26, 2016. Cooley was indicted on weapons and drug charges, but the U.S. Court of Appeals for the 9th Circuit ruled that the guns and drugs could not be used as evidence against him. The federal government appealed to the Supreme Court, which on Friday agreed to weigh in.

The cases granted on Friday will likely be argued sometime early next year. We expect more orders from Friday’s conference on Monday, Nov. 23, at 9:30 a.m.

This post was originally published at Howe on the Court.

The post Court shelves oral argument in dispute over Mueller materials, grants two new cases appeared first on SCOTUSblog.

Another glimpse into the shadow docket

Another glimpse into the shadow docket

What is the Supreme Court’s “shadow docket”? John Elwood, head of Arnold & Porter’s appellate and Supreme Court Practice, sits down with SCOTUStalk host Amy Howe to explain the often opaque work that happens outside of the court’s regular roster of argued cases. For much more on the shadow docket and its increasing importance, check out SCOTUSblog’s recent symposium on how this group of cases has shaped issues such as voting procedures, coronavirus responses, capital punishment and more.

Listen on Acast

Post will be updated with full transcript.

The post Another glimpse into the shadow docket appeared first on SCOTUSblog.

Case preview: Justices to review Trump’s plan to adjust census data used for congressional apportionment

Case preview: Justices to review Trump’s plan to adjust census data used for congressional apportionment

This article is the first entry in a symposium previewing Trump v. New York.

Joe Biden has been declared the winner of the 2020 presidential election and is scheduled to be sworn into office on Jan. 20, 2021. Ten days before Biden’s inauguration, President Donald Trump is scheduled to send a report to Congress that contains the number of people living in each state and indicates how many seats in the House of Representatives to which each state is entitled. On Monday, Nov. 30, the Supreme Court will hear oral argument in Trump v. New York, a challenge to the Trump administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown used to allocate seats in the House.

If the court upholds the plan and the administration is able to implement it before leaving office, the new method of apportioning House seats could shift political power away from states with large immigrant populations and toward states with fewer immigrants.

Background

The Constitution requires a census every 10 years to determine the population of the United States, which is then used to divide up seats in the House of Representatives. Under federal law, the secretary of commerce – to whom Congress has delegated the power to conduct the census – must send a report to the president by Dec. 31 containing “the tabulation of total population by States … as required for the apportionment” of House seats. Then, by Jan. 10, the president must send a report to Congress that contains “the whole number of persons in each State,” as determined by the census, along with “the number of Representatives to which each State would be entitled.” Throughout American history, the population numbers used to allocate House seats have encompassed all persons living in each state, regardless of their immigration status.

The dispute now before the court arose in July 2020, after Trump announced that the total population used to calculate the number of representatives for each state would not include people who are living in the country without authorization. In a memorandum, Trump instructed Secretary of Commerce Wilbur Ross to give him two sets of numbers for each state: the total population as determined by the 2020 census; and the total population as determined by the census, excluding – “to the extent practicable” – people who are not in the country legally. That second total would then become the “population base” used for congressional apportionment.

The Supreme Court ruled in 2019 that the Trump administration could not include a question about citizenship on the 2020 census. Two weeks later, Trump directed other federal agencies to provide the Census Bureau with records that he said would produce an accurate count of noncitizens living in United States. The Census Bureau has said that it is studying how it can use “administrative records” to comply with Trump’s July 2020 memorandum and provide two separate population counts.

Two groups of plaintiffs quickly went to court to challenge Trump’s new policy. One set of challengers was made up of state and local governments, led by New York; the other set was a group of nonprofits that work with immigrant communities. They argued that the memorandum violated the Constitution and federal law.

A special three-judge district court, which federal law requires for challenges to the constitutionality of the apportionment of congressional districts, blocked officials in the Department of Commerce and the Census Bureau from including any information about the number of people in the country illegally in their December report to the president. The district court agreed with the challengers that Trump’s July 2020 memorandum violates federal law because it would require seats in the House to be allocated based on data that did not come from the 2020 census. Moreover, the court added, the president does not have the option to exclude people who are not in the country legally from the total population count. The Trump administration appealed to the Supreme Court, which agreed on Oct. 16 to expedite its review of the case.

Preliminary issues: Standing, mootness and alleged harm

Even before the justices can reach the merits of the challengers’ argument, they must settle a threshold question: whether the case is properly before the justices at all. In the district court, the challengers argued that they have the legal right to sue – known as standing – because the memorandum harms them in two ways. First, they argued that the memorandum, if implemented, would have the potential to reduce congressional representation for certain states. Second, they said the memorandum had a “chilling effect” on participation in the census, causing immigrant communities to be undercounted.

The district court said the first theory was likely “too remote and hypothetical,” because it was too early to know whether any states would actually lose House seats as a result of the memorandum. But the district court accepted the second theory. The very existence of the memorandum, the court found, was deterring some immigrants (both citizens and noncitizens) from responding to the census, either because they feared that census data “will be used in immigration enforcement” or because “they perceive[d] their participation as ultimately futile” in light of the memorandum. The resulting undercount of immigrant populations, the district court concluded, risks harming the challengers through reduced representation and reduced federal funds that are tied to census data.

In a brief to the Supreme Court, the Trump administration contended that the case is now moot – that is, there is no longer a live controversy for the justices to decide. Any injury from a “chilling effect” on census participation can no longer support the challengers’ claim, the government said, because the collection of census data ended in mid-October. Even if there had been a chilling effect, the government observed, barring the secretary from implementing the memorandum now won’t do anything to prevent it.

The challengers responded that, as a result of the memorandum, there was “widespread confusion” among immigrants about whether they should participate in the census, reducing response rates and prompting the nonprofit groups that are challenging the memorandum “to divert substantial resources” to encourage participation. Even though the data collection effort has finished, the challengers continued, the case is not moot because of the possibility that a similar dispute could arise in the future. The census data collection takes eight or nine months, the challengers pointed out, which is not enough time to resolve a lawsuit claiming that a policy chills participation in the census. In similar circumstances, the Supreme Court has allowed seemingly moot claims to proceed if they are “capable of repetition” and their short-term nature would make them effectively unreviewable.

The challengers also argued that the potential harm from a loss of congressional representation is not too speculative to establish standing. The whole point of the memorandum is to take away seats in the House from states that have, relatively speaking, more residents who are not in the country legally. This is not a theoretical harm, the challengers told the justices, because the Trump administration has confirmed that it intends to implement the policy outlined in the memorandum. If it does, there is “more than a substantial risk” that at least two states – California and Texas – will lose seats.

The state and local governments contended that they have a right to sue for the additional reason that removing people who are not in the country legally from the population count could affect federal funding based on the census. They observed that the Trump administration has “conspicuously not committed to insulate” the state and local government challengers “from any funding injury.”

Substantive issues: Executive discretion and the meaning of “persons in each state”

The Trump administration argued that the district court’s ruling is also wrong on the merits. Congress, it contended, gave the secretary of commerce discretion to determine how to conduct the census, including how to count the number of people in each state. Using that discretion, the administration continued, the president can decide to instruct the secretary to do exactly what he has done here – provide two different population counts – to be used for his report to Congress. No one – either the district court or the challengers – has identified any laws or cases that suggest otherwise, the administration suggested.

The administration maintained that there “is ample historical and structural evidence” indicating that the population count does not need to include people who are living in the United States without legal authorization. The reference in the Constitution and federal law, the administration explained, to the phrase “persons in each state” is interpreted as applying to a state’s “inhabitants” – which is an “indeterminate” term that requires the president to exercise judgment.

The challengers painted a very different picture, arguing that the Constitution makes clear that everyone who lives in a state, whether they are in the country legally or not, should be included in the population count used to allocate seats in the House. The Constitution requires seats in the House to be allocated based on the “whole number” of “persons in each state,” they noted. People who are in the country illegally are “persons,” they reasoned, while the phrase “in a state” has long been understood to mean “usual residence” – that is, the place where someone lives and sleeps. The drafters of the Constitution included two exceptions to this general rule – for Native Americans and slaves – that confirm that everyone else who lives in the country should be included in the count for purposes of apportionment.

Federal laws also indicate that everyone who lives in a state should count toward its population for purposes of seats in the House, the challengers added. The Census Act requires the secretary of commerce to report “the tabulation of total population by States” to the president, who is then required to transmit “a statement showing the whole number of persons in each State” to Congress. “There is no reasonable way,” the challengers concluded, “to read ‘total population’ to exclude persons based on immigration status.” And indeed, the challengers observed, when the law was passed in 1929, the census had counted everyone in the country, including people who were here illegally.

Finally, the challengers told the justices that the Constitution and federal laws also require the census to be the only basis for the allocation of seats in the House. The Constitution indicates that apportionment should be based on the “numbers” determined by the census, while the Census Act outlines the steps for reapportionment based on the total-population numbers resulting from the census. Congress specifically chose to have the secretary of commerce and the president rely solely on the census for reapportionment to keep politics out of the process, the challengers argued. Using non-census “administrative records” – as the administration has proposed – to remove some noncitizens from the census’ total-population count would run afoul of Congress’ directive, the challengers said.

After Monday’s oral argument on, the justices are likely to issue their decision relatively quickly, to allow the reapportionment to proceed on schedule. But the tight timeframe for finalizing the census data and delivering the apportionment information raises another question outside of the courtroom: whether the administration, even with a favorable ruling, will be able to implement Trump’s memorandum as a practical matter. The New York Times reported last week that census officials have concluded that they will be unable to produce final population totals to be used in apportionment until Jan. 26. That would put the apportionment numbers under the control of the Biden administration, which almost certainly would revert to the policy of including all persons regardless of immigration status.

This article was originally published at Howe on the Court.

The post Case preview: Justices to review Trump’s plan to adjust census data used for congressional apportionment appeared first on SCOTUSblog.

Court issues new circuit assignments

Court issues new circuit assignments

A little less than a month after the confirmation of Justice Amy Coney Barrett, the Supreme Court on Friday issued a new set of circuit justice assignments, which take effect immediately. Barrett was assigned to the 7th Circuit, where she served as a judge for three years before becoming a justice. Two other justices, Sonia Sotomayor and Neil Gorsuch, were also assigned for the first time to the circuits where they had previously served as judges – Sotomayor to the 2nd Circuit and Gorsuch to the 10th Circuit.

A circuit justice is primarily responsible for emergency requests (for example, an application to block an execution or to allow it to go forward) from the geographic area covered by his or her circuit, as well as more mundane matters, such as requests to extend filing deadlines. However, justices can and often do refer significant emergency requests to the full court – a role that has taken on increased importance in recent years with the sharp uptick in activity on the court’s “shadow docket.” A map of geographical regions covered by each circuit is available here.

Sotomayor’s move to the 2nd Circuit, which had previously been assigned to the late Justice Ruth Bader Ginsburg (who grew up in New York City and lived there before moving to Washington to become a judge on the U.S. Court of Appeals for the District of Columbia Circuit), kicked off a game of musical circuits among the justices. Sotomayor had previously been responsible for the 10th Circuit, which is now assigned to Gorsuch, as well as the 6th Circuit, which is now assigned to Justice Brett Kavanaugh. Kavanaugh, who had previously been assigned to the 7th Circuit, also took on the 8th Circuit, ceding the 7th Circuit to Barrett.

The new circuit assignment list signaled a reprieve for Justice Stephen Breyer, who normally serves as the circuit justice for the relatively small 1st Circuit. Since Ginsburg’s death in September, Breyer has also been pinch-hitting under the Supreme Court’s rules as the circuit justice for the larger and busier 2nd Circuit. Emergency requests and applications for extensions from the 2nd Circuit will now go initially to Sotomayor instead.

This post was originally published at Howe on the Court.

The post Court issues new circuit assignments appeared first on SCOTUSblog.

Tuesday round-up

Tuesday round-up

Here’s a round-up of Supreme Court-related news and commentary from around the web:

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!

The post Tuesday round-up appeared first on SCOTUSblog.

Friday round-up

Friday round-up

After a series of late Thursday-night orders that cleared the way for the federal government to carry out the latest execution of a person on death row, the Supreme Court meets Friday morning for its weekly private conference to consider pending petitions seeking the court’s review. Among the petitions slated to be discussed are two that were relisted from last week’s conference: one involving the “community caretaking” exception to the Fourth Amendment, and the other involving the authority of Native American police officers to detain and investigate non-tribe members. Also on the agenda is a case involving the legality of programs in Medicaid that impose work requirements on recipients as a condition for maintaining health coverage. For a list of all the significant petitions we’re watching, see our petitions page.

Here’s a round-up of other Supreme Court-related news and commentary from around the web:

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!

The post Friday round-up appeared first on SCOTUSblog.

No new grants from Friday’s conference

No new grants from Friday’s conference

After adding two new cases to their merits docket for the current term on Friday, the justices did not grant any new petitions for review in an order list released on Monday morning.

The justices declined to hear the case of Calvin McMillan, who is one of 32 people on death row in Alabama sentenced to death by a judge after the jury voted for life in prison. McMillan had argued that his execution would violate the Eighth Amendment’s ban on cruel and unusual punishment because he was sentenced by “judicial override.”

The justices also turned down a challenge by retail giant Walmart to a Texas law that bars public corporations from obtaining a license to own a retail liquor store. Walmart argued that the law violates the Constitution’s commerce clause by discriminating against out-of-state businesses.

The justices did not act on the challenges by the Roman Catholic diocese of Brooklyn and two Orthodox Jewish synagogues to the restrictions placed by New York on attendance at worship services. There is no schedule for the justices to act on those requests, but the challenges have now been fully briefed, so the court could issue an order at any time.

The justices will return to the virtual bench on Monday, Nov. 30. Their next conference is scheduled for Friday, Dec. 4.

This post is also published at Howe on the Court.

The post No new grants from Friday’s conference appeared first on SCOTUSblog.

Monday round-up

Monday round-up

After agreeing Friday to review two new cases — both involving the scope of police officers’ search-and-seizure authority — the Supreme Court will begin Thanksgiving week by releasing additional orders from its Friday conference. Among the issues pending on the court’s docket this week is a pair of emergency requests from religious organizations seeking to stop New York from enforcing restrictions on large gatherings at religious congregations. New York responded to the requests last week by telling the justices they should not get involved in the dispute.

Here’s a round-up of other Supreme Court-related news and commentary from around the web:

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!

The post Monday round-up appeared first on SCOTUSblog.