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We have opinions! The Supreme Court issued six opinions last week, closing out the October 2017-2018 term. Here we go!
We'll be taking a cue from the Justices and breaking out our beach chairs for summer. Until further notice this publication will go out the first Monday of the month, so we will see you August 1st! Worried you'll miss us? Follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information. |
In total, the Supreme Court heard argument and issued opinions in 69 cases this term, all of which you can track on our term overview page. Here are this terms final opinions:
- In Trump v. Hawaii, the Supreme Court reversed the Ninth Circuit’s ruling on the Trump administration’s travel ban, ruling that the plaintiffs who filed suit to block the ban had not shown a likelihood of success on the merits. The court reversed a lower court’s grant of a preliminary injunction and remanded the case to the lower courts for further proceedings. The court had previously stopped the majority of the injunction from going into effect.
On September 24, 2017, President Donald Trump issued a presidential proclamation outlining new travel restrictions for individuals traveling from eight different countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The proclamation replaced two earlier executive orders that also imposed travel restrictions. Plaintiffs who had challenged those earlier orders amended their suit to include the September 2017 order. The Supreme Court issued a stay that prevented lower courts' injunctions against the order from going into effect while the appeal was pending. On December 22, 2017, the Ninth Circuit affirmed in part and reversed in part a district court's ruling enjoining the September 2017 order from going into effect. The Ninth Circuit upheld an injunction against part of the proclamation, concluding that the president had exceeded his authority in issuing it.
In a 5 - 4 decision authored by Chief Justice John Roberts, the Supreme Court reversed the Ninth Circuit’s ruling. Roberts was joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Focusing its decision on the district court’s grant of a preliminary injunction, the court concluded that the plaintiffs could not show likelihood that they would succeed on the merits in the case (plaintiffs must show they are likely to succeed on the merits in order for a court to grant a preliminary injunction) because the order fell within the president’s broad power over immigration matters. Reviewing immigration law and presidential authority over immigration, Roberts wrote, “The Proclamation does not exceed any textual limit on the president's authority.” The plaintiffs had argued that the proclamation was motivated by religious animus and argued that President Trump’s other public statements about immigration and Islam supported their case. Roberts ruled that while the court may consider those arguments, the court “will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” He concluded, “Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented from the court’s ruling. In her dissent, Sotomayor wrote that she believed the plaintiffs had demonstrated likelihood of success on the merits. She wrote, “The majority holds otherwise by ignoring the facts [and] misconstruing our legal precedent . . . Whatever the merits of plaintiffs’ complex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Establishment Clause’s guarantee of religious neutrality.”
- In Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), the Supreme Court voted to overruled Abood v. Detroit Education Association, a 1977 case in which the Supreme Court had ruled that public sector unions could charge non-union members fees to support the parts of unions' work from which those employees benefited. In this case, Janus v. AFSCME, a public sector employee in Illinois challenged Illinois' agency fee arrangement, arguing that being required to pay the fees violated his First Amendment rights.
In an opinion authored by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch, a majority of the Supreme Court agreed. Alito concluded that the agency fee arrangement "violates the First Amendment and cannot continue." He rejected arguments about states' and unions' reliance on the Abood decision, writing, "no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Aboodhas countenanced for the past 41 years."
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. In Justice Kagan's dissent, joined by all the dissenting justices, Kagan argued that Abood was a workable precedent that was "deeply entrenched, in both the law and the real world" and should not have been overruled. She argued, "The balance Aboodstruck between public employers’ interests and public employees’ expression is right at home in First Amendment doctrine."
Wondering where the cases came from this term? Check out this chart showing the number of appeals from each lower court:
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Justice Kennedy announces retirement
Justice Anthony Kennedy announced he was retiring from the Supreme Court of the United States, effective July 31, 2018. In an official release, Kennedy cited a desire to spend more time with his family as the reason for his retirement. Kennedy was considered by many to be the court's swing vote, often casting the deciding vote between the court's more conservative and liberal members. His retirement will allow President Donald Trump (R) an opportunity to make his second appointment to the nation's highest court.
In his 30-year career on the bench, Kennedy authored a number of noteworthy opinions: Obergefell v. Hodges, Citizens United v. FEC, and Planned Parenthood of Southeastern Pa. v. Casey.
Reactions
- The White House released the following statement on June 27, 2018:
"Today, we thank Justice Anthony M. Kennedy for his thirty years of distinguished service on the Supreme Court of the United States. In 1987, President Reagan nominated him to the Court, and he was swiftly confirmed without opposition. A Californian—like the President who appointed him—Justice Kennedy is a true man of letters. During his tenure on the Court, he authored landmark opinions in every significant area of constitutional law, most notably on equal protection under the law, the separation of powers, and the First Amendment’s guarantees of freedom of speech and religion.
Justice Kennedy has been a tireless voice for individual rights and the Founders’ enduring vision of limited government. His words have left an indelible mark not only on this generation, but on the fabric of American history."
"The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall."
"This is the most important Supreme Court vacancy for this country in at least a generation. Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake."
- Brent Kendall, The Wall Street Journal:
"Justice Kennedy’s decision to step down is a seismic event in the nation’s capital, one certain to create an impassioned political battle over the Supreme Court. … Justice Kennedy’s departure gives Mr. Trump the chance to shift the court in a considerably more conservative direction—potentially for decades. More immediately, it sets the stage for what is likely to be the toughest fight over a court seat in recent memory, with congressional elections looming and liberals still angry over Republicans’ refusal to consider former President Barack Obama’s nominee for the most recent vacancy."
"An America after Anthony Kennedy looks significantly different from America before. The movement against mass incarceration could run into unprecedented resistance from the Court, and the anti-abortion movement could notch its greatest victories in a half-century. This Supreme Court vacancy will give Donald Trump the power to shift jurisprudence on a range of critical issues. It could wind up being the most important part of his legacy."
Next in the process
Although the rules for appointing and confirming a U.S. Supreme Court justice are set out in the U.S. Constitution, the process for choosing nominees is not codified in law. It is not uncommon for the president to consult Senate leadership and the leaders of the Senate Judiciary Committee before deciding on a nominee. President Trump said on Tuesday that his nominee will come from a list of 25 possible nominees that the White House released in November. On Thursday, Politico reported that the White House is hoping to have a nominee before July 10.
Possible nominees
The names below appeared on a list of 25 potential Supreme Court nominees released in November 2017. Trump said that Kennedy's successor would come from this list:
- Amy Coney Barrett, of the U.S. Court of Appeals for the Seventh Circuit.
- Keith Blackwell, of the Georgia Supreme Court.
- Charles Canady, of the Florida Supreme Court.
- Steven Colloton, of the U.S. Court of Appeals for the Eighth Circuit.
- Allison Eid, of the U.S. Court of Appeals for the Tenth Circuit.
- Britt Grant, of the Georgia Supreme Court.
- Raymond Gruender, of the U.S. Court of Appeals for the Eighth Circuit.
- Thomas Hardiman, of the U.S. Court of Appeals for the Third Circuit.
- Brett Kavanaugh, of the U.S. Court of the Appeals for the D.C. Circuit.
- Raymond Kethledge, of the U.S. Court of Appeals for the Sixth Circuit.
- Joan Larsen, of the U.S. Court of Appeals for the Sixth Circuit.
- Mike Lee (R), U.S. Senator from Utah.
- Thomas Lee, of the Utah Supreme Court.
- Edward Mansfield, of the Iowa Supreme Court.
- Federico Moreno, of the U.S. District Court for the Southern District of Florida.
- Kevin Newsom, of the U.S. Court of Appeals for the Eleventh Circuit.
- William Pryor, of the U.S> Court of Appeals for the Eleventh Circuit.
- Margaret Ryan, of the U.S. Court of Appeals for the Armed Forces.
- David Stras, of the U.S. Court of Appeals for the Eighth Circuit.
- Diane Sykes, of the U.S. Court of Appeals for the Seventh Circuit.
- Amul Thapar, of the U.S. Court of Appeals for the Sixth Circuit.
- Timothy Tymkovich, of the U.S. Court of Appeals for the Tenth Circuit.
- Robert Young, retired judge of the Michigan Supreme Court.
- Don Willett, of the U.S. Court of Appeals for the Fifth Circuit.
- Patrick Wyrick, of the Oklahoma Supreme Court.
For more information on Kennedy's Supreme Court vacancy, click here.
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Confirmations
The United States Senate did not confirm any additional nominees since our last issue.
The Senate has confirmed 42 of President Trump’s nominees to federal courts tracked in Ballotpedia’s Federal Vacancy Count.
Nominations
President Trump did not announce any new nominations last week.
Vacancies
There are currently 153 vacancies in the federal judiciary. Of those 153 vacancies, 64 have no nominee as of yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 30 judges have announced their intention to leave active judicial status during Trump’s first term. There are 89 pending nominations to seats tracked by Ballotpedia’s Federal Vacancy Count.
Committee action
Last week, the Senate Judiciary Committee met to report nominees out of committee for a full confirmation vote. Five nominees were reported and will now face a confirmation vote in the U.S. Senate:
- Holly A. Brady, nominee for the United States District Court for the Northern District of Indiana.
- Andrew Lynn Brasher, nominee for the United States District Court for the Middle District of Alabama.
- James Patrick Hanlon, nominee for the United States District Court for the Southern District of Indiana.
- David Steven Morales, nominee for the United States District Court for the Southern District of Texas.
- Lance E. Walker, nominee for the United States District Court for the District of Maine.
Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.
Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.
Or, if you prefer, we maintain a list of individuals nominated by President Trump. |
Here’s what we’re looking ahead to this month:
- The Senate Judiciary Committee is not scheduled to meet in July.
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