This Week’s Brief: December 16

As the holidays near, the Court officially met for the final time in 2019—and the decade. There were no decisions or oral arguments this week, only orders. The Justices added five new cases to its docket, bringing the total number of merits cases in O.T. 2019 to 67. They also denied review in City of Boise, Idaho v. Martin, an intriguing case from the Ninth Circuit about whether a law banning homelessness violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. All in all, a quiet week for our nation’s highest court. Here’s your brief for the week of December 16.


This Week:
Decisions: 0
Cases Argued: 0
Cert. Grants: 4

O.T. 2019:
Cases Decided: 3
Cases Remaining: 61
Weeks Left in Term: 27


The Court released additional orders from last Friday’s private conference; it didn’t grant review for any cases.

In the orders list, the Justices decided not to take up City of Boise, Idaho v. Martin, a mainstay on my list of high-profile petitions. The case concerns two Boise ordinances that make it a misdemeanor to camp or sleep in public places within city limits. The Ninth Circuit struck down the ordinances, holding that they violate the Eighth Amendment when enforced against the homeless. The city asked the Supreme Court to review the Ninth Circuit’s ruling, but the Justices left it in place. There were no noted dissents.


The Court held no proceedings on Tuesday.


The Court held an unscheduled private conference on Wednesday and added five new cases to its docket (two of which were consolidated together). In Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel, the Court will ascertain the scope of its “ministerial exception” to civil suits. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Justices ruled that courts cannot adjudicate employment-related civil cases brought by “ministerial” employees against their religious employers. Such adjudication is prohibited by the Free Exercise and Establishment Clauses of the First Amendment. In the ruling, the Justices laid out four “considerations” to aid courts in deciding whether an employee is a “minister.” As relevant here, the fourth consideration is the “important religious functions [the employee] perform[s].” Since Hosanna-Tabor, a number of state and federal courts have zeroed in on this fourth consideration, often deciding cases on the basis of the “religious functions” an employee performs without looking to any of the other three considerations (like a “religious title”). But in the two cases here, the Ninth Circuit ruled that an employee who performs important religious functions is not, alone, sufficient to invoke the ministerial exception. The Justices will now review the Ninth Circuit’s decisions.

The Court will also review Torres v. Madrid, a bizarre Fourth Amendment case out of the Tenth Circuit. What does it mean to be “seized” for the purposes of “unreasonable” searches and seizures? In this case, Roxanne Torres was sitting in her car when two police officers began to approach her. Mistaking them for carjackers, Torres drove away. The officers fired at her, hitting her twice. When Torres sued the officers for using excessive force, the Tenth Circuit dismissed her suit, holding that Torres was not unreasonably seized under the Fourth Amendment because the officers’ attempt at detaining her was unsuccessful. The problem, however, is that other federal appeals courts have ruled oppositely: a police officer’s attempt at detaining someone can still qualify as an unreasonable seizure even if it’s unsuccessful. The Justices will now decide whether an attempt to detain a suspect via physical force must be successful to qualify as a seizure under the Fourth Amendment.

The other two cases are more for technical wonks. In City of Chicago v. Fulton, the Court will decide whether a person whose property is a subject of interest in a bankruptcy estate has an obligation to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition under the Bankruptcy Code’s “automatic stay” (11 U.S.C. §362 et seq). And in Pereida v. Barr, the Justices will determine whether a noncitizen, who has been convicted of a state crime, can apply for relief from deportation proceedings when the record from his/her criminal conviction does not clearly show that the noncitizen’s state crime is analogous to a relief-disqualifying federal crime listed in the Immigration and Nationality Act.

Finally, at the conference itself, the Justices reviewed the petitions on their docket and discussed whether to grant review for any of them. We can expect more news from this conference in the Court’s next orders list after the New Year. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Chiafalo v. United States. This case concerns the constitutionality of “faithless electors,” or members of the Electoral College who vote for a different presidential candidate than the one whom a majority of the voters in a state chose. The questions presented are (1) whether a state can dictate how an elector casts his/her vote, and (2) whether a law that penalizes an elector for voting “faithlessly” violates the elector’s First Amendment rights.
  • Bell v. Pennsylvania. This is the case of Thomas Bell, a Pennsylvania motorist who refused under the Fourth Amendment to consent to a warrantless blood test. Instead of obtaining a warrant, the officers decided to use Bell’s refusal as evidence at trial that he was guilty of driving under the influence. The question presented is whether such a refusal can be used as evidence at trial of guilt for the offense of driving under the influence.
  • Lilley v. New Hampshire. This case involves a challenge to a Laconia, NH city ordinance that prohibits a woman from publicly exposing her breast “with less than a fully opaque covering of any part of the nipple.” Three women charged with violating the ordinance challenged their convictions on the ground that, since the regulation applies to women but not to men, it violates the Fourteenth Amendment. The question before the Court is whether Laconia’s city ordinance violates the Equal Protection Clause of the Fourteenth Amendment.

The Court held no proceedings Thursday and Friday.

The Week Ahead

The Justices are now on their year-end recess, and no proceedings are scheduled for this coming week. The Court will meet again for a private conference on Friday, January 10. The Court will be back in session with oral arguments beginning Monday, January 13. So, unless there are any unforeseen events at the Court the next few weeks, I will pause my weekly briefs for a short time.

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