This Week’s Brief: February 17

This was the third and final week of the Court’s inter-sitting recess. Headlines this week came from the Court’s decision to allow the Trump Administration to enforce its new “public charge” immigration rule nationwide—over the dissent of four Justices (including a seven-page dissenting opinion from Justice Sotomayor). Here’s your brief for the week of February 17.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Cases Argued: 0
Cert. Grants: 0

O.T. 2019:
Cases Decided: 5
Cases Remaining: 68
Weeks Left in Term: 18


The Court was off on Monday for President’s Day.


The Court held no proceedings on Tuesday and Wednesday.


Thursday evening, the Court declined to stay the execution of Nicholas Sutton, a Tennessee death row inmate. Sutton in 1985 was serving a life sentence for killing his grandmother when he stabbed and killed a fellow inmate, for which he was sentenced to death. There were no recorded dissents.


On Friday, a five-member majority of the Court voted to stay an injunction against the Trump Administration’s new “public charge” immigration rule. Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh voted yea; Justices Ginsburg, Breyer, Sotomayor, and Kagan noted nay.

On January 27, the same five-Justice majority voted to stay a similar injunction against the public charge rule. Recall that, when the Department of Homeland Security (DHS) issued the rule, four district courts separately issued preliminary injunctions. Two injunctions were stayed by federal appeals courts. One injunction was upheld by the appeals court but stayed by the Supreme Court on January 27. That injunction had barred DHS from enforcing the rule anywhere in the United States, except for the area subject to the fourth injunction (Illinois). DHS appealed to the Supreme Court for a stay of that injunction—which the Court has now granted—so that the Administration can enforce the rule nationwide while merits litigation is ongoing.

Justice Sotomayor penned a nearly seven-page opinion explaining her dissent from the grant of stay. She devoted the first half to the procedural history of the rule and the injunction litigation. Then she scrutinized the government’s arguments and the majority’s decision. Staying a preliminary injunction is not your run-of-the-mill occurrence; it is a form of “extraordinary” relief (quoting Williams v. Zbaraz (1979) (Stevens, J., in chambers)). To qualify, a party must demonstrate not only that the matter presents an important legal issue and that the litigant has a high likelihood of succeeding on the merits; the party must also show that it would suffer “irreparable harm” absent a stay. “The Government has not made that showing here,” Sotomayor says. It already could enforce the rule in 49 of the 50 states, after a majority of the Court granted the previous application for a stay. Moreover, the Seventh Circuit Court of Appeals was set to review the district court’s preliminary injunction and the entire case on the merits next week. The Administration “has not quantified or explained any burdens that would arise from this state of the world,” Sotomayor writes—let alone any “irreparable” burdens.

In a broader context, Sotomayor says this case brings to light two significant legal developments. First, the government seems to take the “extraordinary” measure of stay relief as a “new normal.” Second, the Court itself “has been all too quick” to grant the government’s requests for stays. This “upend[s] the normal appellate process,” Sotomayor argues, “putting a thumb on the scale in favor of the party that won a stay.” Moreover, Sotomayor is concerned that the Court is showing favoritism to the federal government. “[T]he Court’s recent behavior on stay applications has benefited one litigant over all others,” Sotomayor writes. “I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Also on Friday, the Court met for its weekly private conference, at which it reviews the petitions on its docket and debates whether to grant review for any of them. We can expect more news from this conference in the Court’s orders list next Monday. 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.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • California v. Texas. This case concerns the oft-challenged “individual mandate” in the 2010 Patient Protection and Affordable Care Act (ACA). In December 2019, the Fifth Circuit Court of Appeals held that the Tax Cuts and Jobs Act of 2017 (TCJA) overruled the Supreme Court’s decision in NFIB v. Sebelius (2012) upholding the constitutionality of the individual mandate. The Fifth Circuit then ordered the district court to consider whether the ACA must be struck down. The questions before the Supreme Court are (1) whether Petitioners have standing; if so, (2) whether the TCJA overruled NFIB; and if so (3) whether the individual mandate is severable from the ACA.
  • 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.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

The Court’s February sitting begins next week. On Monday, the Court will release orders from Friday’s conference. Two cases are also set for oral argument: U.S. Forest Service v. Cowpasture River Preservation Assn., involving statutory interpretation of the 1920 Mineral Leasing Act; and Opati v. Sudan, about damage recovery under the 1978 Foreign Intelligence Surveillance Act. On Tuesday, there is a possibility of opinions. The Court is also slated to hear arguments in United States v. Sineneng-Smith, a constitutional challenge to a federal statute that prohibits encouraging or inducing illegal immigration for private financial gain. Wednesday has a similar schedule; possibility of opinions, and then oral argument in Lomax v. Ortiz-Marquez, a criminal procedure case. Finally, on Friday the Court will meet for its weekly private conference.

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