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Last month the Supreme Court announced that it would, for the second time, review a case from Virginia challenging the legislative districts drawn in 2011 for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – the idea that legislators relied too much on race when drawing the maps. Today Virginia legislators were back at the court, asking the justices to block proceedings in the lower court aimed at coming up with new maps for the 2019 election until the Supreme Court can rule on the dispute.

The Virginia case is one with which the justices are already very familiar. Last year, the court ruled that a lower court had applied the wrong legal standard when it rejected claims that 12 districts were the product of racial gerrymandering. The Supreme Court upheld one district, but it ordered the lower court to take a fresh look at the other 11 – and, in particular, at whether race was the primary factor used to draw those districts.

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Petitions of the week

By on Dec 14, 2018 at 9:34 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the applicability of the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act to certain suits; whether the establishment clause precludes courts from considering relevant, admissible secular evidence in ordinary trust and property disputes because the litigants are religious parties; and the jurisdiction of federal courts pursuant to Section 301(a) of the Labor Management Relations Act in a suit seeking relief for the violation of a collective-bargaining agreement.

The petitions of the week are:

18-530

Issues: (1) Whether, in ordinary trust and property disputes, the establishment clause precludes courts from considering secular evidence that is relevant and admissible under governing state law merely because the litigants are religious parties; (2) whether, in ordinary trust and property disputes, excluding secular evidence that is relevant and admissible under state law merely because the litigants are religious parties violates the free exercise clause by treating religious parties differently from—and, here, less favorably than—secular parties; and (3) whether, in ordinary trust and property disputes, federal courts sitting in diversity may disregard governing state substantive law and fashion federal common law merely because the litigants are religious parties.

18-580

Issue: Whether federal courts have subject-matter jurisdiction pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), over a complaint for intentional and negligent misrepresentation and declaratory relief, when the lawsuit seeks relief from claims that the plaintiff violated the parties’ collective-bargaining agreement.

18-575

Issue: Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation.

18-581

Issue: Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation.

Friday round-up

By on Dec 14, 2018 at 6:58 am

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that the federal government yesterday asked the Supreme Court to allow it to enforce the Trump administration’s ban on service in the military by transgender people while its appeals of adverse decisions in three cases play out in the lower courts. At CNN, Ariane de Vogue and Devan Cole report that “[t]he administration already has a pending request for the Supreme Court to bypass the lower courts and take up a case concerning the ban, which has been blocked by lower courts,” and that “[n]ow the Department of Justice is taking it a step further” by seeking permission to implement the ban if the Supreme Court does not take up the cases this term. Additional coverage comes from Kimberly Robinson at Bloomberg Law.

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Last month the Trump administration asked the justices to allow it to bypass the courts of appeals and immediately take up three cases (herehere and here) challenging the government’s ban on service in the military by most transgender individuals. Today the administration was back at the Supreme Court, giving the government a back-up option: If the justices don’t want to bypass the courts of appeals, they should at least allow the government to enforce the ban while the appeals play out. The application for emergency relief was the second one this week from the government, which on Tuesday asked the justices to allow it to enforce a policy that would bar immigrants who enter the country illegally along the southern border from seeking asylum. These kinds of requests for emergency relief have been made necessary, the Trump administration contended, because the lower courts have often gone too far, thwarting the government’s efforts to implement important policies.

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This term, the Supreme Court will hear argument in its 100th case decided below by the U.S. Court of Appeals for the Federal Circuit. The Supreme Court’s recent grant of Kisor v. Wilkie also marks the fourth case granted from the Federal Circuit this term. This is by no means a small fraction of the Supreme Court’s total caseload. In terms of federal courts of appeals, the Supreme Court has only granted more cases this term from the U.S. Courts of Appeals for the 2nd, 6th, 9th and 11th Circuits. When we look at the number of cases filed in these courts, though, the Federal Circuit’s filings make up less than three percent of the total filings across the appeals circuits.

Click graph to enlarge.

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Lindsay See is the solicitor general of West Virginia, which led a group of 27 other states and the governor of Kentucky in a cert-stage amicus brief in support of the petitioners in The American Legion v. American Humanist Association.

No case is ever a lock for Supreme Court review, but the odds were always in favor of the consolidated cases in The American Legion v. American Humanist Association and Maryland-National Capital Park & Planning Commission v. American Humanist Association. The U.S. Court of Appeals for the 4th Circuit’s decision below called for the destruction of a near-century-old war memorial honoring local soldiers who died in World War I. With a trifecta of striking facts, intractable circuit splits and doctrinal confusion, and implications for hundreds of other public memorials nationwide, there was little surprise that this case caught the Supreme Court’s eye.

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Richard B. Katskee is Legal Director at Americans United for Separation of Church and State.

Symbols have power. They communicate complex ideas, often more effectively and more forcefully than mere words. They are remembered for decades or even centuries. They speak to the heart, not just the head. And what is true for symbols generally is doubly so for religious ones: They convey at a glance millennia of shared history, collective aspirations and triumphs to those who hold them dear.

To Christians and non-Christians alike, few things are more universally culturally familiar, and perhaps none are more laden with meaning, than the Latin cross. Since the earliest days of Christianity, the cross has been the physical embodiment of Christian tenets of resurrection and redemption — the means to teach religious doctrine while also uniting and rallying communities of believers. Thus, Pope Francis has explained that “[t]he Christian Cross is not something to hang in the house ‘to tie the room together’ … or an ornament to wear, but a call to that love, with which Jesus sacrificed Himself to save humanity from sin and evil.” It shouldn’t come as a surprise, therefore, that viewing the cross can be a profound experience for those who hold it dear. That’s the whole point, after all.

For people of other faiths, however, being confronted with an official display of a Latin cross may be a profound experience in a quite different way: It is not sacred to them, yet the government is telling them to venerate it.

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Thursday round-up

By on Dec 13, 2018 at 7:54 am

Briefly:

  • At CNBC, Tucker Higgins reports that “Justice Brett Kavanaugh has only been on the bench for two months, but a controversial decision announced this week has abortion opponents starting to worry that he may not be the ally on the high court that they expected.”
  • Lyle Denniston reports at Constitution Daily that “[a] group of Maryland Republican voters, claiming that they were penalized for supporting their party’s candidates in the polling booth, asked the Supreme Court on Tuesday to make a sweeping review of the constitutionality of partisan gerrymandering, and to do so before next summer,” “call[ing] for back-to-back hearings, on the same day, in their case and in a similar pending case from North Carolina.”
  • At Law360, Edward Zelinsky writes that the justices’ comments during oral argument in Dawson v. Steager “suggest that they are grappling with how broadly they should rule as they invalidate West Virginia’s tax scheme which taxes the pensions of federal retirees but exempts from income taxation the retirement payments of certain state retirees.”
  • At Greenwire (subscription required), Ellen Gilmer reports that “[t]he lead players of several landmark Clean Water Act scuffles are urging the Supreme Court to take up a new case involving the scope of the law,” filing an amicus brief in support “of a Montana landowner criminally prosecuted for digging ponds and diverting a creek on private property and national forestland.”

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Luke Goodrich is Vice President and Senior Counsel at The Becket Fund for Religious Liberty, which filed a cert-stage amicus brief in support of the petitioners in The American Legion v. American Humanist Association.

The most interesting thing about the Maryland Peace Cross case won’t be who wins. (The Supreme Court will almost certainly uphold the cross.) The interesting part will be which path the court takes to get there.

There are three main possibilities: the “Lemon test,” a historical approach, or a punt. Which path the court takes will have profound implications for the relationship between church and state.

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Heather L. Weaver is a senior staff attorney for the Program on Freedom of Religion and Belief at the American Civil Liberties Union.

A 40-foot-tall Latin cross made of marble and cement stands on public property at one of the busiest intersections in Bladensburg, Maryland. The Bladensburg Cross is impossible to miss and overshadows everything nearby. Erected as a memorial to soldiers who died in World War I, it is now owned and maintained by a state entity, the Maryland-National Capital Parks and Planning Commission. Last month, the Supreme Court agreed to decide whether the cross display violates the establishment clause of the First Amendment to the U.S. Constitution.

It should be a no-brainer.

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