Plain English / Cases Made Simple

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Over the years, the Supreme Court has sometimes struggled to explain when and why religious symbols are permitted in the public sphere and when they are not. Sometime early in 2019, the justices will hear oral argument in a dispute over the constitutionality of a cross that sits on a traffic median in the suburbs outside Washington, D.C. The challengers say that the cross is an illegal government endorsement of Christianity, while its defenders counter that the cross is simply a secular war memorial. The justices’ eventual opinion will likely decide the fate of the cross, but the ruling could also clarify – or potentially even revamp – the Supreme Court’s test for resolving these kinds of challenges.

The Constitution’s establishment clause bars the government from both establishing an official religion and favoring one religion over another. In 1971, in a case called Lemon v. Kurtzman, the Supreme Court struck down state programs that provided financial support for private schools, including religious ones. At the same time, the justices also outlined a test for courts to use to determine whether a government law or practice violates the establishment clause. They concluded that the law or practice will pass constitutional muster if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

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This post — which is an updated version of posts that we have published in earlier terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs. If you have a question that you don’t see answered here, please feel free to ask it during today’s live blog.


Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the court took at its most recent conference, which are reflected in a document (“the order list”) that the court releases to the public. The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert,” short for “certiorari”), but the court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits.

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In 1986, when Congress passed the Stored Communications Act, the World Wide Web did not yet exist; that would not happen until three years later, when British scientist Tim Berners-Lee invented it in Switzerland. Electronic mail did exist, but – although Queen Elizabeth II had used it to send a message in 1976 – it was nowhere near as ubiquitous as it would later become. The SCA gives the government, if it obtains a warrant, the power to require an email provider to turn over the contents of emails. When the Supreme Court returns to the bench at the end of this month, the justices will consider a question that Congress likely didn’t think about 32 years ago: Is an email provider located in the United States required to turn over emails that it is storing overseas?

The case now before the Supreme Court began in December 2013, when the federal government applied for a warrant that would require computer giant Microsoft to turn over information for an email account that the government believed was being used for drug trafficking in or into the United States. When the warrant was served on Microsoft at its Washington state headquarters, the company agreed to provide records that were stored in the United States, including the email customer’s electronic address book. Citing a presumption that U.S. law does not generally apply outside the country, however, it refused to provide the contents of the emails, which were stored in Ireland. After the U.S. Court of Appeals for the 2nd Circuit ruled for Microsoft, the Supreme Court agreed last year to weigh in.

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In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options.

The act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Centers that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. California’s attorney general and local government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.

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Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed … and upset. Masterpiece’s owner, Jack Phillips, is a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. And because Phillips also believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.


Craig and Mullins went to the Colorado Civil Rights Division, where they accused Phillips of discriminating against them based on their sexual orientation. The agency initiated proceedings against Phillips, who responded that he had turned down the couple not because of their sexual orientation as such, but because “he could not in good conscience create a wedding cake that celebrates their marriage.” The agency, however, dismissed that explanation as “a distinction without a difference,” and it ruled both that Phillips’ refusal to provide the custom cake violated Colorado anti-discrimination laws and that Phillips had “no free speech right” to turn down Craig and Mullins’ request. The Colorado Civil Rights Commission upheld that ruling and told Phillips – among other things – that if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings. A Colorado court affirmed, and Phillips asked the Supreme Court to take his case, which it agreed to do in June.

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Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case this fall, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

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(UPDATED 5:45 pm: The post has been updated to include additional discussion about the significance of the justices’ decision to block the lower court’s order requiring the state to draw new maps by the fall.)

Justice Ruth Bader Ginsburg has suggested that it might be the most important case of the upcoming term. On October 3, the Supreme Court will hear oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, concluding that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. The challengers argue that the redistricting plan would allow Republicans to cement control of the state’s legislature for years to come, even if popular support for the party wanes; the lower court’s decision, they contend, merely corrected “a serious democratic malfunction that would otherwise have gone unremedied.” By contrast, the state of Wisconsin counters that if the lower court’s decision is allowed to stand, it will open the door to “unprecedented intervention in the American political process.”

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In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained “only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the “third-party doctrine” – the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

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Founded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an active and leading partner in the socio-economic development” of the Middle East – a description borne out by its work with the U.S. Agency for International Development, Oxfam, Save the Children and Catholic Relief Services. The Israeli government uses the bank as a conduit to transfer taxes that it collects for the Palestinian Authority, and the United States government has characterized the bank as a “constructive partner” in its efforts to combat money laundering and the financing of terrorism. But on October 11, the Supreme Court will hear oral argument in a case brought by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers – known as “martyrdom” payments. The question before the justices isn’t whether the victims’ allegations are true, but instead whether the bank can be sued in U.S. courts at all.

The victims have brought their lawsuits in U.S. courts under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Judge Henry Friendly once described the ATS, which was enacted as part of the Judiciary Act of 1789, as a “kind of a legal Lohengrin,” after the mythical German knight who arrives in a boat pulled by swans, because “no one seems to know whence it came.”

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In December 2015, the presidential campaign of then-candidate Donald Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.” Trump’s statement continued: “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Fifteen months later, on March 6, 2017, citing national security concerns, President Trump signed an executive order that ordered a freeze on new visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States. Two federal appeals courts blocked the Trump administration from implementing the ban, but on June 26 the Supreme Court stepped in. The justices not only agreed to review the lower courts’ rulings in October, when they return from their summer break, but they also allowed the federal government to put at least part of the ban into effect until they can rule on the federal government’s appeals.

Trump’s March 6 order was not the administration’s first effort to restrict travel to the United States by visitors from predominantly Muslim countries. On January 27, Trump signed an order that barred citizens from seven such countries – Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen – from entering the country and suspended the refugee program. That order led to confusion around the world, with some travelers stranded in airports after they were denied entry to the United States and others prevented from boarding planes overseas. The order also prompted legal challenges, and on February 3 a federal district judge in Seattle temporarily blocked the government from enforcing the order. Six days later, a federal appeals court left that ruling in place.

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