The justices on Monday issued their first regularly scheduled order list since late January. Perhaps the most noteworthy part of the orders was the justices’ denial of former President Donald Trump’s plea to block a subpoena for his financial records, but the order list was significant in other respects as well: The justices added three more hours of argument to their docket for the fall, and they declined to take up lingering disputes arising out of the 2020 election.
New cases granted
Monday’s order list came at the start of an argument session that lost two of its highest-profile cases, involving funding for the former president’s border wall and the Trump administration’s “remain in Mexico” policy for immigrants seeking asylum in the United States, due to changes in policy announced by President Joe Biden. Two of the three issues that the court agreed on Monday to review could meet similar fates before they are argued or decided next term.
The justices granted a trio of cases – American Medical Association v. Cochran, Cochran v. Mayor and City Council of Baltimore and Oregon v. Cochran – challenging regulations issued by the Trump administration under Title X of the Public Health Services Act, a federal grant program to support family planning and reproductive health services for poor women. One provision of Title X, Section 1008, prohibits Title X funds from being “used in programs where abortion is a method of family planning.” In 2019, the Department of Health and Human Services issued new regulations under Title X that bar clinics that receive federal funding through the program from providing referrals for abortion. The U.S. Court of Appeals for the 9th Circuit upheld the rule against two challenges, while the U.S. Court of Appeals for the 4th Circuit struck it down. The Biden administration has ordered a review of the 2019 rules, but according to Politico it has not yet indicated what changes it will make or when.
The justices also granted the federal government’s request to weigh in on the “public charge” rule, which governs the admission of immigrants into the United States. Federal immigration law prohibits noncitizens from receiving a green card if the government believes that they are likely to become reliant on government assistance – that is, a “public charge.” In 2019, the Trump administration defined “public charge” more broadly than in the past, to refer to noncitizens who receive various government benefits, such as Medicaid, food stamps or housing assistance, for more than 12 months over a three-year period. After two different federal courts of appeals ruled for the challengers, the federal government came to the Supreme Court, asking the justices to take up the case. The justices agreed to review a decision by the U.S. Court of Appeals for the 2nd Circuit, perhaps because then-Judge Amy Coney Barrett had participated in a ruling by the U.S. Court of Appeals for the 7th Circuit, which would have required her to recuse herself. The Biden administration ordered a review of the public charge rule in early February.
In Wooden v. United States, the Supreme Court will weigh in once again on the interpretation of the Armed Career Criminal Act, a federal law that requires enhanced sentences for repeat offenders who commit crimes with guns. The case arose in 1997, when William Wooden broke into a mini-storage facility in Georgia and stole from 10 different units, leading to his guilty pleas on 10 counts of burglary. The question before the Supreme Court is whether Wooden committed his crimes on different occasions, which under the ACCA would subject him to a mandatory enhancement of 15 years for his conviction for possession of a gun by someone previously convicted of a felony. Wooden filed his petition for review on his own but is now represented by lawyer Allon Kedem of Arnold & Porter, who argued in his reply brief that “offenses are not committed on different ‘occasions’ just because they occur sequentially” – and that Wooden should have faced a sentence of only 21 to 26 months. “One night in a storage facility does not an ‘Armed Career Criminal’ make,” Kedem concluded.
Election-related petitions denied
The justices declined to review a state court ruling that extended the deadline for mail-in ballots in Pennsylvania during the November 2020 election. A ruling on the merits of the case would not have affected the outcome of the voting in Pennsylvania, but it could have had a significant effect on future elections.
The two cases, Republican Party of Pennsylvania v. Degraffenreid and Corman v. Pennsylvania Democratic Party, arose from a challenge by the Pennsylvania Democratic Party to the state’s system for absentee ballots in light of the pandemic. Relying on a provision in the state’s constitution, the Pennsylvania Supreme Court extended the deadline for absentee ballots until Nov. 6, three days after Election Day. Any ballots that were clearly postmarked after Election Day would not be counted, the state court ruled, while ballots that were postmarked by Election Day (as well as those without a postmark or with a postmark that was not clear) would be counted as long as they were received by Nov. 6.
Republican legislators and the Pennsylvania Republican Party went to the Supreme Court in late September, asking the justices to put the state court’s ruling on hold. They contended that the part of the ruling allowing ballots to be counted when the postmarks were not clear would lead to the counting of ballots sent after Election Day, in violation of federal election law and the U.S. Constitution. The Supreme Court, in an order issued before Barrett’s confirmation, deadlocked on the request, leaving the state supreme court’s decision in place. Four justices – Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – indicated that they would have granted the Republicans’ application.
The Pennsylvania Republicans returned to the Supreme Court a few days later, urging the justices to take up the case and rule on the merits of the dispute before Election Day. The court turned down the plea to fast-track the petition for review, leaving the extended deadline in place for Election Day 2020. Alito wrote a statement regarding the denial of the motion to expedite, explaining that it “would be highly desirable to issue a ruling on the constitutionality” of the state court’s ruling before Election Day. “That question has national importance,” Alito said, “and there is a strong likelihood” that the Pennsylvania Supreme Court’s decision violates the U.S. Constitution. But, Alito continued, “there is simply not enough time at this late date to decide the question before the election.” Moreover, Alito added, the state had directed county election boards to segregate ballots received after Election Day but before the extended deadline, which would provide the Pennsylvania Republicans with a remedy – omitting the ballots from the final count – if the Supreme Court were to overturn the state court’s ruling before the results were certified.
In a brief order on Monday, the justices denied both petitions. Thomas dissented from that decision in an 11-page opinion in which he acknowledged that the extension of the deadline “seems to have affected too few ballots to change the outcome of any federal election.” However, Thomas continued, “that may not be the case in the future.” Because, in his view, the cases were “an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle,” he deemed the court’s “refusal to do so” “inexplicable.”
Alito also dissented, in an opinion joined by Gorsuch. Like Thomas, he emphasized that a ruling in the Pennsylvania cases would not affect the outcome of the 2020 election but would “provide invaluable guidance for future elections.” Alito also pushed back against the suggestion that review was not warranted because the cases are no longer a live controversy, while similar disputes are not likely to arise in the future. He noted (among other things) that the primary election for Pennsylvania’s congressional candidates would take place in 15 months and observed that although we “may hope that by next spring the pandemic will no longer affect daily life,” that “is uncertain.”
The justices also denied, without any publicly noted dissent, several other petitions for review arising out of the 2020 elections, including one by Rep. Mike Kelly (R-Pa.), who had sought to block the certification of Pennsylvania’s election results, and by former President Donald Trump, also challenging the results in Pennsylvania. Both Kelly’s and Trump’s petitions were denied without the justices calling for a response from state and local government officials, who had waived their right to oppose the petitions.
Thomas also dissented from the court’s denial of review in Bridge Aina Le’a v. Hawaii Land Use Commission, a challenge to the constitutionality of the commission’s designation of 1,000 acres of land on the island of Hawaii for agricultural use. As John Elwood explained in Relist Watch, the plaintiff is a developer who – until the commission’s designation – planned to build hundreds of homes on the site. A federal district court in Hawaii agreed with the developer that the commission’s actions amounted to an unconstitutional “taking” of the land, but the U.S. Court of Appeals for the 9th Circuit reversed. The developer came to the Supreme Court, asking the justices to weigh in on the standards for what constitutes a “regulatory taking” – that is, government action that does not physically take private property from its owner, but puts so many limits on the owner’s use of the property that it effectively takes away the property.
In a two-page opinion, Thomas argued that the Supreme Court’s “current regulatory takings jurisprudence leaves much to be desired.” Thomas criticized the standard established by the court as “standardless” in most cases, leading to “starkly different outcomes” on the same facts. “A know-it-when-you-see-it test is no good,” Thomas contended, “if one court sees it and another does not.” Instead, Thomas posited, the court should make clear either that “there is no such thing as a regulatory taking” or “when one occurs.”
The court also declined to take up three cases that involved property disputes between religious denominations and breakaway church factions: All Saints’ Episcopal Church (Fort Worth) v. The Episcopal Diocese of Fort Worth, The Episcopal Church v. The Episcopal Diocese of Fort Worth and Schulz v. Presbytery of Seattle. There were no noted dissents from the court’s decision not to intervene.
The justices took no action on several high-profile petitions that have been pending for weeks or months – most notably Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that bans most abortions after 15 weeks of pregnancy.
The justices will meet again for their next conference on Friday, Feb. 26. We expect orders from that conference on Monday, March 1.
This article was originally published at Howe on the Court.