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Not Just A Fashion Statement

“This is going to sound like a joke” Justice Alito said, “but, you know, it’s not.”

Justice AlitoThe not-joke was addressed to the lawyer for Abercrombie & Fitch who was defending the preppie fashion retailer’s decision not to hire an otherwise qualified teenager because she wore a hijab to her interview. Abercrombie says that her head covering was not in line with the company’s “classic East Coast collegiate style”. The EEOC sued the company on behalf of the teenager, Samantha Elauf, now 24, for not accommodating her religion.

Abercrombie’s defense: It couldn’t question her about her religion when she applied for a job, and she never informed them about her Muslim faith.

Which brings us back to Alito’s set-up: A Sikh wearing a turban, an Hasid wearing a shtreimel, a Muslim wearing a hijab, and a Catholic nun in habit go to the employment office and say, “we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement”.

SCOTUSblog’s Amy Howe reports on the argument here.

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Who Gets A Felon’s Guns ?

It was bitterly cold outside the Supreme Court this morning which may explain why there were fewer spectators than usual for today’s arguments.

 

These sketches are of the first argument, Henderson v. U.S., concerning a felon’s attempt to transfer ownership of a gun collection that as a result of his conviction he was no longer allowed to possess. Tony Henderson, who pleaded guilty to marijuana distribution, asked that the firearms, which had no part of his crime, be sold to a friend or transferred to his wife. The government refused, of course, pointing out that such a close connection to the recipient amounted to “constructive possession“.

 

Henderson’s lawyer, UVa law professor Daniel Ortiz, began his argument stating that his client was willing to have the guns sold by a federally dealer, though that was not his preference. That seemed fairly reasonable and straight forward to me – hey, even a non-lawyer like me might be able to follow this argument. But then they pulled out the scalpels and started dissecting the meaning of possession, forfeiture, due process, dominion and takings. “Well, it’s a kind of complicated transaction . . . , Your Honor”, responded Ortiz to a question from Justice Kagan.

 

For its part, the government was okay with letting a dealer sell the guns. But when it came to who picks the dealer the lawyer for the government faced some tough questions, especially from Scalia.

Posted in Arguments, Supreme Court, Uncategorized Tagged with: , , ,

The Plenary Power Doctrine

Back on the bench after their winter break the first case argued before the Justices was on the subject of consular nonreviewability.

 

There’s a long history of leaving the power to regulate immigration to the legislative and executive branches. The courts have generally declined to review how the State Department decides who comes into the country. But the door to review may have been opened a bit by a 1972 Supreme Court opinion, Kleindienst v. Mandel, where, while upholding the Attorney General’s right to refuse entry to a Belgian Marxist, the Court said the “executive exercises the power . . on the basis of a facially legitimate and bona fide reason”.

 

Today’s case, Kerry v. Fauzia Din, involves a U.S. citizen who sought an immigration visa for her Afghani husband. The embassy rejected the visa application citing “security and related grounds”, i.e. “terrorist activity”. No further details for the rejection or review of the decision were forthcoming, so Din filed suit in District Court. The lower court dismissed but the Ninth Circuit reversed and found that the government owed her “a facially legitimate reason”.

 

And no, Justice Sotomayor did not break her arm over winter break. The black cast she is sporting is from a surgical procedure and due to come off later this week. It did not slow her down as she jumped into this morning’s argument with the first question.

Posted in Arguments, Supreme Court Tagged with: ,

Scalia A Little Late For Conciliation Argument

 

“Justice Scalia has the opinions in two cases,” the Chief Justice announced as Scalia’s chair sat empty, “he’s asked that I announce them.”

It’s not unusual for the a senior justice to announce the opinion of an absent justice. There are often one or more empty chairs on opinion days when no arguments are heard. But there were two cases to be argued today and unless a justice has recused themselves you can expect that they’ll be on the bench.

Scalia did eventually appear from the maroon curtains behind the bench just as the first argument was getting under way, a sex discrimination case that was really about the EEOC’s failure to use “conciliation” in enforcing Title VII. It turns out the justice was merely delayed in traffic.

You can read Mark Walsh’s account of Scalia’s tardy arrival here on SCOTUSblog.

Here are a couple sketches fro the argument in Mach Mining v. EEOC.

 

 

Also spotted in the courtroom today, and also not unusual, was Cecilia Marshall, wife of the late Justice Thurgood Marshall. She is a frequent visitor to the Court.

 

 

 

Posted in Arguments, Opinions, Supreme Court Tagged with: , , ,

Sign, Sign, Everywhere A Sign

The Supreme Court yesterday heard arguments about a small town’s attempt to regulate temporary signs directing the way to religious services. I’ll simply post my sketches and, if you want to read about it, I direct you to Lyle’s analysis on SCOTUSblog.

 

 

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Two Opinions and Multi District Litigation

Here are some sketches from Tuesday at the Supreme Court.

 

The Court heard arguments in Gelboim v. Bank of America Corp., a case from the Second Circuit which turned down an appeal of a case in a Multi District Litigation because the other consolidated cases were still pending, at least that’s what I think it may be about. It’s complicated.

Opinions in two cases were also announced. Warger v. Shauers, about the admissibility of one juror’s testimony about another juror’s statements (above), and Integrity Staffing Solutions v. Busk, about compensation for employees who have to go through security screen after completing their shift (below).

Posted in Arguments, Opinions, Supreme Court Tagged with: , , , ,

All Aboooard . . . the Amtrak Limited

The Supreme Court today heard arguments testing the regulatory authority of Amtrak, a quasi-private for-profit company created by congress in 1970 to prop up passenger rail service. The tracks are owned by the rail-freight companies but Amtrak gets priority to keep its trains on time.

The case is Department of Transportation v. Association of American Railroads. You can read Lyle Denniston’s reporting on the argument here.

Posted in Arguments, Supreme Court Tagged with: , , , ,

The Ambiguous Pregnancy Discrimination Act

United Parcel Service came to the Supreme Court this morning to argue that it is pregnancy-blind, that it treats expectant female employees the same as any other employee injured off the job.

The Pregnancy Discrimination Act 1978 says, “. . women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.” The language sounds plain and the intent of the law obvious, but when applied it seems to be ambiguous.

When Peggy Young became pregnant and her doctor ordered her to not lift heavy objects she asked her employer, UPS, to put her on light-duty. Instead UPS placed her on unpaid leave, so she sued.

Young’s lawyer, University of Michigan law professor Samuel Bagenstos, argued that UPS made accommodations for three similar groups: those injured on the job, those covered by the Americans With Disabilities Act and employees whose driving licenses were suspended or revoked.

“Well, Ms Halligan, for the democratic process to work as it should, the PDA has to be given a fair reading,” said Justice Kagan. “And what we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers.”

The lawyer for UPS, Caitlin Halligan, was questioned aggressively by Justices Ginsburg and Kagan. They asked so many questions that it was hard to get a sketch of Halligan since she was turned away when facing the two justices.

Lyle Denniston’s SCOTUSblog analysis of the argument is here.

Posted in Arguments, Supreme Court Tagged with: , , ,

The Hapless Bank Robber

While it poured outside the Supreme Court yesterday morning the Justices inside heard arguments about a statute that imposes a minimum ten year sentence on a bank robber who “forces another person to accompany him”.

Larry Whitfield and an accomplice, armed with an AK-47 and a .357, tried to rob a Gastonia, North Carolina credit union but were foiled by a metal detector that automatically locked the bulletproof lobby doors. Fleeing in a Crown Victoria they crashed into the median. Whitfield got away, while his accomplice was caught.

The would-be bank robber, who had ditched his firearm, first broke into a vacant house but when the owner showed up he threatened her with a knife and ran. Next, he entered the home of 79-year-old Mary Parnell. He forced Parnell to accompany him a few feet into a room where he called and texted a friend, telling a terrified Parnell, “Ma’am, just calm down. I’m probably more scared than you are, and I’m actually just trying to leave.”

Mary Parnell was having a heart attack and died. Whitfield got 20 years for the robbery plus five for forcing Parnell to accompany him to the other room.

The case is Whitfield v. U.S.

Read Amy Howe’s SCOTUSblog account of the argument here.

 

 

 

 

Posted in Arguments, Supreme Court Tagged with: ,

Facebook and Ginsburg’s New Jabot

After a sudden hospitalization last week, Justice Ginsburg – who I think has never missed a day of work – was back on the bench this morning to hear arguments.

Of this morning’s two cases the second, regarding a Pennsylvania man’s threatening rants on Facebook, drew the crowds. During the first I could see a few new members of the bar struggling to stay awake, although the Justices seemed to enjoy it.

The case, Elonis v. United States, was brought by Anthony Elonis who was convicted and served more than three years in prison for threatening his estranged wife with Facebook posts such as this one, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Restrictions on First Amendment speech are permitted if that speech constitutes a “true threat”, but that can mean many things. Elonis’ lawyer, John P. Elwood’s position that his client had no intent to scare his wife, much less follow through on his threats, that he was only venting in a rap style caused Justice Ginsburg to ask, “How does one prove what’s in somebody’s mind?”

When it came the government’s turn at the lectern, Chief Justice Roberts asked, “So how do you start out if you want to be a rap artist? Your first communication you can’t say, I’m an artist, right?”

“I think you have a perfect freedom to engage in rap artistry,” replied Deputy Solicitor Dreeben. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet?”

Posted in Arguments, Supreme Court Tagged with: , , ,
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