Menachem Zivotofsky was born in 2002, the same year congress passed the Foreign Relations Authorization Act with a provision that U.S. passports listing the place of birth as Jerusalem should, upon request, also list Israel. Zivotofsky’s parents did just that, and the case had been kicking up and down the courthouse steps for years. Yesterday it concluded with a big win for the President.
It appears that Justice Kennedy’s opinion enshrines a presidential power nowhere mentioned, though implied, in the Constitution, namely recognition of foreign powers. “Recognition is a topic on which the Nation must ‘speak . . . with one voice,’” writes Kennedy. “That voice must be the President’s.”
Justice Scalia, along with Justice Alito and the Chief Justice, dissented. Justice Thomas also dissented in part, making the decision either 6-3, 5-4 0r even 5 ½-3 ½ depending on who you listen to.
The case is Zivotofsky v. Kerry, and you can read about yesterday’s decision here and here.
Does “one person, one vote”, a rallying cry of the Civil Rights Movement, and one that the Supreme Court enshrined in a 1964 decision in Reynolds v. Sims, mean voting districts should have the same number of people, or the same number of eligible voters? That’s the new case, Evenwel v. Abbott, that the Court agreed to hear next term.
And also an excuse for me to exercise my inner cartoonist.
Good vibes outside the Supreme Court this morning as the justices were about to hear over two hours of argument on gay marriage. The mood sobered up though as the first argument on the question of whether the constitution requires states to recognize same sex marriages got under way. The justices are evenly split with Kennedy the swing vote as usual, and Kennedy seemed troubled.
As soon as the first lawyer had finished and the Solicitor General was headed to the lectern a man with a good tan and white muttonchops stood and began to yell loudly. “The Bible teaches that you will burn in hell for eternity . . . homosexuality is an abomination,” he shouts as officers drag him from the courtroom.
A lot has and will be written about the argument, and on days like this I find it very hard to actually listen to the arguments – it’s a right-brain, left-brain thing, I guess – so I’ll just post my sketches and leave the comments to others.
“This is going to sound like a joke” Justice Alito said, “but, you know, it’s not.”
The 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.
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.
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.
“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.
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.
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).
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.