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Last Week’s Puerto Rico Argument

I don’t understand much of this case that was heard last Tuesday by just seven justices, Alito having recused. What seemed most notable, at least to me, was that Justice Kennedy didn’t ask a single question (neither did Thomas, but that’s expected). Justice Sotomayor, of course, took an active role.

Here’s a link to Lyle’s piece on the argument. And below are my few sketches.

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.

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).

. . . And Three More Thursday

Opinions in some of the less prominent cases continue to trickle out of the Supreme Court as each day a few more cameras set up outside the court in anticipation of the big ones.

Of the three opinions announced from the bench today the most noteworthy was Lane v. Franks, concerning the First Amendment rights of a community college employee who was fired after testifying at the corruption trial of a state legislator who had been on the community college’s payroll for a no-show position. Justice Sotomayor said public employees should not have to choose between “the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

There are about ten cases still undecided, most of them biggies.