Recap of Annual Meeting Panel Presentation “Supreme Court Roundup”

Bladensburg, MD (Dominic Draye): The American Humanist Association challenged the continued maintenance of 40’ tall, concrete cross erected in 1925 as a WW1 Memorial. The7–2 decision relied on the “added secular significance” of historical memorials in reversing the 4th Circuit ruling that maintaining the cross violated the Establishment Clause. Justice Alito declared that to order removal of the monument would be “offensive to Christianity” while Gorsuch’ opinion declares that a bystander offended by the appearance of the cross would not have standing as such. The decision raises the question whether the Lemon test of constitutes establishment of religion still applies in all cases.

Maryland and N. Carolina gerrymander cases (Misha Tseytlin): The decision illustrates the Courts’ reluctance to rule that politics is an impermissible factor in legislative redistricting. Justice Kagan’s opinion discusses possible tests to use in future (state court) challenges.

Citizenship census question (Caroline S. Van Zile): Early in the case, the USDOJ had asked the Commerce Department to supplement the record of the administrative rulemaking. That material revealed that Commerce had “shopped” the notion of adding the question to various other Cabinet agencies, seeking support from those agencies—contrary to the Commerce Department’s original stated reason for adding the question. Future census rule makers may be aided by this decision so long as their decision process is transparent. Justice Thomas warned against invalidating an agency decision based on alleged pretext.

Endangered Species Act: (Draye): This suit challenged an EPA listing of “potential critical habitat” for a species of frog on private land in Mississippi near New Orleans. The “potential” would require that the tree canopy on that parcel be replaced by trees more conducive to the frogs’ ability to thrive. Justice Roberts opined that designations of critical habitat first require that the property constitute habitat, and that was not the case here. Judicial review of administrative agency decisions appears broadened by this decision.

Knick v Williamson County (Tseytlin): Long precedent has required Fifth Amendment challenges to alleged “regulatory takings” of private property to be brought first in state court with the results subject to dismissal, as res judicata, if then brought again in federal court. The Takings Clause had been, until now, the one civil rights Amendments not entitled to original jurisdiction in federal courts. The decision here reverses that precedent and also holds that compensation is due at the time of the taking. Justice Kagan’s dissent asserts that the better rule is that compensation is not due until the claimant wins the litigation.

California Franchise Tax Board: In another reversal of long standing precedent (see Nevada v. Hall), this decision restores the principle that the states retain their sovereign immunity from private suits brought in courts of other states. Hall had established that nothing “implicit” in the Constitution required such immunity but the majority here concluded that notions of comity generally understood at the time of drafting intended otherwise. The dissent notes that the principle is not in common law, that the Constitution did not alter the common law on this subject, and that this 5-4 decision unnecessarily overturns precedent.

Virginia Uranium Mining (Draye): Does federal preemption of state laws purporting to ban mining of minerals, when read with Atomic Energy Commission rules expressly leaving uranium mining regulations of same to the states, requires invalidating an outright ban on uranium mining under a VA law? Virginia’s stated intent of protecting the public from radiation hazards. Trying to find congressional intent behind object-based preemption is a hopeless cause. Justice Roberts did question VA’s objective.

Tennessee liquor law (Tseytlin): This was a challenge to the state’s two-year residency requirement for permission to own a liquor store. Section 2 of the Twenty-First Amendment repealing Prohibition expressly allows states to declare their own prohibition. Relying instead on the “dormant Commerce Clause” the decision finds that this state law unlawfully burdens interstate commerce. Justice Gorsuch’ dissent would limit any reliance on the dormant commerce clause.

Age Discrimination in Employment (Van Zile): The Court holds that the ADEA applies to all political subdivisions (here, a local fire department, defending a mandatory retirement age) based on a literal reading of the statute’s grammar and usage. The word “also” in subsection 2 of the statute controls over other provisions that seemed to limit the Act’s application to only those entities having more employees that was the case here.

Civil Forfeiture (Draye): The Court invalidated a civil forfeiture of an expensive car (a Land Rover) based on the Eighth Amendment prohibition against excessive fines. Indiana had argued that no precedent existed for applying that Constitutional provision against the states. The dissent argues that the Privileges and Immunities clause offered better grounds for the decision than did the Eighth Amendment.

ALSO RECORDED AT THE ANNUAL MEETING:

Knick Overrules Williamson County: What Does It Mean for Eminent Domain? (On-Demand CLE)

Register at https://www.americanbar.org/events-cle/ecd/ondemand/379110323