November in the Supreme Court: What’s happening? Why should I care?

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AMARILLO, Texas (KAMR/KCIT) – The US Supreme Court (SCOTUS) began a historic term at the beginning of October, after 18 months of strictly virtual meetings. After weeks of hearing arguments regarding issues such as abortion, guns, and religion, high-stakes cases have continued to approach the bench in a steady stream that will impact every community in the nation.

Although the SCOTUS building has been closed to the public due to considerations for COVID-19, oral arguments can be heard live here.

What’s happening, and when? How could these cases impact life on the High Plains?

Here is a week-by-week look for October in the Supreme Court:

Nov. 1 – Nov. 3

  • Monday, Nov. 1
    • United States v. Texas
      • The issue: One of the major cases that the Supreme Court is set to hear about abortion in the US this session, this case does not center around whether or not a person has a right to the procedure itself. Instead, the court must decide whether the US can sue the state of Texas in federal court in order to stop Texas Senate Bill 8 from being enforced. SB 8 is the most restrictive abortion law in the country, and went into effect in September by setting up a bounty system in order to allow lawsuits by anyone, against anyone who allegedly assists a person with getting an abortion after a fetus has a detectable heartbeat.
    • Whole Woman’s Health v. Jackson
      • The issue: The court will decide whether or not a state can prevent the federal court from reviewing – and therefore possibly stopping – a law that bans people from exercising a constitutional right by giving private citizens the authority to enforce the law with lawsuits.
      • In a clear conflict with the court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, which established a constitutional right to an abortion up until a fetus is viable (usually around the 24th week of pregnancy), SB 8 bans doctors from performing abortions around the start of the sixth week of pregnancy, which effectively stopped the majority of legal abortions in the state. However, the biggest part of the argument at hand was how the law itself was structured – SB 8 gave private individuals instead of state officials the power to enforce the law, in order to make it harder for the law’s constitutionality to be challenged in court.
    • How’d it go? The oral arguments around whether or not the US could sue Texas about the law involved two cases, three hours of arguments, four sets of lawyers, 50 mentions of abortion, and one pair of red socks. Both of the cases were presented to the justices at the same time, with quite a bit of the discussion centering around whether abortion providers or the US federal goverment had more of a legal avenue to challenge SB 8.
    • After the three hours of arguments, the justices appeared likely to allow the case brought by Texas abortion providers to go forward, even if they did not seem to agree on the rationale of the lawsuit. The justices seemed more skeptical about the lawsuit filed by President Biden’s administration, and they did not clarify whether the law will stay in effect in Texas.
      • Justice Elena Kagan observed that the “entire point” of SB 8 was to “find the chink in the armor” of Ex parte Young, a 1908 SCOTUS case that allowed lawsuits in federal courts against staet officials in order to keep them from enforcing unconstitutional laws, but banned injunctions against state courts. She suggested that the court should not simply resign itself to the idea that “we’ve never seen this before, so we can’t do anything about it.”
      • Texas Solicitor General Judd Stone said that providers can challenge SB 8 in state courts if they are sued under the law, and “eventually” seek review of those decisions through the Supreme Court. However, that would involve the providers and other defendents sued under SB 8 very likely losing their initial cases – which would mean that along with costs and attorney’s fees, they would lost at least $10,000.
      • Multiple justices were concerned that because the penalties people will suffer from lawsuits brought under SB 8 are significant and broadly applicable, no one would be willing to get sued, lose, and then challenge that loss through a federal court review. Evidence from the past two months suggests SB 8 is having that desired ‘chilling’ effect – leading to clinics turning away many patients seeking abortions, and the number of abortions performed legally in Texas plummetting.
        • Justice Brett Kavanaugh also noted that because the law has a retroactivity provision, abortions performed during a time in which the law was blocked but then went back into effect could also be subject to lawsuits. Kavanaugh observed that that provision has an extra ‘chilling’ effect, because “even the prospect of future changes” and “millions and millions of dollars” of potential liability would lead most clinics to not offer abortions even when legal.
    • Conservative justices also openly worried about the idea of SB 8’s enforcement scheme being copied in order to prevent other constituional rights from being exercised. For instance, the argument that gun rights, free speech rights, or religious rights could be stifled and no one would be able to defend those rights in court because of similar chilling effects.
    • Justices Sonia Sotomayor and Stephen Breyer suggested that Texas Attorney General Ken Paxton could be sued by abortion providers about the law. If he were properly sued, an injunction against him would also extend to any plaintiffs who filed lawsuits as “private attorneys general.” Kavanaugh also wondered whether state judges, who would entertain private civil suits and therefore be the ones enforcing the law, could be sued as well.
    • An official ruling from the court in either case has yet to be released.
  • Tuesday, Nov. 2
    • Badgerow v. Walters
      • The issue: The court will decide whether or not federal courts have subject-matter juristiction toward an arbitration award under the Federal Arbitration Act (FAA) when the only basis for their jurisdiction is that the underlying disput involves a federal question.
        • The base problem seems to be that the FAA creates some major rules about arbitration, but it isn’t clear about how much the federal courts are allowed to enforce those rules.
          • Arbitration is a way to settle a dispute outside of the courts. Two parties can settle an issue using an impartial third party, often by making a decision that everyone can agree to. For it to be considered arbitration, an impartial third party has to be involved in the process.
        • Denise Badgerow is a former employee of Greg Walters’ business, and there is a dispute between them regarding how she was fired. A federal court ordered Badgerow to settle outside of court, or arbitrate; since she lost the arbitration several years ago, she has been trying to get the court to vacate (appeal and nullify) the decision that was against her. Because Walters already has a federal-court order that confirmed the outcome of the arbitration, Badgerow is asking the federal courts to say they cannot issue those orders, so that she can pursue her goal in state court.
      • Why is this relevant to the High Plains?
        • Any issue that a court orders the involved parties to settle through arbitration could be impacted by this ruling. For example, a current issue that’s concerning dozens of employees in the High Plains; workers worried about losing their jobs because of vaccine mandates. If Tyson or Bell Helicopter fires a person on the basis of them not being vaccinated for COVID-19, that situation is taken to a local federal court and a judge orders that the matter needs to be settled through arbitration, and the person who was fired feels unfairly treated by how that arbitration settlement pans out – what is their next step? This case could decide if that person would be able to appeal the settlement and get that agreement erased.
    • Houston Community College System v. Wilson
      • The issue: Does the First Amendment restrict the authority of an elected body to issue a censure resolution that responds to a speech made by one of its members?
        • The Houston Community College System board members, including David Wilson, have been embroiled in a fight with accusations of greed and corruption that has led to one board member’s conviction on federal bribery charges. Private investigators are involved, as well as two separate lawsuits filed by Wilson against the board and his fellow trustees. Still, that wasn’t the biggest point of discussion during the oral argument. Instead, the justices were asked whether or not Wilson was protected from censure (being condemned in writing) by the board because of his First Amendment rights after criticism of what he Wilson described as a “pay toplay” culture on the board.
        • Houston Community College System’s lawyer Richard Morris argued that while Wilson has the consitutional right to criticize the board, the board is also allowed to respond to what he says.
        • While a majority of the justices seemed to agree with Morris, Justices Samuel Alito and Sonia Sotomayor raised concerns about the broader implication. Sotomayor said pressed about the limits of the elected body’s power to sanction members – does a group of elected officials have the power to expel or imprison members? Chief Justice John Roberts wondered whether, for example, the US Patent Trial and Appeal Board – whose members are appointed rather than elected – could censure a member who decided not to stand for the national anthem at a baseball game. Further, Justice Clarence Thomas oserved that with that line of thought, whether it would be possible for a legislature could sanction a private citizen.
        • Justice Amy Coney Barrett was among those skeptical of the kind of speech that can be censured. For instance, she asked, could a legislator use racial slurs on the floor of the legislature and be censured for that, but then use those same slurs later in a press conference without any punishment?
      • Why is this relevant to the High Plains?
  • Wednesday, Nov. 3
    • New York State Rifle & Pistol Association v. Bruen
      • The issue: If the state of New York denies a person’s application for a concealed-carry license for self-defense, does that violate the Second Amendment?
        • It seemed like New York’s 108-year-old law regarding handgun licenses could see significant changes, but the justices may keep their decision narrow – focusing on just the New York law and others like it – and save the broader questions about the right to carry a gun outside the home for a different time.
      • The law in New York currently requires a person who wants a license to carry a concealed handgun to show “proper cause” for the license. Courts in New York have defined this to require applicants to show a special need other than only want to protect themselves or their property.
      • Multiple liberal justices argued that the case should be given to a lower court so that more facts can be developed regarding how many permits have been granted by the state – coming off lawyer Paul Clement portraying the law as one that prevents most people from getting a license to carry a gun for self defense in the state.
      • Why is this relevant to the High Plains?
        • While it seems possible that the court will keep its ruling to the New York law specifically and others like it, there was prolongued discussion during the oral argument on this case regarding the Second Amendment as a base. Does the Second Amendment grant a person the right to have a gun outside of their home automatically, and then the government is allowed to regulate and take away from that broad allowence – or does it work the other way around, in that people begin without being able to have a gun outside their home but then the majority of people should be able to easily access a license to do so?
        • As of Sept. 2021, House Bill 1927 eliminated the requirement for a person in Texas to have a license to carry a handgun. This means that most people over 21 in the state are llowed to carry a handgun in a holster, either openly or concealed, without a license. However, if the court’s decision (expected in the summer) addresses how the Second Amendment should be literally interpreted, Texas’ laws such as HB 1927 could face challenges on the basis of constitutionality.

Nov. 8 – Nov. 10

  • Monday, Nov. 8
    • Unicolors Inc. v. H&M Hennes & Mauritz, L.P.
      • The issue: Did the US 9th Circuit Court of Appeals make a mistake? The court must decide whether a misstatement in an application for registering a copyright is serious enough to require a court hearing an infringement lawsuit in order to refer the matter to the Register of Copyrights.
      • Why is this relevant to the High Plains?
        • As of 2021, the Amarillo area counted over 17,000 business firms in the local economy. The Amarillo Economic Development Corporation has touted Amarillo as an area of thriving potential for growing businesses and industries like manufacturing and distribution. However, the court’s decision on how stringent copyright laws need to be could impact who starts a business locally, who adds new products to their inventories, and what new products or designs get manufactured in the area on a base of how difficult a specific copyright would be to defend. Whether big businesses are able to seemingly take advantage of smaller independent boutiques with less legal funding to navigate the copyright system, or if smaller ‘troll’ companies that file thousands of lawsuits against big employers impacts products and manufacturing could be effected by this decision.
    • FBI v. Fazaga
      • The issue: Similar to United States v. Zubaydah from October, this case discusses state-secrets privilege and how it might apply to a request for information about CIA torture at offshore “black sites.”
        • The FBI paid Craig Monteilh, a former fitness instructor, to be a “confidential informant” to gather information about Muslims in Orange County, Calif. in 2006 and 2007. Monteilh collected names and license-plate number of people at local mosques, and made audio or video recordings of almost all of his conversations with people in the local Muslim community, and sometimes left those devices behind to capture conversations that happened after he left.
        • After Monteilh’s connection with the FBI was revealed in a fraud case a few years later, southern Californian Imam Yassir Fazaga and two other practicing Muslims, Ali Uddin Malik and Yasser AbdelRahim, sued the FBI and five agents on the argument that they and their community had been spied on without a warrant only because of their religion. However, the government argued that the plaintiffs’ claims alleging religious discrimination should be dismissed under the state-secrets privilege, because of a risk that disclosure of information in the case going forward could harm national security.
        • During the oral arguments, the justices discussed different scenarios in which the FBI succeeding in categorizing information as protected and unable to be viewed, even by some judges, could negatively impact plaintiffs seeking justice and defendants unable to use evidence that could be in their favor.
        • It seemed likely, by the end of the arguments, that the case would go back to the lower courts for extra proceedings. A decision is expected by the summer.
      • Why is this relevant to the High Plains?
  • Tuesday, Nov. 9
    • Ramirez v. Collier
      • The issue (1): Did Texas violate the free exercise clause and Religious Land Use and Institutionalized Persons Act when it said it would allow Ramirez’s pastor to enter the execution chamber, but would not allow the pastor to lay hands on him as he dies?
      • The issue (2): Did Texas violate the free exercise of religion when it said it would allow Ramirez’s pastor to enter the execution chamber, but would not allow the paster to sing, say, or whisper prayers or scripture?
        • John Ramirez was scheduled to be executed in Texas in early September, but it was postponed when Ramirez submitted an emergency application to the court regarding his constitutional right to free exercise of religion, after Texas denied a request for his Baptist pastor, Dana Moore, to put his hands on Ramirez’s body and pray out loud during the execution. Four other cases regarding spiritual advisers during executions have reached the Supreme Court, including:
          • In February 2019 the court allowed Alabama to execute a Muslim man, Domineque Ray, after the state refused to allow Ray to have an imam at his side in the execution chamber, even though the state at that time allowed a Christian chaplain in the chamber. In its brief order, the court noted that Ray had sought relief only 10 days before his scheduled execution.
          • In March 2019, the court stopped Texas from executing a Buddhist prisoner, Patrick Murphy, unless he was allowed to have a Buddhist priest at his side. In an opinion agreeing with the decision to block Murphy’s execution, Justice Brett Kavanaugh emphasized that, under the state’s policy in effect at the time, Muslim and Christian inmates were allowed to have spiritual advisers in the execution chamber with them, but inmates of other faiths – like Murphy – were not. Kavanaugh said that the solution would be to exclude all spiritual advisers from the chamber, rather than distinguishing among inmates based on their religion.
          • After Murphy’s case decision, Texas adopted a new policy that excluded all spiritual advisors from the execution chamber. That led to a Catholic inmate, Ruben Gutierrez, to go to federal court to challenge the new policy. After being sent back to lower courts and going back and forth until January 2021, Texas later revised its policy again to allow spiritual advisers in the execution chamber.
          • In February 2021, the court stopped Alabama from executing Willie Smith III unless he was allowed to have a pastor by his side in the execution chamber.
        • Ramirez’s case does not discuss whether or not a spiritual adviser can be present during an execution, but what kind of aid they are allowed to provide during the execution.
        • The case has been fast-tracked after Ramirez’s execution was stayed.
        • UPDATE: During the oral arguments on Nov. 9, the court seemed significantly split on debating the possible future ramifications and “endless stream of litigation” if Ramirez wins his case – argued by some as what could lead to other inmates constantly suing on similar spiritual grounds in order to delay execution. Others, what seemed like a majority at times, seemed more focused on the government’s responsibility to enforce executions in a humane manner and the fact that Texas, specifically, has allowed many spiritual advisors within execution chambers and to both touch inmates and pray aloud.
      • Why is this relevant to the High Plains?
        • This case discusses Texas policy regarding inmates scheduled for execution, but also discusses the Religious Land Use and Institutionalized Persons Act – this discusses what qualifies as a “substantial burden” on a person’s exercise of religion, including religious assembly or institution.
        • Because of its discrimination and exclusion guidelines, the government cannot pose a land use regulation that discriminates against religious assembly, or treats a religious assembly or institution on less-than-equal terms with a nonreligious assembly or institution.
          • This could end up a part of discussions regarding the recently passed amendment to the Texas State Constitution – Proposition 3  bans the state or any political subdivision from making a law, rule, order, or proclamation limiting religious services or organizations. This was among the amendments proposed in response to previous COVID-19 visitation and gathering restrictions. However, when this amendment and the land use act interact, does this mean that no government is allowed to limit other gatherings or organizations as well?
          • If so, the court’s decision in this case could spread out to impact how communities deal with COVID-19 restrictions, religious expression in school districts and public areas, how guidelines regarding subjects like vaccination or other exemptions based on firmly held belief are handled by the courts, and numerous other topics regarding the First Amendment and government regulation that impact day-to-day life.
    • United States v. Vaello-Madero
      • The issue: Did Congress violate the equal-protection part of the Fifth Amendment’s due process clause when it established Supplemental Security Income in the 50 states and the District of Colombia, and the Northern Mariana Islands, but did not give that to Puerto Rico?
        • Jose Luis Vaello-Madero is an American citizen who was born in Puerto Rico. He became seriously ill and unable to work in 2012 while living in New York, and began receiving Supplemental Security Income (SSI). However, when he moved back to Puerto Rico to be closer to his family, Vaello-Madero lost his SSI benefits because Puerto Rico residents are excluded from the program.
        • Not only did Vaello-Madero lose his SSI benefits, but the United States federal government sued him for $28,000 after he received benefits for a time after his move.
        • While both sides agree that Vaello-Madero should not have lost his benefits, Vaello-Madero is looking for a judicial solution while the Biden administration argues that Congress, not the court, should fix the problem by extending SSI benefits to all Americans without considering where they live.
        • UPDATE: Even though legislation from Congress would likely not help Vaello-Madero’s case unless it specifically included that previous exclusions would also be eliminated, the court seemed to lean slightly more toward the idea that the Legislative branch of government and not the Judicial branch is who has the power to change this sort of situation.
          • This came despite arguments from justices such as Sotomayor, who brought up the idea that the exclusion of US territories has historically been based in rulings that used racist assumptions to justify denying people such as Puerto Rican residents constitutional rights and protections – even though they are US citizens.
      • Why is this relevant to the High Plains?
        • Demographic information for Texas showed that between 2010 and 2020, the population grew by over 15.5% in total. Between a significant population change and the onset of the COVID-19 pandemic led to a far greater number of people needing the help of federal safety nets including SSI benefits – be it from long-term injuries, needing unemployment benefits, difficulties with long-term effects from COVID-19 infection, and a multitude of other life situations that became more critical with the stress on healthcare infrastructure and the economy. How the court chooses to handle this case could impact how other people from a range of demographics are treated in regards to getting help from federal safety nets.
  • Wednesday, Nov. 10

Nov. 29 – Nov. 30

  • Monday, Nov. 29
  • Tuesday, Nov. 30
    • American Hospital Association v. Becerra
    • Cummings v. Premier Rehab Keller, P.L.L.C.
      • The issue: Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.
      • Why is this relevant to the High Plains?
        • The burden of proof for people who work to claim compensation for discrimination often falls on the plaintiff. A person often needs to provide definitive proof that someone like an employer intentionally discriminated against them for a reason that violates government protections. The court’s decision in this case could change the standard for what looks like evidence or not, if a person brings a lawsuit to court claiming that another person or group was discriminatory. In the High Plains, this could impact how discrimination is discussed in workplaces, education, or healthcare facilities, and the guidelines governments at a local and higher level might put in place to prevent it.

This story is ongoing. Check with MyHighPlains.com for updates.

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