Supreme Court Update: Order List and Stay Orders

October 20, 2014 Supreme Court Update

Greetings, Court fans!

The term has barely started and already we've got some catching up to do. Who knew the Court would take so many consequential actions, with so few words to explain them, so early in the term? In this update, we'll cover the Court's recent foray into voting rights and abortion rights, before turning to yesterday's cert grants.

The big news over the weekend was the Court's denial of an emergency application to vacate the stay entered by the Fifth Circuit in Veasey v. Perry (No. 14A393), the Texas Voter ID case. On October 9, the District Court for the Southern District of Texas struck down Texas's voter ID law after a nine-day trial, holding that it violated the Fourteenth Amendment, the Twenty-Fourth Amendment (because the fees required to get an acceptable ID amount to a poll tax), and the Voting Rights Act of 1965. A week later, the Fifth Circuit stayed the application of the District Court's judgment, citing the Supreme Court's per curiam decision in Purcell v. Gonzalez (2006), which cautioned courts not to implement court orders affecting elections so close in time to the elections that they might cause confusion among voters and poll workers. On Saturday morning, just after 5 a.m., the Supreme Court denied the plaintiffs' emergency application to vacate the Fifth Circuit's stay, apparently agreeing that the risk of confusion so close to the November election outweighed the concerns articulated by the District Court in striking down Texas's law. This means Texas can proceed to enforce the law in November, notwithstanding that it has been held unconstitutional in a final judgment after trial. Justice Ginsburg wrote an opinion dissenting from the Court's order, arguing that the risk of confusion was minimal and that, in any event, Texas had ample time to prepare for the possibility that the District Court would strike down the law. She echoed the District Court's findings that the law had a discriminatory purpose to suppress African American and Latino votes and argued that enforcing a purposefully discriminatory law posed a far greater threat to public confidence in elections than the possibility of voter confusion if the stay was lifted. Ginsburg's dissent was joined by Justices Sotomayor and Ginsburg. No word on whether Justice Breyer agreed with the majority or simply fell asleep before Ginsburg circulated her dissent in the predawn hours Saturday morning.

Purcell concerns may explain the Court's actions in three other voting-rights cases in the last two weeks. On October 9, the Court (over the dissenting votes of Justices Scalia, Thomas, and Alito) granted an application to vacate the Seventh Circuit's stay of an injunction barring Wisconsin from enforcing its voter ID law. In that case, Frank v. Walker (No. 14A352), the injunction had issued in April and it was the Seventh Circuit's stay order that changed the rules at the last minute. As Justice Alito conceded in his brief dissent, absentee ballots had already been sent out without indicating that any particular photo identification would be required to cast a vote, so the concern about causing voter confusion was particularly pronounced. Two other voting-rights cases concerned not voter ID, but early voting and registration requirements. In North Carolina v. League of Women Voters of NC (No. 13A358), the Court granted an application to stay a preliminary injunction that would have prevented the State from enforcing its same-day registration ban, over dissenting votes from Justices Ginsburg and Sotomayor. And, as we mentioned in our last update, the Court in Husted v. NAACP (14A336) stayed execution of a lower court ruling that would have expanded early voting in Ohio. In each of these cases, as in the Texas case, it appears that the Court was concerned about disrupting voting rules just weeks prior to the November election.

Turning from one hot-button issue to another, the Court also made waves last week by lifting a stay in Whole Woman's Health v. Lakey (14A365), a case challenging Texas's restrictive new abortion law (the one Wendy Davis famously filibustered). Earlier in October, the Fifth Circuit stayed a district court's judgment enjoining Texas from enforcing two provisions of its abortion law—one requiring abortion providers to have admitting privileges to a local hospital and the other requiring abortion clinics to meet the standards required of ambulatory surgery centers. Last Tuesday, the Supreme Court vacated the Fifth Circuit's stay in principal part, over the dissenting votes of Justices Scalia, Thomas, and Alito. It seems likely that Texas will play a starring role in two major cases in the near future, on voter ID and abortion. Stay tuned.

Meanwhile, the Court has remained active on the gay marriage front, although with less internal disagreement. The Court, without discussion, has denied applications to stay court orders allowing gay marriages to proceed in Idaho (Otter v. Latta (No. 14A374)) and Alaska (Parnell v. Hamby (No. 14A413)). Still waiting for that circuit split, which may prompt the Court to formally weigh in on the question; in the meantime, the number of states in which gay marriage is now permitted is 32 and counting.

Finally, the Court granted cert in three new cases, and called for the views of the Solicitor General in another. Cert was granted in the following cases:

Los Angeles v. Patel (13-1175), which asks: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) Whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry, where the information supplied by the guest is mandated by a city ordinance, which authorizes the police to inspect the registry and, if so, whether that ordinance is facially unconstitutional unless it provides for pre-compliance judicial review before the police can inspect the registry.

Henderson v. United States (13-1487), which asks whether a defendant's felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court from ordering the government to (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant.

Chappell v. Ayala (13-1428), which asks whether a state court's rejection of a claim of federal constitutional error as harmless is an "adjudication on the merits" within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision." The Court also ordered that the parties brief and argue a second question: "Whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993)."

The CVSG came in a case of original jurisdiction, Mississippi v. Tennessee, et al. (143, Orig.), which concerns the City of Memphis's alleged misappropriation of Mississippi groundwater.

That brings us more or less up to speed. Here's hoping the Court slows down a touch; the calendar still says October, after all.

Kim & Tadhg