SCOTUS Watch – Monday, June 27th – UPDATE: Texas HB2 TRAP law is struck down!!! WIN for reproductive rights …

June is SCOTUS Decision month, when all eyes turn to the Supreme Court for rulings on the cases argued this term (before the court adjourns on June 30th for the summer). The calendar normally calls for orders and opinions to be released every Monday – 9:30am for orders and 10:00am for opinions.

As always, the Moose News Network will cover the SCOTUS events with the help of SCOTUSblog and Twitter.

All eyes turn to the court

The Supreme Court will be in session this morning for opinions starting at 10:00am Eastern. SCOTUSblog will liveblog at this link starting at 9:30am Eastern.

There are 3 cases pending:
WIN for women’s reproductive rights!!
Whole Woman’s Health v. Hellerstedt
Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.
WIN for victims of domestic violence
Voisine v. United States
Two men from Maine are challenging their convictions for possessing guns under a federal law that is intended to keep guns out of the hands of people who have previously been convicted of domestic violence. Their claim is that the conviction under state laws is not the same as a conviction under federal law that would trigger the ban.
McDonnell v. U.S.
Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

A full list of pending cases (with links) is below the fold.

USA Today analysis:

The court now faces three issues of huge social importance: Abortion, immigration and affirmative action.

Those are the highlights from among 19 cases left to be decided before the end of June. They include a second tier of closely watched cases, including one that could set a higher bar for public corruption, another that could help ease Puerto Rico’s crushing debt and a third that could affect drunk drivers who refuse breath or blood tests. […]

DECIDEDAffirmative action. A former white student’s challenge to the University of Texas’ use of racial preferences in admissions dates back the longest. The case was heard in early December, after being returned to the Supreme Court for a second go-round. In 2013, the justices demanded tougher judicial scrutiny of the school’s use of race, but an appeals court again sided with UT.

Unlike the other cases, this one will be decided by just seven justices, because Justice Elena Kagan has recused herself after working on it as U.S. solicitor general. Without the risk of a tie, advocates and opponents of affirmative action anticipate a ruling for or against the policy — perhaps with repercussions for other universities as well. The betting line tilts slightly against UT.

Abortion. Another case from Texas challenges a state law that imposed major restrictions on abortion clinics, ostensibly to protect women’s health. The law requires clinics to meet the same standards as ambulatory surgical centers and forces doctors to have admitting privileges at nearby hospitals — rules that threaten to leave only nine fully functioning abortion clinics in a state with 5.4 million women of reproductive age.

Two lower federal courts have upheld the law, but abortion rights proponents say it places too great a burden on women seeking abortions, without a justifiable health benefit. They may have a winning hand if Justice Anthony Kennedy joins the court’s four liberals against one or both restrictions. A substantive ruling could represent the most significant abortion decision by the court since 1992.

PUNTEDImmigration. Case number three from Texas is President Obama’s effort to overturn lower court rulings that have blocked him from offering more than 4 million undocumented immigrants a chance to remain in the country without fear of deportation. It represents his last chance to help the parents of those brought to the country as children who have already won such a reprieve.

Texas led a group of 26 states against the plan, complaining that it would have to pay for driver’s licenses if the parents dodge deportation proceedings. Obama’s best chance appears to be the hope that a majority of justices will decide the cost of licenses does not give Texas sufficient standing in court. Otherwise, a 4-4 tie would uphold the verdict of the lower courts, and the program would be dead.

Recap on Wednesday, 6/22/2016, by Amy Howe on the remaining cases, In Plain English, before last Thursday’s session. From her list, the remaining cases:

Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.

Whole Woman’s Health v. Hellerstedt (argued March 2, 2016). This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state. One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers. Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions. The Fifth Circuit upheld the new requirements, although they have not yet gone into effect yet.

McDonnell v. United States (argued April 27, 2016). Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in. He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars. The stakes are high for McDonnell: the Supreme Court agreed to allow him to stay out of prison while it heard his appeal, but that would change if he loses.

Speculation is that Breyer will be writing Whole Woman’s Health (he has only written 6) and Kagan will write Voisine. The Chief will probably write McDonnell so that he can take a bow for further blurring the lines between bribery and official acts, a precedent he started with Citizens United.

From SCOTUSblog: October 2015 Term cases pending (oldest cases first)

Voisine v. U.S., No. 14-10154 [Arg: 2.29.2016]

Issue(s): (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Whole Woman’s Health v. Hellerstedt, No. 15-274 [Arg: 3.2.2016, Transcript]

Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

McDonnell v. U.S., No. 15-474 [Arg: 4.27.2016, Transcript]

Issue(s): Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.


  1. “What is Texas Law HB2 all about?” courtesy of Samantha Bee:

    Not only is the court split ideologically on a woman’s right to choose but public opinion is split as well; on this law “Americans were nearly evenly split on whether they backed laws like the one in Texas, with 43 percent generally opposed and 41 percent generally supportive”, on abortion “47 percent of respondents said abortion generally should be legal and 42 percent said it generally should be illegal.”

    Roe v Wade is clinging by the thinnest of threads and the 2016 election, with the presidency and Senate majority in the balance, will determine whether or not it survives. If we lose today, we can undo some of the damage if we can get a Democratic appointee to fill the seat left empty by Scalia’s death and Republican Senate intransigence. But if the Republicans take the White House and keep the Senate, these laws will spread like wildfire.

  2. Today will be the last day “#waitingforLyle”. The long-time SCOTUSblog reporter, Lyle Denniston, will be leaving to take on a new job. Lyle, the 85 year old rockstar of SCOTUS geekdom, has been a fixture at these liveblogs since 2004 and will be missed by those who enjoy his quick wit and insightful commentaries.

    So, one more time: #waitingforLyle

  3. The order list has been issued (PDF): Court Orders 06-27-2016
    – Denied rehearing one of the 4-4 cases
    – Court noted probable jurisdiction in McCrory v. Harris

    Now, waiting for opinions …

  4. Four boxes for the three remaining cases.

    First case:

    Voisine v. United States, per Kagan.

    First Circuit is affirmed. The vote is 6-2. Thomas dissents, joined by Sotomayor as to Parts 1 and 2 only.

    Holding: A reckless domestic assault qualifies as a misdemeanor crime of domestic violence.

  5. Second case: TEXAS REVERSED!!! WIN FOR WOMEN!!!

    Whole Woman’s Health, per Breyer.

    The vote is 5-3; Thomas dissents. ALito dissents, joined by Chief and Thomas.

    RBG has a concurring opinion.

    Decision of the Fifth Circuit is reversed.

    To make a long story short, the Court strikes down both provisions of HB 2 — the admitting privileges requirement and the requirement that all abortion clinics have facilities comparable to an outpatient surgical center.

    The state had argued that the restrictions were necessary to protect women’s health.

    Abortion rights groups had argued that the real purpose of the law was to shut down clinics, making it very difficult if not impossible for women in Texas to obtain an abortion.

    • RBG concurrence:

      “So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.”

  6. Final case:

    McDonnell, per the chief.

    Decision of the Fourth Circuit is vacated and remanded. Unanimous Court.

    Holding: An official act in the statutes at issue is a decision or action on a question, matter, cause, suit, proceeding or controversy.

    MOre: That question or matter must involve a formal exercise of governmental power and must also be something specific and focused — that is, pending or may by law be brought before a public official.
    More: To qualify as an official act, the public official must make a decision or take an action on that question or matter, or agree to do so.
    More: Setting up a meeting, talking to another official, or organizing an event, without more, does not meet that definition of official act.

    McDonnell goes home.

    • Very disappointed in the McDonnell decision. He’s such a slimeball and I’d hoped to see that smug little smile wiped off his ugly mug permanently.

      But no, he got off and will live happily ever after with the Catholic priest. Boob McDonnell threw his wife under the bus. She is by no means blameless but she didn’t do anything worse than he did.

      What a bastard. I wanted to see him miserable.

      • Well, his career is ruined and he probably spent a boatload of money defending himself. I wish it were more because he is obviously ethically challenged but apparently unless you are caught handing out price lists for official acts, like Duke Cunningham did, this court does not think there is griftin’ goin’ on. Just like Citizens United and McCutcheon, the courts are willing to assume that politicians are not corrupt. Sad!

  7. CELEBRATE! And now we have to work harder to fix the balance of the court for generations!

    Thanks Jan

    • Yes, let’s get a 5 to 4 majority so we don’t have to sweat Kennedy’s vote for reproductive rights.

  8. Commentary on McDonnell:

    From Slate: John Roberts Makes an Absurd Comparison Between Grifting and Unions

    I know someone at this table will surely differ with me and assure us that it was good and proper for the Supreme Court to end its most intensely political term with a unanimous decision vacating a corruption conviction for a public official on the general theory that “everybody does this every day.” But seriously, merits aside for just a moment, how badly should America hate a guy who set up meetings and speeches and events at the governor’s mansion and afforded limitless access to a grifter able to purchase all that for the Falcon’s Crest price of a Rolex, designer dresses, a Barbie dream wedding, and the use of the Ferrari? Worse still, the unanimous court supports its reading of the federal anti-corruption statute with the amicus briefs that impressively cross all party lines to reveal that attorneys general and state officials of every political stripe agree that the federal anti-corruption statute sweeps too broadly. Good to know that the only thing our elected officials can agree upon in this deeply partisan day and age is that it isn’t corruption unless they say it is.

    From SCOTUSblog: New barrier to public corruption cases

    The legal victory did not come with a laundering of the public reputation of the former governor, once a rising political star in the Republican Party. Chief Justice John G. Roberts, Jr., concluded the eight-to-zero opinion with these thoughts — applicable as much to the governor’s wife, whose conviction is still awaiting the outcome of a separate appeal: “There is no doubt that this case is distasteful; it may be worse than that.” […]

    The government, the opinion noted, retains under the Court’s new interpretation of corruption “ample room” for prosecution of elected officials who are charged with taking money and gifts for performing some “official act.” The decision explicitly refused the ex-governor’s plea to strike down, as too vague, the basic bribery and extortion laws under which he was convicted. But by a sharp cutback of what kind of “official act” will be treated as corrupt when done in return for money or gifts, the new ruling poses a major challenge to prosecutors seeking to police official misconduct. […]

    Maureen McDonnell was convicted along with her husband and was sentenced to a year in jail. Her case has been on hold at the U.S. Court of Appeals for the Fourth Circuit, awaiting the outcome of the ex-governor’s appeal to the Supreme Court. Although the Court did not comment on her case, she very likely will be able to gain from the ruling, especially if her husband’s case now falls apart for the government.

  9. Reaction on Voisine:

    Think Progress: Justice Thomas Passionately Argues That Convicted Domestic Abusers Need Easier Access To Guns

    At-issue in Voisine v. United States is a technical question of whether two men with convictions for “reckless” domestic assault fall under a federal law prohibiting people convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. The law prohibiting domestic abusers from possessing firearms wasn’t the question under discussion — instead, the question was how far that law reached over certain states’ differing domestic assault laws.

    Justice Thomas, however, was very concerned in arguments about the broader law that domestic abusers at large can’t have guns — breaking 10 years of silence on the Court to complain at arguments in February.

    “Give me another area where a misdemeanor violation suspends a constitutional right,” he asked, later suggesting that the particular domestic abusers in this case shouldn’t lose their ability to carry guns because they’ve never actually “use[d] a weapon against a family member.”

    Thomas rule: No shooting, no foul. Reality:

    Most mass shootings (defined as a shooting with four or more casualties), however, take place outside the headlines. They’re private disputes, often with a clear track record of violence and assault escalating to a deadly incident. More than half of mass shootings involve a family member or intimate partner, according five years of data compiled by The Huffington Post. Of those, 81 percent of the victims are women and children. Victims of domestic violence are 12 times more likely to be murdered when a gun is involved.

    According to the government attorney on Voisine vs. United States, “individuals who have previously…­­ battered their spouses, pose up to a six­fold greater risk of killing, by a gun, their family member.”

    Nancy Pelosi: Statement on Supreme Court Decision in Voisine v. United States

    “Today, the Supreme Court affirmed commonsense gun violence prevention laws that save lives. Domestic abusers have no business buying deadly weapons, and we must act to expand and strengthen the background checks that keep guns out of the wrong hands.

    “We must do more to prevent the tragedy of gun violence in our country. Our first responsibility as Members of Congress is to protect the American people. The overwhelming majority of Americans support commonsense legislation to strengthen background checks and keep guns out of the hands of suspected terrorists and criminals.

    “Today’s Supreme Court ruling is a victory in our continued fight to disarm hate and save lives. The American people deserve a vote in Congress to prevent gun violence.”

    On that vote, by the way, the Republican House leadership said that they were “very angry” and there would be a “price to pay” if Democrats protested again. Former Majority Leader Tom Delay, whose Speaker was convicted child molester Denny Hastert, wept that it sullied “the dignity of the House”. Good lord, they have no shame.

  10. Analysis and commentary on Whole Woman’s Health:

    Think Progress The Supreme Court’s Abortion Decision Is An Unmitigated Disaster For Abortion Opponents

    Whole Woman’s Health leaves the right to an abortion on much stronger footing than it stood on before this decision was handed down. It’s difficult to exaggerate just how awesomely anti-abortion advocates erred in urging Texas to pass HB 2 in the first place. This law was supposed to provide those advocates with a vehicle to drain what life remains in Roe v. Wade. Instead, reproductive freedom is stronger today than it has been at any point in nearly a decade.

    HB 2, and the litigation strategy used to defend it, took advantage of an apparent contradiction in the Court’s abortion jurisprudence. Roe itself held that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” More recently, in 2007’s Gonzales v. Carhart, a 5-4 Court held that lawmakers enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The question in Whole Woman’s Health was whether a state could enact a sham health law that did little to advance women’s health and a great deal to shut down abortion clinics, and then claim that enough “medical and scientific uncertainty” exists to permit such a law to stand.

    Justice Breyer answers this question with a firm, unambigious “no.” Quoting from the Court’s 1992 opinion in Planned Parenthood v. Casey, Breyer writes that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” and therefore are unconstitutional. […]

    Breyer’s opinion slams that door shut, bolts it, places a bar over it, and pushes a sofa behind the door.

    Some of the the most Roe-undermining language ever to appear in a Supreme Court opinion has now been mostly neutered.

    SCOTUSblog: The Court once again makes the “undue-burden” test a referendum on the facts

    When the Supreme Court announced its decision in Planned Parenthood v. Casey almost twenty-four years ago, those on either side of the abortion conflict could not tell who had won. On the one hand, Casey clearly rejected the position taken by abortion-rights supporters throughout the litigation. Pro-choice attorneys had consistently argued that Roe v. Wade required strict judicial scrutiny of all abortion regulations. Whatever Casey had done, strict scrutiny was not it.

    On the other hand, the meaning of the “undue burden” standard, the new controlling standard in abortion jurisprudence, was as clear as a helping of Justice Antonin Scalia’s “pure applesauce.” Did the “undue burden” test leave room for meaningful challenges based on record evidence? Or had Casey just dressed up rational-basis review?

    Today’s five-to-three decision in Whole Women’s Health v. Hellerstedt finally offers some answers to these questions.

    NY Times: The Facts Win Out on Abortion

    SOMEONE landing from Mars on Monday and coming upon Justice Stephen G. Breyer’s majority Supreme Court opinion in the Texas abortion case would have had no hint of the decades-long battle over women’s right to abortion and the dogged efforts by states to put obstacles in their way.

    There is no poetry in the 40-page opinion, which strikes down a Texas law that would have closed most abortion clinics in the state in the name of protecting women’s health. The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

    There was no mystery in what the five justices in the majority, crucially including Justice Kennedy, accomplished this time, nor in the decision’s impact. By holding the state’s asserted rationale for its clinic-decimating regulations up to the light and finding it specious and counterproductive, the court has shut down one of abortion opponents’ main recent strategies: enacting “targeted regulation of abortion providers” laws that impose on doctors who perform abortions special restrictions not placed on doctors who do procedures of equal or greater risk.

  11. The incomparable Dahlia Lithwick at Slate: Abortion was saved with a dry, wonky, emotionless opinion from a man. Which is kind of perfect.

    … while oral argument was dominated by the three female justices who more or less peeled Texas Solicitor General Scott Keller like a grape, it seems weirdly fitting, if wholly lacking in drama, that Justice Stephen Breyer reads Monday from his majority opinion in the case, with his customary academic abstraction.

    There is something about the wonky male justice reading at length from the bone-dry claim preclusion section of his opinion that drains the last modicum of gendered passion from the morning. Ruth Bader Ginsburg sits and listens, like a tiny lawn decoration. The justices sit at the bench looking weary. Chief Justice John Roberts appears to have aged five years in the past four months. […]

    And while the morning may be lacking for drama, and the general feeling from the bench is simple relief that all this is over, there is also something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an “ambulatory surgical center,” that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. It’s a case about pretextual laws that could have caused untold damage and about the constitutionally protected right to choose …


    Scott Lemiux on why Kennedy switched:

    TRAP laws resembled medical regulations, but their real purpose, in singling out abortion clinics despite the relative safety of the procedure, was to create burdens for these clinics, making it difficult or even impossible for them to operate. Texas HB2, an issue of contention in Hellerstedt, is a classic example. Texas placed requirements on facilities and doctors that would have closed more than half of the states’ already relatively small number of clinics, regardless of actual safety concerns.

    It was this sort of practice that almost certainly pushed Kennedy back toward the liberal faction of the Court. Facing a brutal interrogation at oral argument, the medical justifications offered by Texas Solicitor General Scott Keller were almost farcically thin. It’s telling that the dissenting opinions in Hellerstedt focused primarily on procedural questions, and offered only cursory and half-hearted attempts at defending the sham justifications offered by Texas in support of its statute. The Texas regulations are not about protecting women’s health. They’re about trying to restrict, and eventually eliminate, abortion access. […]

    Republican legislators were in fact using Casey to eliminate the rights Casey sought to protect, and it’s not surprising that Kennedy refused to go along.

  12. What next?

    Abortion providers aim to reopen some closed Texas clinics

    Dr. Bhavik Kumar, who performs abortions at Whole Woman’s Health clinics in Texas, said abortion providers will seek to reopen some of the shuttered clinics but do not expect to be able to return to the number in operation prior to the law.

    Negotiating new leases and hiring staff will mean a slow return to operations for those that do re-open, Kumar said.

    The Supreme Court ruled that both key provisions of the law – requiring abortion doctors to have difficult-to-obtain “admitting privileges” at a local hospital and requiring clinics to have costly hospital-grade facilities – violated a woman’s right to an abortion established in a 1973 landmark ruling.

    “I am beyond elated,” Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which operates four abortion clinics in Texas and spearheaded the challenge to the law.

    The Decision Overturning Texas’ Abortion Law Will Have A Dramatic Impact Across The Country

    The decision reaffirms the standard put forth in Planned Parenthood v. Casey — another major abortion case that the Supreme Court took up in 1992 — that stipulated state laws may not restrict abortion to the point that presents an “undue burden” on the right to choose. It suggests that some TRAP laws may go too far to violate this standard.

    That’s significant because TRAP laws — many of which are identical to Texas’ — have quickly spread across the country over the past decade. Led by Americans United for Life (AUL), a sophisticated anti-abortion group that drafts model legislation and shops it around to state lawmakers, multiple states have adopted the same exact type of admitting privileges and ambulatory surgical center requirements.

    According to the Guttmacher Institute, which tracks state-level abortion laws, 14 states require abortion providers to have some kind of partnership with a local hospital. Five of those states specify that must be in the form of admitting privileges. And 22 states require that abortion clinics must follow the same licensing standards as ambulatory surgical centers.

    Monday’s decision doesn’t mean that those state laws will automatically be rolled back. The arguments against Texas’ TRAP law relied on a lot of specific data about how women in that state have suffered with sharply reduced access to clinics. Other states may be able to mount their own arguments about why their own TRAP laws haven’t had such a dire effect.

    But it is clear that TRAP laws are now on much, much shakier ground than they were before the high court waded into this issue.

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