Friday, October 12, 2018

Please welcome Curtis Herbert as the newest High School SCOTUS contributor. Curtis is a high school junior from Minnesota. He’s interested in constitutional law, heavy metal music, and the Houston Astros. 

Sanctuary Cities and Supreme Court Precedent

Curtis Herbert

Under the anti-commandeering doctrine, the federal government cannot force a state to change its immigration laws. Although the monetary incentives the government imposes on the states are arguably constitutional under South Dakota v. Dole and NFIB v. Sebelius, Supreme Court precedents such as New York v. United States and Printz v. United States expressly forbid the infringements on federalism that are contained in the federal government’s sanctuary city policy. This post will focus on two provisions of the policy: the requirement that cities cooperate fully with federal immigration officials, and the government’s prohibition of state laws that are contrary to cooperation.

I

Recently, Attorney General Jeff Sessions’ plan to force so-called “sanctuary cities” to cooperate with federal immigration officials was stymied by federal judges. But these rulings are far from left-wing judicial activism; they are based on well-established and recently affirmed Supreme Court precedent.

In New York and Printz, the Court laid the groundwork for what is now dubbed the anti-commandeering doctrine. Simply put, this doctrine holds that the federal government may not ‘commandeer,’ or force, state legislatures or officials to take action. In New York, the federal government tried to force the New York state legislature to construct facilities for radioactive waste disposal. The waste was a byproduct of wristwatch-making, since  manufacturers used radium to make watches glow in the dark. New York would be forced to “take title,” or assert ownership of, this waste if it didn’t construct the proper facilities. To summarize Justice Sandra Day O’Connor’s majority opinion, the government cannot mandate state action on the legislative level. And Printz extended this logic to state officials. It essentially held that if the federal government wishes to enforce its federal regulations in the states, and the states are not complying, the federal government may send federal agents to enforce its federal laws. States can’t be forced to comply. Last term, in NCAA v. Christie, the court also extended the anti-commandeering doctrine to cover federal laws that prohibit state legislation.

For the most part, the justices who dissented in New York also dissented in Printz, with Justice Souter acting as the exception. And Printz was not an obscure case; state officials were being ‘commandeered’ to enforce provisions of the Brady Gun Control Act. It was a 5-4 decision. However, as we will see in part III, the logic that once applied favorably to the political right has now turned against it. Let’s now examine Dole and NFIB.

II

Having dispensed with the first portion of federal action, we now address the second: federal withholding of funding. There are two relevant precedents here: South Dakota v. Dole and NFIB v. Sebelius. Here are the facts of Dole: After noticing that South Dakota had a lower drinking age than its neighboring states, the federal government feared that teenagers would cross state borders to drink. So Congress passed the National Minimum Age Drinking Act in 1984. This law withheld 10% of federal highway funding from states with a legal drinking age under 21.

The question presented in Dole was, ‘Does the spending clause enable Congress to attach strings to funding?’ The majority opinion held that it does give Congress that authority, so long as the government doesn’t (among other things) withhold funds in a coercive manner. Also, the government can only withhold funding for an activity that’s reasonably related to the government’s interest “in particular national projects or programs.” For example, the Attorney General can’t withhold funding for state border patrol agencies because the state isn’t conducting health inspections of its restaurants. In her dissent, Justice O’Connor argued that the government could only attach strings to how money is spent. So she found that the government could control how South Dakota’s highway was constructed, but it couldn’t withhold money from the state’s highway coffers.

This brings us to NFIB. Now, most people who are familiar with NFIB think of Chief Justice John Roberts’ construction of “tax,” or, if they are particularly invested, the Commerce and Necessary and Proper Clauses. But many forget the portion of the law that the Court invalidated. In that portion, the government threatened to withhold the entirety of federal Medicaid funding from the states if they didn’t expand the program. A seven-justice majority of the court (Breyer, Kagan, Roberts, and the four dissenting justices) held that this was impermissible coercion under Dole. They reasoned that if billions of dollars of Medicaid funding was withheld, state governments would go under. The states were free to either accept federal funding and expand Medicaid, or to retain their current funding and the size of their Medicaid programs.

III

But what does this have to do with sanctuary cities? For the purposes of this blog post, I’ll discuss how the anti-commandeering doctrine and the non-coercion doctrine relate to the current sanctuary cities cases.

The anti-commandeering doctrine applies readily to this situation, since it’s a classic example of the federal government trying to infringe on state sovereignty. Both sides should be consistent in acknowledging this. Recall that New York and Printz were opinions written by conservatives. Judges who have never cited a Scalia opinion in their lives now cling to even the dictum, while conservative commentators rail against ‘left-wing activism.’ The political parties are ignoring nuance and throwing intelligent discussion to the wind. If you believe that New York and Printz were correct, then it follows that the federal government’s provisions requiring state assistance to federal officers and mandating state legislation are unconstitutional. If you believe that New York and Printz were wrong, then there’s no basis for believing that the government’s current actions are invalid.

The spending clause issues are different. I will discuss, under Dole, three different arguments. They all assume that the withholding of federal grant funds can be non-coercive. In the current sanctuary city cases, the government is only withholding a couple of million dollars — a pittance compared to the massive budgets of cities like San Francisco, Chicago, and New York. I don’t think that that can be faithfully classified as coercive. But this is where the arguments branch off. The first one stops there, and it claims simply that the grant funding provisions are facially constitutional under Dole. The second argument also accepts Dole, but contends that the grant funding is not reasonably related to sanctuary city policy. The third rejects Dole wholesale and agrees with Justice O’Connor’s dissent, saying that Congress’ spending clause authority is only limited to the money it provides and how that money can be used — nothing more. It follows that law enforcement grants can only impose conditions on what sort of materials, training, and police officer benefits that the city can supply.

I don’t have the space to reargue Dole, evaluate the merits of overruling it, or interpret it more narrowly. And I take a stronger position on the commandeering of state officials because I believe it’s useful to expose inconsistency on both sides of the political spectrum. The reader is encouraged to disagree with and challenge any of my assertions.

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Monday, October 8, 2018

By Anna Salvatore

Judge Thomas Hardiman, a frontrunner for the two latest Supreme Court nominations, spoke at Princeton University on Saturday evening. Students, professors, and community members thronged the lecture hall for his conversation with professor Keith Whittington.

Judge Hardiman

Hardiman began the conversation by contrasting federal courts with the Supreme Court. “It’s amazing to me,” he said, “how much the American people don’t recognize the difference.” First, he explained that the Third Circuit hears 2900 more cases than the Supreme Court each year. This is because circuit courts are required to hear appeals from the lower courts, no matter how boring or unimportant they may be. Meanwhile, the Supremes have near-total control over their docket. The Judiciary Act of 1925 freed them from mandatory appeals, so they only grant cases that present pressing legal questions.

Another difference, said Hardiman, is that circuit judges have to follow precedent. Take Tinker v. Des Moines as an example. The Supreme Court’s 1965 opinion creates a “substantial disruption” test for schools that seek to limit student speech. If you’re a circuit judge, you can’t ignore this test when you disagree with it. But if you’re a Supreme Court justice, you can absolutely ignore it; you can even overturn Tinker if you have the votes.

Some circuit judges will follow a precedent, and if they strongly disagree with it, they will then signal their disagreement in a dissent or concurrence. Hardiman “has no problem with that.” It’s a “little strong,” he said, but it should be fine so long as the judge scrupulously adheres to the Constitution and raises his or her point respectfully.

Twice in the past two years, Hardiman was passed over for a Supreme Court seat. He talked on Saturday about the harsh media spotlight he endured. One of the best things about his job is anonymity, he said, and being on President Trump’s list was “a striking and shocking thing.” Journalists camped outside his house for three days before the Gorsuch nomination, which upset his neighbors. He also recalled standing at a gas station when a gray car sped into the lot. A man hopped out, pulled a black thing from his shoulder, and aimed it at the judge. “I thought he was going to shoot me,” laughed Hardiman. It was a camera, and the resulting picture fanned speculation that he was en route to D.C.

It’s still possible that Hardiman will become a Supreme Court justice. Until then, he’ll enjoy the relative obscurity of serving on the Third Circuit.

Interview: Chief Judge Diane Wood

Joe Hanlon recently spoke with Diane Wood, who is Chief Judge of the United States Court of Appeals for the Seventh Circuit. They talked about the importance of civic engagement, the judiciary’s role in a functioning democracy, and the past Supreme Court justice she would most like to have dinner with.

Diane Wood

Tell me about your high school experience. What was on the forefront of national discussion, and how were you involved?

My high school experience was somewhat scattered because, between my sophomore and junior years of high school, I moved from Westfield, New Jersey down to Houston, Texas. So that was disruptive, as you might imagine. Houston was a place that was very open in those days. I went to one school down there in my junior year, but it was so big that it had to split in half. So I went to a different school for my senior year.

At the time, two huge things were happening nationally. First of all, the war in Vietnam was accelerating, and the 1968 election was shaping up to be one where the war was going to be a big issue. And President Johnson wasn’t going to run for office again; that was a constant subject of conversation. The other major things that were happening were all related to the civil rights movement. First you get the Civil Rights Act in 1964, and then you get the Voting Rights Act and the Fair Housing Act of 1968 — you get lots of other aspects of ‘The Great Society,’ so that was very much in people’s minds.

What influenced you to go to law school?

I decided to go to law school largely because I was looking for some kind of career that would allow me to remain engaged in the society around me. I had thought very seriously of doing graduate work in comparative literature, but I decided that was too ivory tower. It seemed like law was the best way to go. And literally from the moment I started law school, I was very happy with the choice and knew that I had made the right decision.

What was it like to clerk for Justice Blackmun?

It was an amazing experience. You’re involved with every detail of the Supreme Court’s work for that period of time, whether it’s the cert petitions, what the justices are thinking about in their conference, how their opinions evolve, looking at how the press covers opinions — not always as accurately as they should — it was altogether just the most enriching experience. My fellow co-clerks, both in the Blackmun chambers and around the building, have been lifelong friends.

What was the most important lesson you learned while clerking?

I think the most important thing that I learned, which I have taken forward into my own career as a judge, is to pay meticulous attention to the record in every case — to the facts and the law. Don’t take shortcuts, listen to other people, and do the best you can to decide the case in a fair way in light of everything.

How can we get more people involved in public life?

It’s interesting that you should ask that. I’m involved with a group right now at the American Academy of Arts and Sciences on what we’re calling the practice of democratic citizenship, and that’s precisely the question we’re trying to answer. My own feeling is that it begins at the community level: it begins in schools at your age, and it goes forward to governance of a school board, a town, an issue perhaps that you are interested in, and people really make a mistake if they don’t pay attention to their state. The state level is critically important. The federal government is very high-profile, and you should vote for president and your senators and representatives, but government at all levels is important. I think that many people overlook the opportunities to serve and also the importance of it.

Did your nomination feel like a culmination of your hard work? What was your reaction when it approached?

I wasn’t expecting it. I mean, you can’t really expect these things because they come along so infrequently. At the time I was nominated, I was on a leave of absence from the University of Chicago Law School, so I was more or less commuting from Chicago to Washington, D.C. and working at the US Department of Justice. I became aware of the upcoming vacancy in the Seventh Circuit and was very fortunate to have quite a few people willing to recommend to the White House that I be the nominee. I had no idea until I got the call that it was going to work out, but I was certainly thrilled that it did.

How does your role as Chief Judge of your circuit differ from that of a circuit judge in general?

The Chief Judge — and I’ve been chief now for more than five years — is responsible for quite a few administrative things around the court, many of which are quite important. The Chief Judge, for example, looks at all complaints about judicial conduct and disability to see which ones need further investigation and gets the committee together to do that. The Chief Judge is the administrative head of the court. The Chief designates people to sit elsewhere and represents the circuit on the judicial conference. So all told, it’s probably a few hours of work every day on the administrative things — and on our circuit, the Chief Judge still takes a full caseload. And the Chief Judge assigns the writing responsibility for all opinions if the Chief is on the panel, and certainly presides over the en banc court. So there’s a lot that goes with it.

When a case is before you, what is your process for attempting to resolve it?

We normally hear six cases in a day for oral arguments, and our court believes very much in oral argument. So I’ll sit down and read all of the briefs, plus background materials, in each of the six cases. My estimate is that by the time all’s said and done, I probably read two thousand pages for every day of oral argument. You have an opening brief, a reply brief, whatever the lower court did, any pertinent cases, materials for the record and so on, times six. I’m very interested to know what the parties think is either wrong or right, what kind of relief they want, whether that’s something the court is in a position to give them, how the Seventh Circuit fits in with what the other circuits are doing, and, obviously, if the Supreme Court has done anything in the area that I need to know about. It’s a lot of preparation.

You brought up what the other circuits are doing, and I’ve been interested in that lately because I’ve seen a lot of things go to the Supreme Court with a circuit split. How much weight do you give another circuits’ decision when deciding a case?

We give it a fair amount of weight. Our court has an unusual procedure that we use when we’re thinking of creating a conflict with another circuit. This is what our panel will do if there is no existing conflict, but we think one or more circuits out there have the wrong answer. We circulate an opinion to the full court and say, “We’re proposing to create a conflict with circuits A, B, and C — here’s why, here’s the explanation.’ All judges on the court will vote before a conflict is created. We do that because it’s important, because we know that it would trigger rule ten of the Supreme Court’s rules, and we don’t want to do that lightly.

As a judge, what is most rewarding about your role in our society? What is most difficult?

*laughs* It’s both. As your question implies, it’s rewarding and difficult. It’s very rewarding to have the trust of people, to be in the position to resolve disputes in such a wide range of subjects. I’ve traveled quite a bit internationally and met with judges from a very large number of other countries, and they’re often astonished that we have constitutional, administrative, criminal, civil, state, and federal responsibilities. I find it a great challenge, but it’s also a great privilege.”

What are some reasons you think an independent judiciary is outlined in our Constitution? Why are these important?

Well, I’m sure you’ve read the Federalist Papers. The drafters of the Federalist Papers and the drafters of the Constitution itself knew that you had to have a judiciary that would apply the law fearlessly, and not be under the thumb of — whether it’s King George III or somebody today — any sort of executive influence. Because we want to be a society under the rule of law — not some executive whim. So of course they put in the very famous protections: you have your job during your ‘good behavior,’ which is essentially life tenure, and the protection of salary. I have thought many times what smart people these were and what a good structure this is.

The appointment structure works quite well because you don’t have to run for office — you call it as you see it. You do the very best you can to apply the law as you understand it to be. We of course do have provisions in our country to fix things, whether it’s mending the Constitution at the Supreme Court level or having lower courts, if somebody thinks we’re wrong, appealing to the Supreme Court about it. I think that’s all critical. I have often seen the opposite in other countries where the judges have been arrested, the judges have been taken away from their office, the judges have been persecuted in certain ways, and that does not lead to a rule of law society.

What are the most common misconceptions about the judiciary in America?

They all think you’re Judge Judy. *both of us laugh* I don’t think people are aware that there are two parallel systems of courts — state courts on the one side and federal courts on the other. So that’s already a profound structural misunderstanding about the system we have. The state courts are incredibly important, as they easily do nine tenths of the judicial business of the United States. We need very much to pay attention to measures that will allow them to work effectively. As for the federal courts, I think people don’t understand the difference between judicial independence on the one side and doing whatever you feel like doing on the other side. Independence doesn’t mean doing whatever you feel like doing;  independence means you decide according to your best understanding of the law.

His questions are in bold; her answers are in plain text.

If you could have dinner with any non-sitting Supreme Court Justice, who would you choose and why?

*laughs* A lot of them that would be interesting… I’m going to say Robert Jackson, one of my most admired justices. First of all, he was an amazing lawyer. He was actually one of the last people — maybe the last person —  to sit on the Supreme Court who didn’t go to a formal law school. He read law. In every role he had, as Attorney General, as Supreme Court justice, as the chief Nuremberg prosecutor, he was brilliant and effective, and he had a very clear and extraordinarily adept way of expressing himself. I would very much imagine that would be an interesting dinner.

Didn’t he take off a year to be the Nuremberg prosecutor?

Yes, he took a leave of absence to go do that. It’s something that probably wouldn’t happen now, by the way. Before he agreed, he said, ‘I’m not going to do this unless it’s understood by everybody that the results of these proceedings might be convictions, but they might be acquittals. I’m not going to preside over a kangaroo court.’ And they said, ‘We get it. This is court that is going to be serious, that is going to decide based on a record.’ And indeed, there were some acquittals.

What is one message you would give to students who are passionate about law and public service?

I would say, “Good for you!” Don’t lose that passion, and work for whatever issues seem worthy to you. Everybody’s going to have their own list of things that they think are important, and that’s great. That’s exactly how our country should work. If people don’t have those important issues, then our democracy is not going to work the way our Constitution’s drafters and the people who suffered during many wars and elsewhere meant for it to be for us. So I think it’s a very high civic duty, and I hope that as many young people as possible will becoming lifelong public participants.

Joe Hanlon has also interviewed Edith Roberts, an editor of SCOTUSblog. 

Saturday, October 6, 2018

The Supreme Court’s Public Perception

by Caleb Horn

When I talk to people about the Supreme Court, they typically know about Ruth Bader Ginsburg, Roe v. Wade, the Kavanaugh hearings, and not much else. Last term featured uniquely high-profile cases like Trump v. Hawaii or Masterpiece Cakeshop — and my friends knew about those. But the sad reality is that the judiciary is the least understood branch of government, and Kavanaugh’s hearings will control public perception of the Court for a long time. Democratic senators seemed like they cared more about the seat than about Dr. Ford’s allegations, and Republican senators didn’t seem to care about the allegations at all. The hearings looked like any other partisan circus on the Hill.

This is truly a tragedy, because the Supreme Court could not operate more differently than the other branches of government. An underreported fact is that the most common vote split from last term was 9-0 — by far. The Court unanimously agreed in more cases than they split 5-4 or 6-3 combined. The justices are also incredibly collegial; as Justice Kagan mentioned yesterday at Princeton University, they eat lunch together every week without talking about work. Try to imagine, for a moment, Nancy Pelosi and Mitch McConnell chatting about their favorite television shows over Chick Fil A. The Supreme Court can do this because its work isn’t exclusively partisan. That’s why it’s so harmful to have hearings where the votes are split down party lines and the nominee decries a supposed conspiracy by the Clintons. Reasonable people can walk away from the hearings thinking, “If the nomination process is so partisan, the Supreme Court must be a bunch of black-robed politicians.”

Because the Court’s power is deeply tied to its perceived legitimacy, it is crucial to restore the public’s confidence in the institution. One solution, supported by Fix the Court, is to create 18-year term limits for Supreme Court justices. This may reduce the stakes for each nominee, since each president gets two guaranteed picks for the Court. Another idea was shared by Dan Epps and Ganesh Sitaraman in Vox; they propose a system with fifteen justices —  five Democrats and five Republicans — who would have to unanimously agree on the other five justices chosen from the Courts of Appeals. They hope that this would restore swing justices to the Court and reduce its partisan reputation.

A great irony is that the least understood branch of government relies the most on its perception. One thing is clear: the Supreme Court is facing serious questions about its legitimacy, and without sweeping institutional changes, its situation will only get worse. 

Friday, October 5, 2018

by Anna Salvatore

Hours after Judge Kavanaugh cleared a key procedural vote, Justices Elena Kagan and Sonia Sotomayor spoke at Princeton University for a female empowerment conference. The venue was packed with three thousand alumni, who scrambled in as soon as the doors opened to snag seats. 

Although Kavanaugh may be confirmed to the Supreme Court tomorrow, his name wasn’t mentioned once. Moderator Heather Gerken, the dean of Yale Law School, stuck to uncontroversial questions about the justices’ careers and college experiences. And it’s hard to blame her. If Kagan and Sotomayor commented on Kavanaugh, the ensuing media explosion would eclipse the entire conference. That said, it felt strange to laugh about the justices’ poker proclivities while such pressing questions went unasked.

Photo credit: Princeton University

I sat in the press section, which comprised two rows of chairs in the back right-hand corner of the room. I had a clear, albeit distant view of Justice Kagan if I tilted my head. Justice Sotomayor was visible if I bounced in my chair. Of course, the journalists sitting around me were less concerned with seeing the justices and infinitely more concerned about meeting their deadlines. They typed furiously into their laptops, adding details to pre-written outlines and dashing off emails. Very intimidating. 

I straightened in my chair when Justice Kagan began talking about swing justices. Over the last thirty years, she said, there have always been justices who vote unpredictably in major cases. First came Sandra Day O’Connor, and then came Anthony Kennedy. Neither voted in lock-step with the president who appointed them, which enabled the Supreme Court to look “impartial, neutral, and fair.” Now, she said, it’s not so clear that the Court will have a swing voter: a polite way of saying that Justice Kavanaugh will vote often with the conservatives. “All of us need to realize how precious the Court’s legitimacy is.”

It’s getting late, and and I’d like to post this before the night is over. So here are some conversation snippets in bullet-form:

• Why did you choose Princeton?
  • Justice Kagan said that, like most seventeen year olds, she had no idea what she was doing when she visited colleges. She saw Princeton on a glorious spring day and fell in love with it.
• How do you find a mentor?
  • “You don’t find them — they find you,” said Justice Sotomayor. “You have to demonstrate your ambition” and show them that you’re interested in learning. And if they give you advice, put it into practice. They won’t want to help if their suggestions are ignored. 
• What’s it like to be the only woman in the room?”
  • “I don’t believe you can be part of the working world,” said Justice Sotomayor, “without having a story about being treated differently because you are a woman… It can leave scars.” Most every woman in the room nodded in agreement. Sotomayor qualified, however, that there have been many good men who have mentored her and understood the importance of gender equality.
  • Justice Kagan’s predecessor as dean of Harvard Law School, Robert C. Clark, decorated his office with pictures of previous deans. It was “13 of the scariest-looking older white men,” she recalled. “And so the first thing I did [as dean] was I took that picture down.”
• How do you write your opinions?
  • Dean Gerken asked about Kagan’s “weaponization of the First Amendment” line in Janus, a recent public unions case. This led to a fascinating detour about how the justices want their opinions to be read. On the one hand, Sotomayor likes to make people feel things — to convince them of the moral justice of her position. Not so much for Kagan, who wants her readers to think that the majority has screwed up.  “I guess I want them to feel it,” she added, laughing.
    • Fun fact: Kagan credits her senior thesis adviser, Sean Wilentz, for teaching her how to write. He was sitting in the front row.

 

Thanks for reading. I’ll try to post tomorrow, too, since Judge Thomas Hardiman is coming to Princeton for a Federalist Society event.

Thursday, October 4, 2018

A few days ago, the High School SCOTUS kids converged on Washington to see oral arguments. We had a spectacular time, and I expect we’ll write more about it later. For now, though, here is a poem that Kai Franks wrote before entering the courtroom. 

Thursday, September 27, 2018

Oral Argument Preview: Mount Lemmon Fire District v. Guido

By Anna Salvatore

Next Monday, the Supreme Court will consider whether the Age Discrimination in Employment Act (ADEA) applies to state and local employers with fewer than twenty employees. The case, Mount Lemmon Fire District v. Guido, arose when an Arizona fire district was having financial problems. A drop in property tax revenues forced the district to make budget cuts, so the fire chief laid off his two oldest employees: John Guido and Dennis Rankin. The former employees filed a federal age discrimination suit in 2013. The district court ruled against them, finding that the ADEA only applies to state political subdivisions with at least twenty employees. Mount Lemmon was exempt from the law because it had eleven full-time employees.

After the firemen appealed, the Ninth Circuit Court of Appeals reversed the district court. It held that, “as a matter of plain meaning,” the ADEA applied to all state political subdivisions regardless of size. Because this opinion broke from Sixth, Seventh, Eighth, and Tenth Circuit precedents, the Supreme Court had almost no choice but to resolve the circuit split.

Before you read any further, it may be helpful to read the ADEA’s definition of “employer.” (Note that the word “person” isn’t meant colloquially, as it refers to organized groups of people like unions and corporations.)

[An employer is] a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year … The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.

Guido and Rankin claim that the phrase “also means” helps their argument because it “creates a distinct, freestanding category of public employers.” In other words, the phrase introduces additional employer categories that are covered by the ADEA. If you have trouble understanding this, imagine that your school principal defines misbehavior as “failing to follow your teacher’s instructions.” She then says, “misbehavior also means acting obnoxious in class.” The firemen argue that the second definition is entirely different from the first. Failing to follow your teacher’s instructions is misbehavior, and so is acting obnoxiously in class. When carried over to the Mount Lemmon, this means that groups with twenty or more employees are “employers” — and so are state political subdivisions.

The fire district interprets “also means” very differently. In their opinion, the phrase doesn’t introduce additional definitions of employers; rather, it clarifies and amplifies the first part of the sentence. Let’s go back to my school hypothetical. Using Mount Lemmon’s logic, the phrase “acting obnoxious in class” restates and clarifies the previous sentence about “failing to follow teacher’s instructions.” Acting obnoxious is not a separate offense from disobeying your teacher. The second sentence merely emphasizes that school administrators disapprove of obnoxiousness.

From a common-sense perspective, Guido and Rankin’s interpretation seems more reasonable than the fire district’s. We’ll just have to see whether the justices agree on Monday. In the meantime, interested readers should check out SCOTUSblog’s oral argument preview.  You can then navigate to Mount Lemmon’s homepage and read the parties’ briefs. 

Fun Fact: In a previous post, I mentioned that us High School SCOTUS kids are seeing oral arguments next Monday. Mount Lemmon is one of them!