On this day…

One hundred and forty years ago today, President Rutherford B. Hayes signed a law allowing women to argue cases before the Supreme Court. Scott Bomboy wrote a nice article about this for Constitution Daily, an offshoot blog of the National Constitution Center. Here’s a brief excerpt:

Suffragette, teacher, lawyer and presidential candidate Belva Lockwood championed [this] cause with Congress after the Supreme Court ruled that women – and specifically Lockwood – could not practice law before it. In November 1876, Chief Justice Morrison Waite curtly replied to Lockwood’s request to be admitted to the Supreme Court bar. “By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counselors,” Waite said. The Chief Justice added the Court wouldn’t change its mind unless “required by statute.”

Undaunted, Lockwood spent three years after her 1876 rejection lobbying Congress and former President Ulysses Grant (who had presented Lockwood with her law degree) for a law that would force the Supreme Court to recognize the right of women to appear before it. President Hayes signed “An act to relieve certain legal disabilities of women,” which read that “any woman who shall have been a member of the bar of the highest court of any State or Territory or of the Supreme Court of the District of Columbia for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States.”

Shout-out to Ms. Silverman, a great history teacher at my school, for telling me about Mr. Bomboy’s article.

— Anna Salvatore

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Friday, February 15, 2019

Preview: Kisor v. Wilkie

By Joe Hanlon

Earlier this week, while studying for an AP Government quiz, I began thinking about the power of our country’s executive branch. The subject of constant debate in today’s political climate, executive power has real effects on American life. In fact, one of the most contentious aspects of Justice Kavanaugh’s nomination was his take on presidential power: would he vote on the side of an expanded executive or place limits on the power of the presidency? Although this question can’t be answered yet, we will soon have a better understanding of another important executive power question; that is, how much leeway do federal agencies get when interpreting and enforcing their own regulations?

In the coming months, the Supreme Court will hear arguments in Kisor vs. Wilkie, a case arising from a veteran’s benefits claim. The veteran, James Kisor, is seeking compensation from the Department of Veterans Affairs because he got post-traumatic stress disorder in the Marines. He unsuccessfully sought benefits in 1983, so he tried again in 2006.

According to its regulations, the VA will reconsider one of its earlier decisions if the claimant files “relevant” documents that already existed, but were not used in the department’s earlier decision. Kisor’s claim was denied again in 2006 because the VA found that his documents were not relevant.

His case made its way to the United States Court of Appeals for the Federal Circuit, where the United States government relied on precedent in Auer vs. Robbins and Bowles vs. Seminole Rock. In both cases the Supreme Court ruled in favor of federal agencies, allowing the agencies to interpret their regulations how they liked so long as their interpretations were reasonable. Here the Federal Circuit ruled against Kisor because it considered the VA’s interpretation “reasonable.”

Now in front of the Supreme Court, Kisor is asking the justices to rule squarely on whether Auer deference should be scrapped. His case presents a major opportunity to overturn a pillar of the administrative state, since some conservative justices believe that the Constitution prohibits executive agencies from enjoying so much power. Indeed, Justice Kavanaugh wrote several opinions limiting federal agencies’ power while on the D.C. Circuit.

However, disdain for ‘the fourth branch’ —  the world of departments and agencies — is different from disdain for the  entire executive branch. In fact, many people who call for deregulation of federal agencies also advocate for the expansion of presidential power.

The Court’s decision in Kisor vs. Wilkie will be one of the most consequential of the term. Much like Weyerhaeuser, this case could lay the groundwork for major shifts in the canons of administrative law. Kisor argues, and many scholars agree, that if agencies continue having such wide deference in the interpretation of their rules and regulations, they will arbitrarily interpret texts to mean what they want them to mean. Opponents of this view stress that this has not been the case and may never be true. What is for certain, though, is that the justices granted this case for reason, meaning that Auer may be on the way out.

Thursday, February 7, 2019

Domineque Ray is a death row inmate in Alabama. Convicted of raping, robbing, and murdering a teenage girl in 1999, Ray was set to be executed today. About two weeks ago, he met with a prison official to discuss the terms of his execution. He asked, among other things, that a Muslim imam be present with him in the execution chamber for spiritual guidance. The prison official explained that only a Christian chaplain can witness executions from inside the chamber. Inmates can bring along their own witnesses, including a spiritual adviser if they so choose, but these extra guests must stay in a sealed-off room.

Ray argued that the prison’s policy was unconstitutional under the Establishment Clause of the First Amendment, which says that the government can’t officially prefer one religion over another. Here, Ray asserted, Alabama was preferring Christianity over Islam. The Court of Appeals for the Eleventh Circuit held that his argument was “substantially likely to succeed on the merits,” and it temporarily suspended his execution.

Tonight the conservative wing of the Supreme Court voided the Eleventh Circuit’s suspension. The Court held that Ray had waited too long to seek relief, which, in Alabama’s view, should have happened when his execution date was set in November. He will probably be executed very soon.

In response, Justice Kagan penned her most full-throated dissent in a religious freedom case since Town of Greece v. Galloway (2014). Joined by Justices Breyer, Ginsburg, and Sotomayor, she called the majority’s decision “profoundly wrong” for a couple reasons. Here’s a (cleaned up) excerpt:

“The clearest command of the Establishment clause,” this Court has held, “is that one religious denomination cannot be preferred over another” (Larson v. Valente). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate of a different religion – whether Islam, Judaism, or another other – he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.

Usually, state policies that seem to prefer one religion over another must pass strict scrutiny. If the policy isn’t “justified by a compelling government interest” and narrowly tailored to achieve that interest, then it must fail under Larson v. Valente. Justice Kagan found that Alabama’s policy belonged in this category, and she expressed skepticism about the state’s rationale for excluding imams from the execution chamber.

Her second point of disagreement is that Ray was justified in seeking relief so soon before the execution.

The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice ‘may be present at the execution’ (Alabama Code). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear).

Here is the link to her full dissent, from which I copied-and-pasted quite heavily. You may also be interested in the Court’s other order tonight in June Medical Services v. Gee, where the four more liberal justices plus Chief Justice Roberts prevented a restrictive Louisiana abortion law from going into effect. Justice Kavanaugh dissented from their decision.

— Anna Salvatore