why courts matterHere’s a look at a few of the stories headlining courts and law news this Monday.

The challenges to the election law changes enacted last summer get their first real test this week, as hearings begin in federal court in Winston-Salem. Following what is expected to be a week-long presentation of witnesses and evidence, U.S. District Judge Thomas Schroeder will decide whether to block enforcement of those changes during the November 2014 elections per requests by the Justice Department and several groups and individuals,  or dismiss the cases at the request of the state.  Read more about the case here.

Among those groups are several college students challenging the voting laws as violating the 26th Amendment.  That’s the amendment which lowers the voting age to 18 from 21 and also provides that the right to vote “shall not be denied or abridged by the United States or any state on account of age.” According to this story in the New York Times, there’s not been another case of its kind.

The post-mortem of the Supreme Court’s ruling in Hobby Lobby continues on the heels of an order from the high court on Thursday, ruling that Wheaton College in Illinois need not fill out the forms required for non-profit groups seeking a religious exemption from the contraception mandate — which prompted a scathing dissent from the women on the court.

Vox has this recap of the ruling and reaction.

And this morning’s Wall Street Journal has this profile of North Carolina born-and-bred Loretta Lynch, who for the past 15 years has quietly led the federal prosecutor’s office in Brooklyn, N.Y.

Supreme courtOn Monday the U.S. Supreme Court will wrap up its term with decisions expected in two remaining cases.

In Burwell v. Hobby Lobby, Inc., the justices will decide whether the Affordable Care Act’s contraception mandate unconstitutionally impinges upon the company’s religious freedom. (Read more about the case here.)

In Harris v. Quinn, the justices will decide whether home healthcare aids who do not want to join a union can be compelled nonetheless to pay for the union’s contract negotiation efforts (“fair share” fees).  Read more about the case here.

With those decisions, legal experts and pundits can complete the ritual of devining trends and alliances on the court. And this year, so far, what’s stood out is the unanimity with which the justices have acted.  Of the Court’s 70 decisions this term, 47 have been unanimous. 

According to Neal Katyal, an attorney who argued four cases before the Court this term, the last time this happened was 1940.

Katyal casts that consensus in lofty terms in this New York Times op-ed:

The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work, and striking down a Massachusetts ban on protests near abortion clinics — should remind us that even in this hyperpartisan age, there is a difference between law and politics.

Unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship. The best illustration of this in the modern era is Brown v. Board of Education, in which the court unanimously declared racial segregation in education to be unconstitutional. When the justices forge common ground, it signals to the nation the deep-seated roots of what the court has said and contributes to stability in the fabric of the law.

But Garrett Epps, a former Washington Post reporter who teaches constitutional law at the University of Baltimore, characterizes the justices’ unanimity this term as somewhat superficial, reminding us that deep partisan divides still linger beneath the surface.

Agreement this term may be more pragmatic, he writes in this Atlantic piece:

The unanimity refers to results. Equally important in a Supreme Court case is the reasoning on an opinion. A Court’s explanation of its decision will create a new precedent and narrow, expand, or overrule old ones. And in reasoning, the Roberts Court is sharply divided.

On one side is the four-justice moderate-liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. On the other is a hard-right gang of three—Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Roberts and Justice Anthony Kennedy are both very conservative, but unlike the other three, they don’t always insist on total triumph, and sometimes make common cause with the moderate liberals.

That’s what happened Thursday in two “unanimous” cases. Nine justices agreed on the result, but they split 5-4 on the reasoning. In both cases, the moderate side wrote the opinion of the Court because Roberts or Kennedy joined it. In both cases, four conservative justices wanted to radically change the law; in both cases, a five-justice majority opted for incremental change.

Voting rightsDeserved or not,  Jasper, Texas — population 7600 —  has become known to those living in other regions of the country as a hot bed of racist activity.

It was in Jasper in 1998 that three white men chained a black man, 49-year-old James Byrd, Jr., to the rear bumper of a pick-up truck and dragged his body along local roads for nearly three miles until his head and shoulder were severed from the rest of his body.

At least twice over the next few years, Byrd’s grave — located in the black section of a segregated cemetery — was desecrated.

It was in Jasper in 2011 that a group of white voters organized a recall of black city council members after the council had hired the city’s first black police chief.  Once new white council members were installed, they fired the chief.

Now Jasper is embroiled in a controversy of another racial sort — voting. Norm Ornstein describes the situation in this Atlantic piece:

In 1988, Jasper tried to annex several predominantly white areas into the city. Under the Voting Rights Act, the city needed preclearance, which the Justice Department denied because it would dilute black voting strength. The city was forced to move from all at-large elections to district ones as a precondition of getting the annexations approved. Now, with no fear of preclearance, the City Council is moving to annex three predominantly white neighborhoods, enabling the city to redraw the City Council lines to dilute any potential of electing black council members.

Ornstein highlights Jasper as a reminder that the Voting Rights Act still matters, but the town also is an example of oft-overlooked discriminatory efforts to restrict voting at the local level.

Over the years, while broad-based restrictive voting practices at the state and federal level drew headlines, discrimination happened far more often at the local level.

As the Brennan Center noted in its recent report on the impact of the Supreme Court’s elimination of Section 5 preclearance in its Shelby County decision:

Section 5’s loss will perhaps be felt most acutely at the local level. The great majority of voting law changes that were blocked as discriminatory under the Voting Rights Act were local: counties, municipalities, and other places that operate below the state level.

The Leadership Conference on Civil and Human Rights echoes that assessment in its recent report:

The vast majority of instances of racial discrimination since 2000 have occurred at the local level. They often concern the election city, county or other local elected officials, where many of the contests are nonpartisan.

The North Carolina experience bears that out. Here, from the Leadership Conference report, are a few examples of local discrimination thwarted by Section 5:

• Pitt County (2012) – Session Law 2011-174 reduced the number of school board members from 12 to seven, changed the method of election, and reduced the terms of office from six years to four years. The benchmark plan provided Black voters with the ability to elect candidates of their choice to two of 12 seats. The change in the number of school board members in conjunction with the method of election would have decreased minority-preferred officials on the school board from two of 12 to one of seven and was, therefore, found to be retrogressive.

• City of Kinston (2009) – The city proposed a change to nonpartisan elections, with a plurality-vote requirement. Although Black people comprise a majority of the city’s registered voters, in three of the four previous general municipal elections, African Americans comprised a minority of the electorate on Election Day and had had limited success in electing candidates of choice during recent municipal elections. The small amount of White crossover votes resulted from the party affiliation of Black-preferred candidates. DOJ analysis found that the elimination of party affiliation on the ballot would have likely reduced the ability of  Black voters to elect their candidates of choice. The objection was subsequently withdrawn based on new evidence.

• City of Fayetteville (2007) – The city proposed a change to the method of election from nine single-member districts to six single-member districts, with three other positions filled by the top three vote recipients in an at-large election. Under the existing system, African-American voters had elected candidates of their choice to four of the nine positions on the council in all instances. However, under the proposed plan, it was unlikely that African- American voters would have had a comparable ability to elect candidates of their choice to the same proportion of positions on the council.

• Harnett County and Harnett County School District (2002) – The redistricting plans for the Board of Commissioners and the Board of Education contained no district in which Black people were a majority in either total or voting age population. However, in the benchmark plan, Black people did constitute a majority in both total and voting age populations in one district. The county did not establish that this reduction would not have resulted in retrogression in the ability of minority voters to exercise their electoral franchise.

In what SCOTUSblog founder Tom Goldstein called “a sweeping endorsement of digital privacy,” the U.S. Supreme Court today unanimously ruled that police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

The direct issue in two cases before the court was whether police could search the contents of cellphones without a warrant under the established doctrine of “search incident to arrest.” That doctrine has been justified by courts over the years as necessary to remove weapons that might otherwise be used to harm officers and to seize documents or other types of evidence of a crime that might otherwise be quickly destroyed by the person under arrest.

Chief Justice John Roberts wrote the opinion for the court in Riley v. California.

Read the full case here.

Women's-healthThe U.S. Supreme Court yesterday blocked efforts by Wisconsin’s Attorney General to reinstate a state law requiring that abortion providers have admitting privileges at nearby hospitals.

That provision was one of several restrictive measures hastily passed by the Wisconsin legislature in 2013. In the lawsuit that followed in federal court there, U.S. District Judge William Conley enjoined enforcement of the provision and the 7th U.S. Circuit Court of Appeals affirmed. 

Until a final resolution of the case, the requirement of admitting privileges remains unenforceable.

During the trial in the lower court, which concluded May 30, doctors argued that obtaining admitting privileges was a difficult if not impossible task, according to this report:

Doctors providing services submitted letters from hospitals rejecting their requests for admitting privileges mostly because they wouldn’t admit the number of patients required.  Hospitals normally require physicians with admitting privileges to admit a certain number of patients each year and with complications of abortions being rare, those minimum admission rates would never be met by doctors performing abortion.

The law requiring hospital admitting privileges only applies to abortion providers.  Those providing outpatient surgery, oral surgery, or other outpatient procedures are not required to have admitting privileges.

As in Wisconsin, the admitting privileges requirement was one of several abortion restrictions proposed here early in the 2013 long session but dropped from the bill ultimately signed into law, pending the adoption of regulations by the Department of Health and Human Services. That process is ongoing.

The case is Van Hollen v. Planned Parenthood of Wisconsin, 13-1127.