Justices add three new hours of argument to calendar

This afternoon the Supreme Court issued orders from the justices’ private conference earlier today. The justices granted six new cases – three pairs of consolidated cases – for a total of three additional hours of argument.

With the announcement that they have agreed to review Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania, the justices will return to the battle over the Affordable Care Act’s birth-control mandate, which generally requires employers to provide their female employees with health insurance that includes access to certain forms of birth control. In 2013, the federal government exempted churches and other religious institutions from having to comply with the rule, and it provided an “opt-out” process to accommodate religious nonprofits that objected to having to comply with the mandate. In 2016, the Supreme Court heard oral argument in a challenge by religious nonprofits to the mandate and the accommodation process, but after the death of Justice Antonin Scalia the court sent the cases back to the lower courts with instructions for the federal government and the challengers to try to work out a solution that would allow female employees to receive full contraceptive coverage while still respecting the employers’ religious beliefs.

The cases that the justices agreed to hear today arose after the federal government – now under President Donald Trump – issued new rules in 2017 that expanded the exemption from the mandate and allowed private employers with religious or moral objections to the mandate to opt out of providing coverage for their employees without any notice. Pennsylvania and New Jersey went to court to block the new rules, arguing that they violated the Affordable Care Act and the federal laws governing administrative agencies. The U.S. Court of Appeals for the 3rd Circuit upheld a district court ruling that barred the government from enforcing the rules nationwide, and both the federal government and the Little Sisters of the Poor, a Catholic religious group that works with the elderly, asked the justices to review that ruling. The justices agreed to weigh in on the expansion of the exemption, as well as the Little Sisters’ legal right to appeal the lower court’s decision invalidating the rule and whether the 3rd Circuit should have upheld the nationwide injunction.

In Chiafolo v. Washington and Colorado Department of State v. Baca, the justices will consider the constitutionality of “faithless elector” laws, which require presidential electors to vote the way state law directs. The petitioner in the Washington case, Peter Chiafolo, was elected as a presidential elector when Hillary Clinton won that state’s popular vote in 2016 but voted for Colin Powell instead, which led to a $1,000 fine for violating a state law that required him to vote for the presidential and vice-presidential candidates who won the majority of the popular votes. The respondent in the Colorado case, Micheal Baca, was removed as an elector after he attempted to vote for John Kasich, even though Clinton won the popular vote in Colorado as well. Chiafolo told the justices that the question has real-world importance in the run-up to the 2020 presidential election: In 2016, he noted, “ten of the 538 presidential electors either cast presidential votes other than the nominees of their party” or tried to do so but were replaced. A similar swing would “have changed the results in five of fifty-eight prior elections,” he added.

The justices also granted a pair of petitions involving personal jurisdiction – a court’s power over the defendant being sued. Under the Constitution’s due process clause, a state court has personal jurisdiction over a defendant only when the plaintiff’s claims “arise out of or relate to” the defendant’s activities in the state. In Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer, the justices will decide whether this requirement is met when the defendant’s contacts with the state did not cause the plaintiff’s claims. The issue comes to the court in lawsuits filed against Ford Motor Co. in Minnesota and Montana alleging problems in the company’s cars. In both cases, Ford countered that the court lacked jurisdiction over it because the car was manufactured and originally sold outside the state; Ford was not responsible for the car’s presence there. The state courts allowed the cases to go forward, but now the Supreme Court will have the final say.

The justices also asked for additional briefing in Babb v. Wilkie, a case involving federal employees and the Age Discrimination in Employment Act that was argued on Wednesday. The court directed the government and the employee to discuss what other relief, besides the ADEA, might be available to the employee, in 10-page briefs due next week.

The justices did not act on several other high-profile petitions that they considered at today’s conference, including a challenge by Catholic Social Services to its exclusion from Philadelphia’s foster-care system because of the agency’s views on same-sex marriage, the request by a Washington state florist who is a devout Christian for the court to weigh in on whether she can be required to provide custom floral arrangements for a same-sex wedding, and the clash between California and the federal government over California laws intended to shield immigrants from federal immigration enforcement. The justices are expected to issue more orders from today’s conference on Tuesday, January 21, at 9:30 a.m.

This post was originally published at Howe on the Court.