Tuesday round-up

Yesterday evening, the court, by a vote of 5-4 along ideological lines, granted a request by the Republican National Committee and the Republican Party of Wisconsin to block a lower court order extending the deadline for mailing absentee ballots in Wisconsin’s primary election today. In a post for this blog that first appeared at Howe on the Court, Amy Howe reports that the opinion “by a sharply divided court means that in-person voting will go on [today] as scheduled; absentee ballots will be counted as long as they are either received or postmarked by [today].” Richard Wolf reports for USA Today that the ruling “gave a boost to Republicans, both in Wisconsin and nationally, who have argued the coronavirus pandemic doesn’t call for increased use of voting by mail this year, including in November.” Jess Bravin reports for The Wall Street Journal (subscription required) that “[t]he high court’s action came shortly after the Wisconsin Supreme Court invalidated an executive order by Gov. Tony Evers rescheduling the election to June 9.[:] Both cases saw all conservative justices side with Republicans who were seeking to maintain voting on Tuesday, while all liberal justices agreed with Democratic arguments to extend balloting in response to the contagion.” At The Washington Free Beacon, Kevin Daley reports that “[t]he sharp disagreement suggests the justices could struggle to maintain consensus as they navigate pointed pandemic issues on an accelerated basis.”

At the Election Law Blog, Rick Hasen warns that “it is a very bad sign for November that the Court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes.” At Balkinization, Marty Lederman unpacks the opinion, concluding that “the Supreme Court just stayed a provision of a district court preliminary injunction that does not exist, and in so doing imposed a restraint on the franchise of Wisconsin voters that Wisconsin law itself doesn’t require.”

Yesterday the court also released two decisions. In Babb v. Wilkie, the court held 8-1 that the Age Discrimination in Employment Act does not require federal employees to prove that age discrimination was the but-for cause of an adverse personnel decision, but some forms of relief may not be available without such proof. Adam Liptak reports for The New York Times that the ruling means “that federal workers can win age discrimination suits under a more relaxed standard than employees in the private sector,” but “even federal workers must satisfy the stricter standard to obtain many forms of relief, including reinstatement and back pay.” At NPR, Nina Totenberg reports that the “ruling rejected a Trump administration position that sought to dramatically limit the legal recourse available to federal workers.” At Understanding the ADA, William Goren writes that “[i]n light of this case, you can expect every single ADA case to litigate causation, especially because the majority opinion equates ‘based on’ with but for causation.”

In yesterday’s second case, Kansas v. Glover, another 8-1 decision, the court held that in an investigative stop under the Fourth Amendment, it is reasonable for police office to suspect that the registered owner of a car is the driver, absent evidence to the contrary. Jess Bravin reports for The Wall Street Journal (subscription required) that “the court upheld a Kansas traffic stop that was based only on the fact that the vehicle owner’s license had been revoked.” At Subscript Law, Mariam Marshedi provides a graphic explainer for the decision. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.]

Earlier yesterday, the justices released orders from last week’s conference, adding no new cases to their docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At The Hill, Harper Neidig reports that “[t]he Supreme Court on Monday said it would not take up the Catholic church’s challenge to the Washington, D.C., transit authority’s policy banning religious ads, allowing the policy to remain in place.” At Education Week’s School Law Blog (subscription or registration required), Mark Walsh reports that Justice Neil Gorsuch’s statement respecting the denial, which indicated that the case was a “poor candidate” for review because Justice Brett Kavanaugh was recused, “left little doubt about how important he thought the issue was and where he would likely fall.”

Briefly:

• The latest episode of Strict Scrutiny (podcast) covers some of the court’s recent opinions.
• In an op-ed for The Chicago Daily Law Bulletin, Daniel Cotter predicts that “[o]ne issue the court might hear next term is a First Amendment challenge to mandatory bar membership.”

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