SUPREME COURT NOTEBOOK

 

Equal Pay Act case declined

WASHINGTON (AP) — The Supreme Court is leaving in place a decision that employers can’t use past salary history to justify a pay disparity between male and female employees.

The court last Thursday declined to take up a case from the California-based U.S. Court of Appeals for the Ninth Circuit. Judges there said the federal Equal Pay Act, which generally requires men and women to be paid equally for the same work, doesn’t allow past salary history to be used as justification for a pay disparity. As is usual, the justices did not explain their decision declining to take the case.

The case the justices turned away involved a Fresno County public school math consultant who sued after learning she made less than male colleagues. Aileen Rizo challenged the school system’s policy that based all new employees’ salaries on their prior salaries. The school system argued the policy didn’t favor men or women. California law has since changed so that employers can’t use a person’s salary history in determining their starting salary. A total of 18 states bar employers from using prior salary information to set a new salary.

The case had been to the Supreme Court once before. The justices sent it back to the Ninth Circuit last year for review because a decision in the case had been written by Appeals Court Judge Stephen Reinhardt but was released 11 days after his death on March 29, 2018.

The justices said in an unsigned opinion at the time that judges can’t rule from beyond the grave. “Federal judges are appointed for life, not for eternity,” the opinion said.

After a new judge was appointed to replace Reinhardt, the Ninth Circuit issued a new majority opinion that reached the same result.


 

Supreme Court won’t hear condemned Tennessee inmate’s case
 


MEMPHIS, Tenn. (AP) — The U.S. Supreme Court last Thursday declined to hear the case of a Tennessee death row inmate who claims he should not be executed because he is intellectually disabled.

In a petition filed in January, lawyers for David Keen said tests from 2008 and 2010 prove Keen’s intellectual disability. However, there is no procedural mechanism in Tennessee to reopen Keen’s case and present the evidence to a court, they argued.

Attorneys for the state opposed Keen’s petition. They pointed to a resentencing hearing in 1997 where Keen presented evidence that included a much higher IQ than the later tests.

Keen was sentenced to death for the 1990 rape and murder of 8-year-old Ashley Nicole Reed in Shelby County.

The Supreme Court has previously ruled that executing the intellectually disabled violates the Eighth Amendment’s prohibition on cruel and unusual punishment.


 

Justices keep hold on secret Russia investigation material


By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court is denying Congress access to secret grand jury testimony from special counsel Robert Mueller’s Russia investigation through the November election.

The justices agreed last Thursday to hear the Trump administration’s appeal of a lower court order for the material to be turned over to the Democratic-controlled House of Representatives. The high court’s action will keep the documents out of congressional hands at least until the case is resolved, which is not likely to happen before 2021.

Arguments themselves might not even take place before Americans decide whether to give President Donald Trump a second term.

The delay is a victory for Trump, who also is mounting a Supreme Court fight against congressional efforts to obtain his banking and other financial records. Those cases are expected to be decided in the coming days or weeks.

The court’s action also could mean the justices never have to reach a definitive ruling in a sensitive dispute between the executive and legislative branches of government, if either Trump loses reelection or Republicans regain control of the House next year. It’s hard to imagine an administration of Democrat Joe Biden would object to turning over the Mueller documents or House Republicans would continue to press for them.

The House wants previously undisclosed details from the investigation of Russian interference in the 2016 election.

Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Committee, called the court’s decision disappointing.

“Unfortunately, President Trump and Attorney General (William) Barr are continuing to try to run out the clock on any and all accountability. While I am confident their legal arguments will fail, it is now all the more important for the American people to hold the President accountable at the ballot box in November,” Nadler said in a statement.

The federal appeals court in Washington ruled in March that the documents should be turned over because the House Judiciary Committee’s need for the material in its investigation of Trump outweighed the Justice Department’s interests in keeping the testimony secret.

Mueller’s 448-page report, issued in April 2019, “stopped short” of reaching conclusions about Trump’s conduct, including whether he obstructed justice, to avoid stepping on the House’s impeachment power, the appeals court said.

The committee was able to persuasively argue that it needed access to the underlying grand jury material to make its own determinations about the president’s actions, the court said.

The materials initially were sought last summer, but by the time the appeals court ruled in March, Trump had been impeached by the House and acquitted by the Senate.

The Justice Department said in its Supreme Court filings that the court’s action was needed in part because the House hasn’t given any indication it “urgently needs these materials for any ongoing impeachment investigation.”

The House had opposed the delay on the grounds that its investigation of Trump was continuing and that time is of the essence because of the approaching election. The current session of the House will end Jan. 3, and lawmakers elected in November will take their seats.

Democrats have suggested that the grand jury materials could reveal new misconduct that could potentially form the basis of new articles of impeachment, but such a course would have been unlikely so close to the 2020 election even if the court had allowed the material to be turned over immediately.

The House impeached Trump for his efforts to get Ukraine to announce an investigation of Biden, but the Republican-controlled Senate acquitted the president in February.

It is also unclear how many new, or incendiary, revelations might be contained in the grand jury transcripts. Mueller’s report, though redacted in parts, revealed more than a year ago significant information about the president’s efforts to choke off the investigation and raised substantial questions about whether he had committed obstruction of justice.

Besides, many of the witnesses closest to Trump appeared voluntarily before Mueller’s team of prosecutors, and the Justice Department in recent months has released written — albeit redacted — summaries of those interviews. That means the public already has insight into the accounts of key Trump associates, including son-in-law Jared Kushner and advisers like Steve Bannon and Hope Hicks.
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Associated Press writer Eric Tucker contributed to this report.

 

High court won’t hear abortion clinic ‘buffer zone’ cases

By Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court last Thursday turned away pleas from anti-abortion activists to make it easier for them to protest outside clinics, declining to wade back into the abortion debate just days after striking down a Louisiana law regulating abortion clinics.

The justices said in a written order that they would not hear cases from Chicago and Harrisburg, Pennsylvania, where anti-abortion activists had challenged ordinances that restrict their behavior outside clinics.

As is usual, the justices did not comment in turning away the cases. The order from the court noted Justice Clarence Thomas would have heard the Chicago case.

The Supreme Court has since the late 1990s heard several cases involving demonstration-free zones, called buffer zones, outside abortion clinics. Most recently, in 2014, the justices unanimously struck down  a law that created a 35-foot protest-free zone outside Massachusetts abortion clinics. The court said Massachusetts’ law, which made it a crime to stand in the protest-free zone for most people not entering or exiting the clinic or passing by, was an unconstitutional restraint on the free-speech rights of protesters.

Last Thursday, one of the two cases the court declined to take up involved an ordinance passed by the city counsel in Harrisburg, Pennsylvania’s capital, in 2012 that made it illegal to “congregate, patrol, picket or demonstrate” in a zone 20 feet from a health care facility. Anti-abortion activists sued, arguing that the ordinance violates their free speech rights. Lower courts have upheld the ordinance, however, ruling it doesn’t apply to “sidewalk counseling,” where individuals who oppose abortion offer assistance and information about alternatives to abortion to those entering a clinic.

The second case the court turned away last Thursday involved a Chicago ordinance that regulates the space 50 feet from the entrance of any abortion clinic or other medical facility. In that space, a person cannot come within 8 feet of another person without their consent to hand them information or engage in “oral protest, education, or counseling.” The ordinance was modeled on a statute upheld by the Supreme Court in 2000.

Anti-abortion activists told the Supreme Court that Chicago’s ordinance violates their free speech rights and that the high court’s decision from 2000 should be reconsidered. A trial court previously dismissed the lawsuit  and an appeals court upheld that decision.

The court’s announcement that it would not hear the cases comes on the heels of its decision last Monday that a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals violates abortion rights the court first announced in the landmark Roe v. Wade decision in 1973. The decision divided the court’s conservatives and liberals 5-4 with Chief Justice John Roberts joining his four more liberal colleagues to strike down the law.

It was the first big abortion case of the Trump era and a surprising defeat for abortion opponents, who thought that the court’s new conservative majority with two members appointed by President Donald Trump would start chipping away at abortion access.

As a result of the decision, the justices also last Thursday ordered lower courts to revisit cases involving Indiana abortion laws previously blocked by courts. One required a woman to have an ultrasound 18 hours before having an abortion and the other would have made it tougher for girls under age 18 to get an abortion without their parents’ knowledge.

In their decision earlier last week, the justices told lower courts how to determine whether a restriction is permissible or puts an unconstitutional obstacle in the way of women who want an abortion.




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