Supreme Court

Kevin Daley | Supreme Court Reporter

Justice Brett Kavanaugh has joined the faculty of George Mason University’s Antonin Scalia Law School, where he will co-teach a summer course in the United Kingdom on the origins of the Constitution.

Kavanaugh, who has evaded public attention following his bitter confirmation in October 2018, will remain in England for nearly six weeks while the Court is on its summer recess. The justice has generally kept a low profile since joining the Court, avoiding solo public appearances and divisive opinion writing.

“It is a rare opportunity for students to learn from a Supreme Court justice and we believe that contributes to making our law program uniquely valuable for our students,” the law school said in a statement.

George Mason University’s student newspaper was first to report that Kavanaugh joined the law faculty.

It is common for the justices to teach law abroad during the summer, when the high court is not in session. Justices Ruth Bader Ginsburg and Neil Gorsuch led seminars in Italy in July 2018, while retired Justice Anthony Kennedy taught in Austria.

Yet Kavanaugh’s 38-day course is unusually long in comparison to his colleagues, whose teaching commitments generally run a few short days. Ginsburg and Gorsuch’s Italian jaunt ran about two weeks, while Kennedy’s lasted about three.

Another round of skirmishes relating to Kavanaugh’s confirmation are likely this summer, which may be a factor in his lengthy retreat to the UK. Politico’s Anna Palmer and Jake Sherman will publish an account of Congress during President Donald Trump’s tenure in April, which purports to contain the definitive story on his confirmation. Another book called “Confirmation Bias” will follow in June from Carl Hulse of The New York Times.

Kavanaugh defenders Mollie Hemingway and Carrie Severino will publish their own book-length treatment of his nomination this summer, which is meant to preempt forthcoming projects thought to be unflattering, according to Axios. (RELATED: Supreme Court Deals Trump Administration Immigration Victory)

Ruth Marcus, The Washington Post’s deputy editorial page editor and Jackie Calmes of the Los Angeles Times are also writing books on the Kavanaugh confirmation. Kate Kelly and Robin Pogrebin of The New York Times will publish a history of the justice’s early years this October called “The Education of Brett Kavanaugh.”

Justice Brett Kavanaugh attends his ceremonial swearing at the White House on October 8, 2018. (Chip Somodevilla/Getty Images)

Justice Brett Kavanaugh attends his ceremonial swearing at the White House on October 8, 2018. (Chip Somodevilla/Getty Images)

Once a staple of law school programming, Kavanaugh lamented that he might never return to academia, after three women publicly accused him of sexual misconduct. He denied those allegations.

“I love teaching law,” Kavanaugh told Senate Judiciary Committee Democrats during his second confirmation hearing in September 2018. “But thanks to what some of you on this side of the committee have unleashed, I may never be able to teach again.”

Just days after that hearing, Harvard Law School announced it had cancelled Kavanaugh’s January-term course on the modern Supreme Court. The announcement followed weeks on intense pressure from students and alumni, who hoped the law school would disassociate itself with the beleaguered Supreme Court nominee. Kavanaugh was named the Samuel Williston Lecturer on Law at Harvard in 2009.

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Virginia Kruta | Associate Editor

Democratic 2020 presidential hopefuls have so far proposed or signaled willingness to discuss at least four major policy ideas that would require the U.S. Constitution to be amended.

  • Lowering the voting age to 16
  • Introducing term limits for Supreme Court justices
  • Dissolving the Electoral College and adopting a National Popular Vote
  • Reintroducing the Equal Rights Amendment

As more and more Democrats enter the rapidly expanding field, each vying for the chance to challenge President Donald Trump’s re-election bid, it is becoming apparent that most of them are looking for ways to change the status quo — even if that means changing the Constitution as well.

Lowering the voting age to 16.

In order for the voting age to be lowered to 16, Congress would have to pass an amendment to an amendment. The 26th Amendment, ratified in 1971, lowered the national voting age from 21 to 18. A new amendment would have to be ratified that would supersede the 26th.

Democratic Sens. Kamala Harris, Cory Booker and Amy Klobuchar have not given this particular policy their full-throated endorsement, but all three have said that they are at least willing to have the conversation. (RELATED: Nancy Pelosi Says She Personally Supports Lowering The Voting Age To 16)

Introducing term limits for Supreme Court justices.

Article III, Section I of the Constitution states that, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour …” Unless they are impeached, judicial appointments are for life or until the appointee retires.

But Democratic New Jersey Sen. Cory Booker has suggested that Supreme Court justices should be subject to term limits and that every president should have the opportunity to make three high court appointments during his or her term in office.

Several Democratic candidates, including former Texas Rep. Beto O’Rourke, South Bend Mayor Pete Buttigieg, Sen. Elizabeth Warren, Sen. Kamala Harris and Sen. Kirsten Gillibrand, have said that they were open to changes on the court. Buttigieg and O’Rourke have voiced support for a new court with 15 justices — five chosen by Democrats, five chosen by Republicans and five chosen by unanimous approval of the other 10 justices.

Dissolving the Electoral College and adopting a National Popular Vote

In order to replace the Electoral College with a National Popular Vote, which would allow the president to be elected directly by the people, an amendment superseding Article II, Section I (clauses 2 and 3), as well as the 12th Amendment, would be necessary.

Democrats have been calling for a move to a popular vote, arguing that it’s the only way to make sure that “every vote counts.” A number of states have already attempted to side-step the Electoral College by opting to give all of their electoral votes to the winner of the nationwide popular vote. Renewed calls came from many in the party after the 2016 presidential election, when former Secretary of State Hillary Clinton won the popular vote, but lost the Electoral College.

Independent Vermont Sen. Bernie Sanders, who is also seeking the Democratic nomination, called for the change almost immediately following Clinton’s 2016 loss.

Warren planted her flag on this particular issue during a Monday town hall in Mississippi, saying, “Every vote matters.”

O’Rourke and Buttigieg — along with former HUD Secretary Julian Castro — have also voiced support for a move to the popular vote. “We ought to actually be a place where the person who gets the most votes for president gets to win the election,” Buttigieg explained.

Reintroducing the Equal Rights Amendment

The Equal Rights Amendment states that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Proponents argue that it would make it easier to enforce equal pay laws, protect access to abortion and help to protect women from harassment.

The ERA has been around for decades without ever getting enough states on board to ratify it. Ratification of this amendment would be a priority for Harris.

The 2020 primary is just getting underway and at least a few more candidates are expected to declare their intentions in the coming weeks, so this may just be the tip of the iceberg with regard to radical policy proposals and possible changes to the Constitution.

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Kevin Daley | Supreme Court Reporter

  • Curtis Flowers, a death row inmate, has been tried six times in connection with a brutal quadruple homicide in Mississippi. 
  • Each trial has ended in either a hung jury or a conviction reversed on appeal due to prosecutorial misconduct.
  • The Supreme Court will decide what evidence Flowers can use to argue the prosecution skewed a jury along racial lines to help secure his latest conviction. 

The Supreme Court seemed poised Wednesday to side with a black death row inmate who believes the prosecution rigged the jury for his murder trial on the basis of race.

The question before the justices asks whether a judge can consider past practices or misconduct when deciding if a prosecutor is removing prospective jurors on the basis of race.

Novelist Harper Lee may as well have written the story of Curtis Flowers, the defendant in Wednesday’s case. Flowers is a black man who has been tried six times in a Mississippi court in connection with a quadruple homicide by the same white prosecutor, Doug Evans. Two of those cases resulted in a mistrial due to deadlocked juries. Flowers was found guilty in the other three, but appeals courts lifted those convictions because of misconduct on Evans’s part.

The sixth and most recent trial, which ended with a conviction, is the matter currently before the high court.

When seating a jury for trials, both the prosecution and the defense can use so-called peremptory strikes to exclude a prospective juror for almost any reason at all. The Supreme Court said peremptory strikes could not be used on account of race in a 1986 decision called Batson v. Kentucky. The decision followed the long, unfortunate history of prosecutors seating all-white juries in cases with black defendants.

It is often difficult to prove a Batson violation, however — though lawyers can bring a “Batson challenge” if they believe the other side is striking jurors for racial reasons, the other side will prevail if they can give a valid, race-neutral reason for excluding the jurors at issue.

In Flowers’s sixth trial, Evans used his strikes to boot five of the six potential black jurors. One of the six was seated, and Evans cited legitimate reasons for excluding the other five.

Yet Flowers argues there is still racial chicanery afoot. Among other things, Flowers points out that Evans used strikes to dismiss 41 of the 42 black people eligible for jury service over the course of the trials. Flowers says that history is highly salient to showing racial bias in his most recent trial.

The Supreme Court seemed largely united in its sympathy for Flowers and in the feeling that Evans’s prior conduct was relevant.

“We can’t take the history out of the case,” Justice Brett Kavanaugh said.

Kavanaugh elsewhere said that Batson meant to bolster confidence in the integrity of juries and suggested the community’s trust was broken by the Flowers saga.

“Can you say, as you sit here today, you have confidence in how this all transpired in this case?” he asked a lawyer for the state of Mississippi. (RELATED: Supreme Court Deals Trump An Immigration Victory)

Prosecutors sometimes conduct brief investigations of potential jurors to discover possible conflicts of interest or other facts relevant to a person’s ability to serve on the panel. Justice Elena Kagan noted that Evans pursued three such investigations in the Flowers case. All three subjects were black.

Sheri Lynn Johnson of the Cornell University Death Penalty Project, who represents Curtis Flowers, speaks to the news media outside of the Supreme Court on March 20, 2019. REUTERS/Leah Millis

Sheri Lynn Johnson of the Cornell University Death Penalty Project, who represents Curtis Flowers, speaks to the news media outside of the Supreme Court on March 20, 2019. REUTERS/Leah Millis

Other justices asked at length about the particulars of specific jurors, aiming to show that Evans repeatedly seated white jurors with conflicts of interest much like those for which black people were excluded.

Yet several of the justices wondered how much judges should rely on past wrongdoing should bear in a Batson challenge.

“If the prosecutor had one Batson violation in his 30-year career, 20 years ago, is that something that should be pertinent in the assessment of current Batson challenges?” Chief Justice John Roberts asked Sheri Lynn Johnson, who represented Flowers at the high court.

Justice Neil Gorsuch wondered if Evans’s history alone could establish a Batson violation in Flowers’s case, absent other factors.

Justice Clarence Thomas, the court’s lone black person, stunned observers with a question late in the proceedings. Thomas has asked questions during oral arguments just twice in the last decade, given his belief that the court should ask fewer questions of the advocates.

Thomas wondered if the defense had exercised any peremptory strikes of its own. Johnson conceded they had.

“And what was the race of the jurors struck there?” Thomas asked.

“She only exercised peremptories against white jurors,” Johnson replied. “But I would add that her motivation is not the question here. The question is the motivation of Doug Evans.”

A decision in the case, Flowers v. Mississippi, is expected by June.

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Derek Hunter | Contributor

On the show today we get into the Democratic Party’s push to abolish the Electoral College, the U.S. Senate, and the court system. When they can’t win they push to change the rules.

Listen to the show:

Nearly every candidate running for the Democratic nomination is advocating for the disenfranchising of “red America,” the massive area between the coasts that generally votes for Republicans. They want to abolish the Electoral College, which was created to make sure any candidate for president could appeal to as much of the country as possible and not just a few population centers. The needs of people in New York or Los Angeles are significantly different than the needs of people in Nebraska. The Electoral College requires candidates to have to try to connect with both groups. Since Democrats hold so much of the non-costal population centers in contempt, it’s rather difficult for them to do that.

Instead of trying, it’s easier for Democrats to ignore rural America, to ignore “flyover country” and focus on their base. But the Electoral College exists for a reason — the states created the federal government, the federal government did not create the states. States have rights, and they should matter in selecting the leader of the country. That Democrats want to strip that power tells you something about them, and we discuss it.

They’re also seeking to change the Senate, advocating for proportional representation in the upper chamber. That would turn it into another House, which would empower Democrats because they control populous states like New York and California, but it would undermine the reason for the body’s existence. Same with packing the courts. None of this is good if you’re at all interested in the concept of individual liberty.

Beto O’Rourke has a bizarre, childish sense of humor, regularly “pranking” his wife. One prank was particularly gross, and it involved baby poop.

You probably haven’t heard of Andrew Yang, but he’s gaining traction running for president as a Democrat. While Beto has no policy proposals on his website, Yang has dozens — everything from a universal basic income to what to do with vacant shopping malls. We get into some of it.

All this and the line-up for the 50th anniversary festival at Woodstock — and boy does it suck — on the show today.

Please help spread the word about The Daily Daily Caller Podcast. Please take a minute to rate and review on iTunes, share on social media and be sure to subscribe so you never miss an episode:

The Daily Daily Caller Podcast is a daily look and mocking of the news from a conservative perspective. Hosted by Derek Hunter, it is available in audio form Monday-Thursday and will have a video option on Fridays.

Derek Hunter is a columnist and contributing editor for The Daily Caller and author of “Outrage, INC: How the Liberal Mob Ruined Science, Journalism, and Hollywood” from HarperCollins, available nowPick Up a copy, or several copies, here. Send compliments and complaints to [email protected] or follow him on Twitter at @derekahunter.

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Saagar Enjeti | White House Correspondent

President Donald Trump blasted the increasingly popular idea among Democratic presidential candidates of adding seats to the Supreme Court, during a Tuesday afternoon press conference in the Rose Garden.

“I wouldn’t entertain that,” Trump noted. “The only reason they are doing that, they want to catch up. So if they can’t catch up through the ballot box winning an election, they want to try a different way. No interest in it whatsoever,” he said, adding, “It won’t happen, I guarantee you, for six years.”

Presidential candidates Kamala Harris, Elizabeth Warren, Beto O’Rourke, Pete Buttigieg and Kirsten Gillibrand have all noted their willingness to consider a proposal that would add seats to the Supreme Court.

“We are on the verge of a crisis of confidence in the Supreme Court,” Harris said in a recent interview. “We have to take this challenge head-on, and everything is on the table to do that.” O’Rourke similarly said that packing the court is “an idea that we should explore.” (RELATED: Court-Packing Emerges As Litmus Test In 2020) 

Buttigieg said of court packing, “I don’t think we should be laughing at it. Because in some ways it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”

The growing calls have brought widespread condemnation from Republican politicians, including Florida Sen. Marco Rubio, who introduced a constitutional amendment Tuesday afternoon to keep the number of seats on the court at nine.

The Trump campaign recently told the The Daily Caller News Foundation, “This is just what the Democrats always do. When they lose, they try to change the rules. This is no different from when they attack the Electoral College every time they lose the White House. Now it’s court-packing. They want to change our institutions to fit their own political desires.”

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Kevin Daley | Supreme Court Reporter

  • A deeply divided Supreme Court ruled that immigration authorities can detain noncitizens for possible deportation long after they serve prison sentences for criminal convictions.
  • The ACLU had argued that federal law imposes a strict time limit on when government officials can detain aliens for deportation after they are released from jail.
  • Thousands of noncitizens could be affected by Tuesday’s ruling.

The Supreme Court sided with the Trump administration Tuesday in a dispute over the federal government’s power to arrest certain noncitizens who commit crimes and hold them in immigration jails before a deportation proceeding.

The five to four decision was met with a vigorous dissent from the Court’s liberal bloc led by Justice Stephen Breyer, who said the majority was enabling the detention and possible deportation of foreign nationals for minor crimes they committed in the distant past.

Tuesday’s case arose when green card holders Mony Preap and Bassam Yusuf Khoury were arrested by federal immigration authorities years after they served criminal sentences for drug convictions. Preap and Khoury were detained without bail pending deportation.

A five-justice majority said aliens facing deportation may be held in immigration jails without bond hearings in February 2018.

Preap and Khoury challenged their detention in federal court with two classes of similarly situated migrants. Arguing on their behalf, the American Civil Liberties Union (ACLU) said the government can only detain noncitizens with criminal records within 24 hours of their release from prison. A provision of federal law directs the secretary of Homeland Security to arrest criminal aliens “when the alien is released.”

The 9th U.S. Circuit Court of Appeals agreed with the ACLU and ruled for the plaintiffs. The Court’s conservative majority reversed that decision in Tuesday’s ruling, finding federal law requires the detention of certain classes of aliens before removal.

“As we have held time and again, an official’s crucial duties are better carried out late than never,” Justice Samuel Alito wrote for the majority.

The majority connected Tuesday’s case to the ongoing dispute over sanctuary jurisdictions, which refuse to cooperate with federal immigration authorities. Alito said it is difficult for federal officials to discover when noncitizens will be released from prison, since certain states and localities will not provide that information.

“Under these circumstances, it is hard to believe that Congress made the secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release,” the opinion reads.

Alito elsewhere said the “when…released” language simply establishes when the federal government’s detention duty is triggered while “exhorting the secretary to act quickly.”

A common area and cell room doors are seen inside ICE's Caroline Detention Facility in Bowling Green, Virginia, on August 13, 2018. (Saul Loeb/AFP/Getty Images)

A common area and cell room doors are seen inside ICE’s Caroline Detention Facility in Bowling Green, Virginia, on August 13, 2018. (Saul Loeb/AFP/Getty Images)

The decision was limited in one respect — Alito cautioned that certain noncitizens who are detained long after serving their jail sentences may bring “as applied” constitutional challenges to their arrest by immigration authorities.

The ACLU coupled Tuesday’s decision with the February 2018 ruling on bond hearings, and accused the Court of embracing an extreme view of immigration detention laws.

“For two terms in a row now, the Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge,” said deputy director Cecillia Wang, who argued Tuesday’s case before the justices. “We will continue to fight the gross overuse of detention in the immigration system.”

In dissent, Breyer feared that the decision will result in extended detention for criminal aliens who will eventually be released from federal custody because they have some exemption from deportation.

“For a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of removal,” Breyer wrote. “These are not mere hypotheticals.”

That outcome, and other potentially prompted by Tuesday’s decision disregard the “basic promises that America’s legal system has long made to all persons,” Breyer charged.

Breyer read his dissent from the bench Tuesday, a seldom-used procedure meant to signal strong disagreement with the majority.

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Kevin Daley | Supreme Court Reporter

  • Five Democratic presidential candidates are contemplating proposals to expand the Supreme Court. 
  • The push to “pack the courts” follows a concerted Republican effort to install judicial conservatives at every level of the federal judiciary.
  • The threat of court expansion could itself deter the Supreme Court’s conservatives from moving the law sharply in new directions.

A growing number of Democratic presidential candidates are entertaining a push to add seats to the Supreme Court, as Republican success at filling the courts with judicial conservatives has infuriated progressive voters.

Democratic presidential candidates Kamala Harris, Elizabeth Warren, Robert “Beto” O’Rourke, Pete Buttigieg, and Kirsten Gillibrand have expressed willingness to consider proposals for expanding the composition of the Supreme Court as of this writing.

The Trump campaign charged that those suggestions, called court-packing, keeps with other structural reforms to the U.S. political system some Democrats have endorsed since the 2016 election.

“This is just what the Democrats always do,” the Trump campaign told TheDCNF. “When they lose, they try to change the rules. This is no different from when they attack the Electoral College every time they lose the White House. Now it’s court-packing. They want to change our institutions to fit their own political desires.”

Another presidential candidate, Democratic Sen. Cory Booker of New Jersey, advanced a more modest proposition. Speaking Monday night on MSNBC, the senator said term limits for Supreme Court justices might be appropriate, but he seemed reluctant to endorse expansion of the Court.

Democrats frame the issue as a credibility problem. By their telling, the campaign began when Senate Majority Leader Mitch McConnell refused to fill the vacancy occasioned by Justice Antonin Scalia’s death until after the 2016 election, and continued apace with the abolition of the filibuster for high court nominees.

“We are on the verge of a crisis of confidence in the Supreme Court,” Harris told Politico. “We have to take this challenge head on, and everything is on the table to do that.”

O’Rourke struck a similar note Friday at a Burlington, Iowa coffee shop, telling onlookers that an expanded Court is “an idea that we should explore” to curb partisanship and political dysfunction. The former El Paso congressman floated a proposal to add six justices to the high court. Under that system, Democrats and Republicans would each appoint five justices. Those 10 would then unanimously select the remaining five.

Other procedural changes for lower court nominations have inflamed Democratic anger, such that packing the courts — once thought radical — is now a viable political position.

“The GOP has also undermined virtually all of the customs that protected the minority and home state senators in the judicial selection process, such as White House consultation and blue slips, while ramming through circuit nominees with little process,” Carl Tobias, a law professor at the University of Richmond, told The Daily Caller News Foundation.

After President Donald Trump took office, the Republican-controlled Senate Judiciary Committee began holding confirmation hearings in which multiple circuit court nominees appear for testimony. Democrats say that’s a break with historical practice. (RELATED: Is Chief Justice John Roberts Tacking Left?)

The committee has also effectively abandoned the minority party’s blue slip veto for appeals court nominations, which allows senators to block nominees tapped for judgeships in their state. Republicans say the blue slip process has not been consistently observed for circuit court confirmations and makes little sense for appellate nominees.

Interest in court-packing has also waxed due to a sustained interest group campaign. Career Democratic operatives, attempting to put liberal interest in the judiciary at parity with conservatives, founded a dark money political group that is urging Democratic candidates to endorse court-expansion ideas.

A Democratic Court-packing bid would likely require a filibuster-proof majority in the Senate. Given that daunting prospect, a near-term effort to expand the Court is unlikely to succeed. Yet the Democratic flirtation with court-packing might itself bring the justices to heel. Tobias suggested that a threat to the institution’s composition, even if unlikely, could deter the justices from moving the law rightward.

“Discussing that prospect and other proposals like term limits for justices or adding lower court judges may signal to the Court that it should not veer sharply to the right, as Chief Justice John Roberts seemed to be signaling to Trump and the nation with his rebuff of Trump regarding ‘Obama judges,’” Tobias said, referencing an episode in 2018 in which Roberts rebuked Trump for deriding a district court judge who enjoined the administration’s asylum reforms.

The justices of the Supreme Court pose for their official photo at the Supreme Court in Washington, DC on November 30, 2018. (Mandel Ngan/AFP/Getty Images)

The justices of the Supreme Court pose for their official photo at the Supreme Court in Washington, DC on November 30, 2018. (Mandel Ngan/AFP/Getty Images)

Carrie Severino, chief counsel for the Judicial Crisis Network, accused Democrats of browbeating the Court’s newly entrenched conservative majority.

“Democrats will try anything to politicize the judicial selection process and the courts,” Severino told TheDCNF. “Now they are trying to bully and intimidate the Supreme Court’s justices into serving as a rubber stamp for a liberal political agenda.”

Popular history holds that a similar tactic animated an important change on the Supreme Court during the 1930s. A conservative coalition on the high court struck down much of President Franklin Roosevelt’s domestic economic program during his first term. Flush with victory after his landslide reelection in 1936, Roosevelt asked Congress for authority to appoint as many as six new justices.

Though the Democratic Congress overwhelmingly repudiated that request, Justice Owen Roberts, then the “swing vote” on the bench, began voting to uphold progressive economic measures, like the constitutionality of minimum wage laws. That shift was widely interpreted as a strategic move to protect the Court from Roosevelt’s scheme. Recent scholarship questions the accuracy of this view, sometimes called “the switch in time that saved nine.”

Still, Roosevelt’s plot is widely seen as notorious and misguided, and may explain why no candidate has yet given a court-packing alternative their unqualified endorsement. Instead, the Democratic 2020 contenders urge further discussions or decline to rule out the possibility.

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Kevin Daley | Supreme Court Reporter

The U.S. Supreme Court will decide whether states can prosecute illegal aliens for using fraudulent information to obtain employment, the justices announced Monday.

The case, which arose in Kansas, could feature prominently on the court’s docket next term, as it touches illegal immigration and will likely be heard as ballots are cast in the Democratic presidential primary.

“I am encouraged by the U.S. Supreme Court’s decision to hear our appeal,” Kansas Attorney General Derek Schmidt, a Republican, said in a statement. “We remain convinced Congress did not intend to block Kansas from prosecuting defendants for falsifying state tax forms or private legal documents merely because the defendant also falsified federal employment verification forms.”

The case involves three foreign nationals — Ramiro Garcia, Donaldo Morales and Guadalupe Ochoa-Lara — who entered the country illegally. The trio used stolen Social Security numbers when applying for work in the service industry. All three were convicted of identity theft in Kansas courts.

Those convictions were reversed on appeal to the Kansas Supreme Court. A four-justice majority said that a federal statute called the Immigration Reform and Control Act (IRCA) prohibits states from pursuing such prosecutions. The Kansas court held that IRCA gives the federal government exclusive power to bring prosecutions that use information from the I-9, a federal form used to confirm employment eligibility. Social Security numbers are included on the I-9.

Kansas argued it could still prosecute the defendants because they used the stolen Social Security numbers on other government filings, including state tax forms. The state Supreme Court rejected that argument. Under IRCA, the court found, the federal government’s exclusive control touches both the I-9 itself and the information that appears on it. (RELATED: Is Chief Justice John Roberts Tacking Left?)

On appeal to the U.S. Supreme Court, lawyers for Kansas said the lower court’s decision is contrary to the findings of other courts — like the 9th U.S. Circuit Court of Appeals — which have allowed state prosecutions of the sort at issue here. The justices are much more likely to take a case presenting a question of law about which multiple courts disagree.

The justices of the Supreme Court await the arrival of the casket of former President George H.W. Bush inside the U.S. Capitol Rotunda on December 3, 2018 (REUTERS/Jonathan Ernst)

The justices of the Supreme Court await the arrival of the casket of former President George H.W. Bush inside the U.S. Capitol Rotunda on Dec. 3, 2018. (REUTERS/Jonathan Ernst)

Kansas also said states have an important role to play in combatting identity theft.

“This nationwide, indeed worldwide, problem and its consequences are more than the federal government alone can address,” Kansas’s petition for review reads. “Thus, the states play a substantial and integral role in combatting identity crimes and their pernicious consequences.”

The Trump administration urged the high court to take the Kansas case. In a legal filing supporting Kansas, Solicitor General Noel Francisco warned the lower court decision would produce chaotic results and undermine the power of the states.

A coalition of 10 states led by Michigan also urged the high court to grant review in the Kansas case.

The justices will hear the case during the Supreme Court’s next term, which begins in October.

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Kevin Daley | Supreme Court Reporter

  • A group of Pennsylvania high school students are challenging a school district policy that permits transgender students to use the locker room and bathroom facilities corresponding to their stated gender identity. 
  • The students say that the policy violates federal and state law, including their constitutional right to privacy.
  • The district says they have an important interest in anti-discrimination, and have created a remedy for students uncomfortable with the policy. 

The Supreme Court will decide whether it will hear a challenge to a Pennsylvania school district policy that allows transgender students to use locker room and restroom facilities that align with their stated gender identity.

The case joins one of several petitions relating to LGBT issues that are currently pending before the Court’s newly-entrenched conservative majority.

The case arose in the Boyertown Area School District, which is one hour northwest of Philadelphia, when school officials began permitting trans students to use the bathroom and locker room facilities corresponding with their stated gender identity on a case-by-case basis.

That policy change was not announced and has not yet been codified in writing, according to the school district’s legal filing at the high court.

The petitioners are several unnamed high school students who claim the district’s policy violates their privacy rights. One plaintiff, called Joel Doe in court documents, is a male student who objected to changing in a locker room with trans-men. Doe, while partially dressed, encountered a trans-male student changing next to him before gym class. Thereafter, Doe declined to change his clothes for gym class and has since left the school.

Another plaintiff is a female student who was distressed to encounter a trans-woman in the girls bathroom. That plaintiff has since identified herself as Alexis Lightcap and elected to proceed under her own name.

The Alliance Defending Freedom (ADF) represents the student plaintiffs. The ADF is the public interest law practice that successfully represented Christian baker Jack Phillips before the high court in the 2018 Masterpiece Cakeshop case.

The plaintiffs challenged the district policy in federal court, claiming it violates their constitutional right to bodily privacy, Title IX (the federal civil rights in education law), as well as a state tort claim of intrusion upon seclusion.

The district counters that no one is required to share intimate spaces with trans students: The district high school has eight single-user bathrooms — several of which have lockers — for pupils who do not wish to change clothes or use the bathroom with trans people. School officials say those alternative spaces adequately address any privacy concerns and are an appropriate remedy for their compelling interest in non-discrimination.

In their brief opposed the plaintiffs’s petition at the Supreme Court, the district also said decisions about accommodating trans students are best left to schools. (RELATED: Is Chief Justice John Roberts Tacking Left?)

“The decisions as to how to address the rights of transgender students under the myriad of laws that are implicated should be left in the hands of trained, educated and certificated school administrators who know what facilities they have, what students need, and how to grant all students — cisgender and transgender alike — the safe educational environment to which they are rightfully entitled,” their brief reads.

The Supreme Court as seen on Decmeber 24, 2018. (Eric Baradat/AFP/Getty Images)

The Supreme Court as seen on Decmeber 24, 2018. (Eric Baradat/AFP/Getty Images)

The plaintiffs sought an injunction barring the school district from enforcing their policy while litigation continues in 2017. U.S. District Judge Edward Smith denied that request. The 3rd U.S. Circuit Court upheld Smith’s decision in 2018, prompting an appeal to the high court. In a rarely-seen move, the 3rd Circuit announced its decision almost two months before issuing a written opinion, citing a desire to resolve the case before several of the students involved graduate.

ADF says the 3rd Circuit impermissibly redefined “sex” to mean the trans-person’s belief about their identity.

“The 3rd Circuit redefined ‘sex’ in the privacy and Title IX contexts as depending solely on a student’s subjective perceptions and feelings,” their petition reads. “Nothing in this Court’s precedents or the plain language of Title IX supports such a redefinition.”

The justices meet privately in conference several times each month to discuss which cases they will take. The Court was initially scheduled to discuss the Boyertown petition on Feb. 22, but has since delayed consideration several times. This might be a sign the justices are attempting to avoid such a politically fraught dispute.

A decision as to whether the Court will hear the case could come as soon as late March.

The Supreme Court previously grappled with a similar dispute. That case arose in Virginia, where the Gloucester County schools refused to comply with Obama-era Education Department guidance providing that public schools should allow students to use the bathroom corresponding to their stated gender identity.

The justices agreed to take that case, but returned it to the lower courts after the Trump administration rescinded the Obama directive.

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