Saturday, August 20, 2022
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court issued an emergency order siding with voters challenging a Georgia voting system for electing public service commissioners. The decision reinstates a district court ruling that the system diluted the power of black voters and violated the federal Voting Rights Act. The Eleventh Circuit had stayed that order based on Purcell v. Gonzalez, a case that disfavors election challenges that occur too close to those elections. However, the Court agreed with a dissenting Eleventh Circuit judge who recognized that during the lower court case, Georgia had repeatedly and clearly waived an appeal based on Purcell; the Court found that the appeals court had “applied a version of [Purcell] that respondent could not fairly have advanced himself in light of his previous representations to the district court that the schedule on which the district court proceeded was sufficient to enable effectual relief as to the November elections should applicants win at trial.” See reports from The New York Times and CNN.
Colorado has filed a Brief for the Respondents in a case challenging Colorado’s anti-discrimination law. The Court agreed to hear the case in the next term. The petitioner is a web-designer who wishes to design wedding websites but not for same-sex couples. The petitioner wants to be able to deny services to same-sex couples and wants to include a message explaining the reason. Colorado law prohibits such discriminatory practices by public businesses and prohibits a business from declaring the intent to discriminate. The petitioner claims that the law is a violation of free speech. Colorado’s attorney general urges the Court to uphold the anti-discrimination law, arguing that “discrimination is not expression, it's illegal conduct.” See reports from the Colorado Sun and Colorado Public Radio.
Appellate Court Opinions and News
The DC Circuit decided that rules that limit the political speech of employees of the Administrative Offices of the US Courts are unnecessary and violate the First Amendment. The ruling applies only to the two employees who brought the challenge and not generally to other employees. The court recognized the legitimate goal of maintaining the reputation of the judiciary for independence from politics while workers are at work but held that the offices “cannot prohibit political speech by [employees] when they are away from work and in no way affiliating themselves with the Judiciary.” See the ruling and reports from The National Law Journal and Reuters.
In a first-of-its-kind ruling, the Fourth Circuit ruled that gender dysphoria is covered by the Americans with Disabilities Act, reversing a Virginia court’s dismissal of claim brought by a transgender woman. The woman had been denied care for her gender dysphoria while she was incarcerated and was harassed by both inmates and prison staff. The court held that “[g]iven Congress’ express instruction that courts construe the ADA in favor of maximum protection for those with disabilities, we could not adopt an unnecessarily restrictive reading of the ADA.” See the ruling and reports from The Washington Post, The National Law Review, and The National Law Journal.
The First Circuit ruled that taxpayers can sue the IRS over its tactics for obtaining information even if those tactics would enable to government to assess and collect taxes. A crypto trader challenged the IRS’s use of a tactic to obtain trading records from cryptocurrency exchanges arguing that the tactics violated his Fourth and Fifth Amendment rights. The IRS had argued successfully below that the suit violated the Anti-Injunction Act of the Internal Revenue Code because the aim of the suit was to avoid the collection of taxes. The First Circuit overturned the dismissal below and will allow the suit to heard on the merits of the constitutional claims. See ruling and report from Reuters.