Business as Usual… At SCOTUS at Least

This election season has shocked many Americans. If that included the eight justices of the U.S. Supreme Court, they sure weren’t letting on. It was pretty much business as usual at the high court this week, although Wednesday Justice Ruth Bader Ginsburg wore the jabot she typically wears when she reads her dissents.

Because you may have been preoccupied with other things, let’s get you caught up with what went on at SCOTUS.

On Monday, the only oral argument the justices heard was an administrative law case that dealt with the president’s power to temporarily fill vacancies with the advice and consent of the Senate, in No. 15-1251, NLRB v. Southwest General, Inc.

Of course, the Supreme Court itself has a vacancy that’s being held up by the Senate’s refusal to advise and consent. That, however, didn’t factor into the argument.

The cases centers on the 1998 Federal Vacancies Reform Act, which Congress passed “to regain the power it had lost when presidents from both parties flouted the previous law’s requirements, including by appointing their desired nominee to a lower position and then allowing them to serve as the ‘acting’ official.”

The issue for the court is whether the FVRA allows a person serving in an acting capacity to continue to serve after being nominated to fill the role permanently.

“The justices seemed to lean in favor of requiring nearly all acting officials to step aside while their permanent nomination is being considered — not just a limited few. All eight of the lower court judges who have looked at the issue have decided it that way, Justice Anthony M. Kennedy said,” I reported Monday.

Read more about the argument here.

As Americans were taking to the polls to elect Donald Trump, “the high court grappled with a case that grew out of the subprime mortgage crisis,” in No. 15-1111, Bank of America v. Miami, Bloomberg’s Greg Stohr says.

The consolidated cases look at “the ability of cities to use the Fair Housing Act to sue banks for discriminatory lending practices that contribute to urban blight,” he said.

Here, a lower federal court said that Miami could sue big banks for allegedly targeting “minorities for riskier and costly loans, leading to foreclosures that cost the city property-tax revenues and forced it to spend more on police and fire services.”

Greg says the justices are likely to split closely in this one. Read why here.

The court also heard a case about federal jurisdiction on Election Day, No. 14-1055, Lightfoot v. Cendant Mortgage Corp.

At issue here is whether mortgage-giant Fannie Mae may always sue and be sued in federal, rather than state, courts.

The result in this case could “be huge for the federal judiciary,” as more than “40,000 foreclosure cases involving Fannie Mae currently in state courts could end up in federal court,” Bloomberg BNA’s Nick Datlowe says.

Read how the argument went down here.

Finally, the court rounded out its oral arguments for the week with a post-election day argument in an immigration case, No. 15-1191, Lynch v. Morales-Santana.

The justices seemed likely to find unconstitutional a law that makes it harder for unwed fathers to pass on their U.S. citizenship to their children than unwed mothers.

The only real question seemed to be what is the proper remedy to cure the gender discrimination.

Read more about the argument here.

The Morales-Santana case suggests that the constitutional norms for immigration law are changing. Check out this Cases & Controversies podcast for more on that change.

That’s all from SCOTUS this week. The court will resume oral arguments on Nov. 28.

Until then, stay on top of the latest Supreme Court news with a free trial to United States Law Week.