{"id":1764,"date":"2019-07-03T18:49:39","date_gmt":"2019-07-03T18:49:39","guid":{"rendered":"https:\/\/albanknews.com\/?p=1764"},"modified":"2019-07-03T18:49:39","modified_gmt":"2019-07-03T18:49:39","slug":"supreme-court-update-for-banking-and-financial-services-professionals-14","status":"publish","type":"post","link":"https:\/\/albanknews.com\/?p=1764","title":{"rendered":"Supreme Court Update for Banking and Financial Services Professionals"},"content":{"rendered":"

by Charles W. Prueter<\/a> & Manning T. Russell<\/em><\/p>\n

\u201cCelebrities: They\u2019re just like us!\u201d Whether you like it or not, this refrain resonates within our popular culture. Perhaps discovering that movie or reality TV stars eat pizza and pump gas \u2014 just like us! \u2014 makes us feel known. As if the worldly activities of the stars somehow validate our own daily lives. For Court-watchers in particular, there\u2019s a similar comfort: \u201cThe Justices: They\u2019re just like us!\u201d Every now and then there is some excitement on Twitter among lawyers about a sighting of a Justice at a pizza place in Georgetown. And we can always count on a singular moment at the end of every June, which is formal end of the Supreme Court\u2019s yearly Term, when the Justices appear to push many of the most hotly contested and closely watched cases right up to that deadline. Finishing important projects just before the deadline \u2014 just like us!<\/p>\n

Indeed, in the month of June alone, the Supreme Court released 29 of its 72 total opinions for the Term that runs from October to June. Some of those received extensive press coverage and obviously many did not. In any event, the Update this month highlights some of the June decisions that may be of general interest to readers:<\/p>\n

In American Legion v. American Humanist Association, No. 17-1717<\/a><\/em><\/strong>, or the \u201cBladensburg Cross\u201d case, the Court took up the ever-controversial intersection of faith and public life. As the Court described it, since 1925, the \u201cBladensburg Peace Cross\u201d has stood in Prince George\u2019s County, Maryland, as a tribute to 49 area soliders who gave their lives in the First World War. It is approximately 32 feet tall and lists the names of those men on a bronze plaque at its base. The lawfulness of this public display was challenged in 2012, when the American Humanist Association contended that the Bladensburg Cross violated the Establishment Clause of the First Amendment, which prohibits the government from making any law \u201crespecting an establishment of religion.\u201d The American Humanist Association wanted the Cross to be torn down, and the litigation made its way to the Supreme Court.<\/p>\n

In a splintered opinion, the Court, through justice Samual Alito, upheld the constitutionality of the Bladensburg Cross, explaining that \u201ca government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.\u201d Moreover, the Court reasoned that war memorials, like the Cross, are just that \u2014 war memorials, for which religious associations may no longer be at the forefont. While the Court\u2019s Establishment Clause jurisprudence may still be a mess, this case does brings clarity for the many memorials and monuments bearing religious symbolism in this country. In short, they\u2019re all probably here to stay \u2014 although new construction with public dollars certainly would be a different story.<\/p>\n

In Kisor v. Wilkie, No. 16-1929<\/a><\/em><\/strong>, the Court reconsidered a doctrine under which federal courts defer to an agency\u2019s interpretation of its own ambiguous regulation. Although this case held the potential to upend the modern administrative state by curbing the power of an agency to promulgate ambiguous regulations and yet maintain the authority to alter the meanings of those regulations without notice to the individuals and businesses affected, the Supreme Court ultimately decided to leave the law as-is. That is, when a federal agency (such as the Department of Labor or the Treasury Department) promulgates an ambiguous regulation, federal courts should defer to the agency\u2019s own subsequent interpretation of that regulation. Giving a teeny-tiny victory to those who would curb the power of the administrative state, the Supreme Court did affirm in this case that agencies should only get deference in these situations when a regulation is \u201cgenuinely ambiguous.\u201d Thus, the agency\u2019s power to make up the law as it goes is not completely unlimited!<\/p>\n

Rucho v. Common Cause, No. 18-422<\/a><\/em><\/strong>, was probably the most important case of the Term, from the perspective of the political system in this country. At issue here was the practice \u201cpartisan gerrymandering.\u201d Crudely, that means the party in power in a state legislature sits around a table and draws the districts in a way to diminish the voting power of the other party \u2014 no matter how funky the districts look. In true American fashion, this is an equal opportunity practice: The case before the Supreme Court involved Maryland, where Democrats had drawn the districts, and North Carolina, where Republicans had done the drawings. The pure political partisanship of the practice makes it unpopular \u2014 in no small part because our legislators are drawing these districts in ways to make sure that they get re-elected, and that annoys many of us. In legal terms, the plaintiffs in these cases alleged that partisan gerrymandering violates the First and Fourteenth Amendments. But the Supreme Court, in the ultimate \u201cpunt,\u201d declined to decide the question, concluding that partisan gerrymandering claims are not \u201cjusticiable\u201d \u2014 i.e., cannot be decided \u2014 in federal courts. Instead, the Court concludes, partisan gerrymandering is a problem that politicians, voters, and the political process should sort out. The upshot of this case is: Get out and vote!<\/p>\n

In Department of Commerce v. New York, No. 18-966<\/a><\/em><\/strong>, the Supreme Court \u2014 in a decision authored by Chief Justice John Roberts \u2014 temporarily prevented the census from including a citizenship question. The Court noted that while the census could potentially<\/em> include a citizenship question, the Secretary of Commerce gave a seemingly insincere and pretextual reason for including the question. As a result, the case has been sent back to the lower courts in order to give the government\u00a0 an opportunity to provide a more sincere explanation as to why the question should be included.<\/p>\n

Several of the Court\u2019s more liberal justices joined a concurring opinion which argued that regardless of the Secretary of Commerce\u2019s reasoning the census should not include the citizenship question because \u201cthe evidence indicated that asking the question would produce citizenship data that is less accurate, not more.\u201d Alternatively, several of the Court\u2019s more conservative justices joined a partial concurrence which argued that the Court\u2019s \u201conly role in this case [was] to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision\u201d and that the sincerity of the explanation was irrelevant. Regardless \u2014 and in a defeat for the Trump administration \u2014 the Justice Department has recently confirmed that there will be no citizenship question on the 2020 census.<\/p>\n

Charles W. Prueter<\/a> is a trial and appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at charles.prueter@wallerlaw.com. <\/em><\/p>\n

Manning T. Russell is currently a summer associate with Waller Lansden Dortch & Davis, LLP. He will begin his third year of law school at Washington & Lee School of Law in the fall.<\/em><\/p>\n

\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

by Charles W. Prueter & Manning T. Russell \u201cCelebrities: They\u2019re just like us!\u201d Whether you like it or not, this refrain resonates within our popular culture. Perhaps discovering that movie or reality TV stars eat pizza and pump gas \u2014 just like us! \u2014 makes us feel known. As if the worldly activities of the stars somehow validate our own daily lives. For Court-watchers in particular, there\u2019s a similar comfort: \u201cThe Justices: They\u2019re just like us!\u201d Every now and then there is some excitement on Twitter among lawyers about a sighting of a Justice at a pizza place in Georgetown. […]<\/p>\n","protected":false},"author":1,"featured_media":1151,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[19,25,28,23],"tags":[],"class_list":["post-1764","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-breaking","category-industry-reports","category-legal","category-publications","has_thumb"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/albanknews.com\/wp-content\/uploads\/2018\/03\/scotus-graphic.jpg?fit=100%2C100&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/p4Y3P2-ss","jetpack_sharing_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts\/1764","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1764"}],"version-history":[{"count":1,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts\/1764\/revisions"}],"predecessor-version":[{"id":1766,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/posts\/1764\/revisions\/1766"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=\/wp\/v2\/media\/1151"}],"wp:attachment":[{"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1764"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1764"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/albanknews.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1764"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}