Democratic proposal to expand U.S. Supreme Court gets lukewarm reception

By Andrew Chung and David Morgan

WASHINGTON (Reuters) – A group of liberal Democratic lawmakers on Thursday proposed expanding the U.S. Supreme Court by four justices, aiming to end its conservative majority, but the plan drew an unenthusiastic response from some top Democrats and was denounced by Republicans.

Senator Ed Markey and House of Representatives members Jerrold Nadler, Hank Johnson and Mondaire Jones introduced legislation in both chambers that would expand the number of justices to 13 from the current nine.

Markey said the measure would “restore balance” to the court. Republican former President Donald Trump was able to appoint three justices during his four years in office, giving the court a 6-3 conservative majority.

“Senate Republicans have politicized the Supreme Court, undermined its legitimacy and threatened the rights of millions of Americans,” Markey said in a statement.

President Joe Biden, a Democrat, last Friday established a bipartisan commission to study potential Supreme Court changes including expansion or imposing term limits on the justices instead of the current lifetime appointments. Biden gave the commission 180 days to report its findings.

The number of Supreme Court justices has remained at nine since 1869. Congress has the power to change the number and did so several times before that. Democrats hold slim majorities in the House and Senate. The Senate is divided 50-50, with Vice President Kamala Harris casting a tie-breaking vote. Most legislation needs 60 votes to advance in the Senate.

Expanding the court, an idea popular among some liberals and activists on the left, has not drawn broad-based support, with some Democratic leaders expressing uncertainty and Republicans firmly opposed to what is sometimes called “court packing.”

House Speaker Nancy Pelosi, a Democrat, expressed reservations, saying she favors Biden’s proposal to study the issue.

Senate Judiciary Committee Chairman Dick Durbin, a Democrat, balked at the idea of bringing the legislation to a vote in his panel. “I’m not ready to sign on yet. I think this commission of Biden is the right move,” Durbin said.

Senate Republican leader Mitch McConnell denounced the legislation as a vehicle for Democrats to “pack the court, destroy its legitimacy, and guarantee the rulings that liberals want.”

Some Democrats and liberal activists have said all options including expansion must be considered to counter an entrenched conservative majority that could threaten abortion rights, civil rights, gun control and access to healthcare in the coming years.

Democrats accused Republicans of “stealing” a Supreme Court seat in 2016 when the Senate, then controlled by Republicans, refused to consider Democratic President Barack Obama’s election-year nomination of Merrick Garland to fill a vacancy left by the death of conservative Justice Antonin Scalia. Trump in 2017 was able to fill the vacancy with a conservative jurist.

Democrats accused Republicans of hypocrisy last year when the Senate quickly confirmed Trump’s appointment of conservative Justice Amy Coney Barrett a week before the presidential election after the death of liberal Justice Ruth Bader Ginsburg the prior month.

“Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Markey said.

Imposing term limits on the justices would likely require a constitutional amendment, though some scholars have proposed ways to accomplish it by statute.

(Reporting by Andrew Chung in New York and David Morgan in Washington, additional reporting by Richard Cowan; Editing by Scott Malone and Will Dunham)

Georgia wins 8-year water fight with downstream neighbor Florida

By Rich McKay and Sebastien Malo

ATLANTA (Reuters) – The U.S. Supreme Court on Thursday sided with Georgia in ending its eight-year battle with Florida over water that runs through Atlanta’s thirsty metro region and downstream past cotton and peanut fields to Apalachicola Bay and its depleted oyster fisheries.

The high court tossed out claims by Florida that Georgia is using too much water from the Chattahoochee River, a tributary of the Apalachicola River basin downstream, driving up salinity levels in the estuary it feeds and causing the once-rich oyster population there to collapse.

In the eyes of Michael Dasher, a fourth-generation Florida oysterman counting on a different outcome in legal bids to wrestle back more freshwater supplies for his vanishing way of life, it’s over.

“We thought the court would finally do what’s right and help us out, send more water,” said Dasher, 54. “We know Atlanta and them all in Georgia need it too, but they’ve about run the river dry. This is pretty much the end for us.”

In a unanimous 9-0 decision, the court ruled that Florida did not prove that its proposed water diversion caps on Georgia were warranted, given the balance between the needs of Georgia’s population and agricultural needs versus the needs of Florida. Nor did the court accept that water depletion was the cause of the Florida’s declining oyster beds.

Georgia has argued over-harvesting by its southern neighbor in recent years and a 2012 drought were to blame for the oyster crash.

Florida had also neglected to “reshell” its oyster bars, a management practice that gives young oysters greater habitat, the justices wrote.

A spokesman for the Florida Department of Environmental Protection was not immediately available to comment, but the agency has said that it had hoped the court would restore the historic flows of the Apalachicola River.

Georgia Governor Brian Kemp touted the court win as a “resounding victory for Georgia and a vindication of years-long effort by multiple governors and attorneys general here in the Peach State to protect our citizens’ water rights.”

According to federal precedent dating back 100 years, both states have a claim to a share of the water in question, but it’s “not a 50-50 split,” Santa Fe attorney and water rights expert John Draper, previously told Reuters.

Thursday’s ruling was not unexpected, given that a state water rights expert named “special master” in the case by the high court, had recommended that the justices side with Georgia.

Georgia officials and farmers say they are already conserving more water than ever. The Atlanta Regional Commission said the nine-county greater metropolitan area around the state capital now uses 10% less water than it did 20 years ago, even though the population has climbed by 1.2 million.

Katie Byrd, a spokeswoman with the office of Georgia’s attorney general, said the ruling “affirmed what we have long known to be true: Georgia’s water use has been fair and reasonable.”

(Reporting by Rich McKay in Atlanta and Sebastien Malo in New York; Editing by Steve Gorman and Grant McCool)

U.S. Supreme Court takes up bid to revive defense of Kentucky abortion law

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday agreed to hear a bid by Kentucky’s Republican attorney general to defend a restrictive state law, struck down by lower courts, that abortion rights advocates have said would effectively ban the procedure after 15 weeks of pregnancy.

Attorney General Daniel Cameron has asked the justices to let him intervene in defense of the Republican-backed law after Democratic Governor Andy Beshear’s administration dropped the case.

The Supreme Court is being asked to decide only that narrow issue, and not whether the law violates Supreme Court precedents holding that women have a right to obtain an abortion. Abortion opponents are hopeful that the Supreme Court, which has a 6-3 conservative majority, will curb abortion rights.

Abortion rights advocates have said the 2018 law would effectively ban an abortion method called dilation and evacuation – the most common form of abortion performed during the second trimester of a pregnancy.

The law was passed by Kentucky’s legislature and signed by a Republican governor, but Beshear subsequently was elected and decided not to continue to defend the measure after the Cincinnati-based 6th U.S. Circuit Court of Appeals struck it down in June 2020. The 6th Circuit later that month declined to allow Cameron to intervene to defend the law.

The 6th Circuit ruling came just five days before the Supreme Court in a 5-4 decision struck down a Louisiana law that imposed restrictions on doctors who perform abortions. Cameron wants to be able to ask the 6th Circuit to reconsider its ruling against the Kentucky law in light of language contained in the Louisiana decision.

The Kentucky law was one of a growing number passed by Republican legislators at the state level imposing a variety of restrictions on abortion. The state’s previous governor, Republican Matt Bevin, had defended the law.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

U.S. Supreme Court weighs taking up major gun rights case

By Andrew Chung

NEW YORK (Reuters) – The U.S. Supreme Court on Friday discussed taking up a major new gun rights case involving a National Rifle Association-backed challenge to a New York state law that restricts the ability of residents to carry concealed handguns in public.

It was among the cases on the agenda at the private weekly conference of the justices. There is heightened concern about gun violence in the United States following a pair of mass shootings in a span of a week, one in Georgia and the other in Colorado, that killed a total of 18 people.

Two gun owners and the New York affiliate of the NRA, an influential gun rights group closely aligned with Republicans, are asking the justices to hear an appeal of a lower court ruling throwing out their challenge to a policy that requires a state resident to show “proper cause” to obtain a permit to carry a concealed handgun outside the home.

Lower courts rejected the argument made by plaintiffs that the restrictions violated the U.S. Constitution’s Second Amendment right to keep and bear arms.

The Supreme Court is not expected to announce whether it will take action on the appeal until Monday at the earliest.

If the justices do eventually take up the case and hear oral arguments, they would once again step into a swirling debate over gun rights in a nation that has a gun fatality rate consistently higher than other rich countries.

Democratic President Joe Biden on Tuesday urged the Senate to approve two bills passed by the Democratic-led House of Representatives on March 11 that would broaden background checks on gun buyers. Biden also called for a national ban on assault-style weapons, while the White House said he is considering executive actions to address gun violence that would not require the approval of Congress.

Numerous mass shootings in the United States have failed to spur the U.S. Congress to pass gun control legislation sought by Democrats, thanks in large part to opposition from congressional Republicans and the NRA.

The Supreme Court’s 6-3 conservative majority is seen as holding an expansive view of Second Amendment rights.

The New York case, if accepted, could lead to the most consequential ruling on the scope of the Second Amendment in more than a decade. The court in a landmark 2008 ruling recognized for the first time an individual’s right to keep guns at home for self-defense, and in 2010 applied that right to the states.

The plaintiffs in the New York case are asking for that right to be extended beyond the home. A ruling against New York could force lower courts to cast a skeptical eye on new or existing gun control laws.

Under New York’s law on carrying concealed handguns, a resident may obtain licenses that are restricted to hunting and target practice, or if they hold certain jobs such as a bank messenger or correctional officer. But to carry a concealed handgun without restriction, an applicant must convince a firearms licensing officer of an actual – rather than merely speculative – need for self-defense.

(Reporting by Andrew Chung; Editing by Will Dunham)

U.S. Supreme Court widens ability to sue police for excessive force

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday expanded the ability of people to sue police for excessive force, ruling in favor of a New Mexico woman who filed a civil rights lawsuit after being shot by officers she had mistaken for carjackers.

The 5-3 decision allowed the woman, Roxanne Torres, to pursue her lawsuit accusing New Mexico State Police officers Richard Williamson and Janice Madrid of violating the U.S. Constitution’s Fourth Amendment ban on illegal searches and seizures even though she had not been immediately detained, or seized, in the incident.

The court determined that in order to sue for excessive force under the Fourth Amendment, it is not necessary for a plaintiff to have been physically seized by law enforcement.

“We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued,” conservative Chief Justice John Roberts wrote in the ruling.

Roberts was joined in the decision by the court’s three liberals and one of his fellow conservatives, Justice Brett Kavanaugh. Three other conservatives justices dissented. The newest justice, conservative Amy Coney Barrett, did not participate because she had not yet joined the court when the case was argued in October.

In a dissenting opinion, conservative Justice Neil Gorsuch said a “seizure” under the Fourth Amendment has always been defined as “taking possession of someone or something,” and he criticized the court’s contrary conclusion.

“That view is as mistaken as it is novel,” Gorsuch wrote.

The case will now return to lower courts, where the officers could seek to have the lawsuit dismissed on other grounds including the legal doctrine called qualified immunity that protects police and other types of government officials from civil litigation in certain circumstances.

In the 2014 incident, four officers arrived at an apartment complex in Albuquerque and approached Torres, who was sitting in a car. Torres said she fled when she saw people with guns approaching, thinking she was going to be carjacked. Madrid and Williamson fired 13 shots between them, hitting her twice in the back as she drove away in her car.

Torres continued driving but was arrested the next day after being treated in a hospital for her wounds. She was convicted of three criminal offenses, including fleeing from a law enforcement officer.

After Torres sued in a federal court in New Mexico in 2016, the judge dismissed the case, saying there could be no excessive force claim because a “seizure” had not occurred. The Denver-based 10th U.S. Circuit Court of Appeals reached the same conclusion in 2019, prompting Torres to appeal to the Supreme Court.

There is heightened public scrutiny of police conduct in the wake of protests in many cities last year against racism and police brutality. Rulings by the Supreme Court in other cases over police powers are due by the end of June.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Biden reverses course in U.S. Supreme Court drug sentencing case

By Lawrence Hurley

WASHINGTON (Reuters) – President Joe Biden’s administration on Monday told the U.S. Supreme Court that it thinks low-level crack cocaine offenders should be among the beneficiaries of a federal law that reduced certain prison sentences, reversing the position taken under his predecessor Donald Trump.

Although Trump signed the 2018 law known as the First Step Act, his administration had concluded that possession of a small amount of crack cocaine was not a “covered offense” under the statute, which included various criminal justice reforms.

Acting Solicitor General Elizabeth Prelogar wrote in a letter to the Supreme Court that the Justice Department now believes that the defendant who appealed his case to the justices, Tarahrick Terry, is eligible for a lesser sentence.

Terry, now 33, pleaded guilty in 2008 in Florida to one count of possession with intent to distribute 3.9 grams of crack cocaine. He was sentenced to 15-1/2 years in prison. The Atlanta-based 11th U.S. Circuit Court of Appeals last year ruled against Terry.

The Supreme Court is scheduled to hear oral arguments in the case on April 20.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

U.S. Supreme Court rejects case over ‘qualified immunity’ for police

By Andrew Chung

(Reuters) – The U.S. Supreme Court on Monday sidestepped a chance to review the scope of a legal defense called qualified immunity that increasingly has been used to shield police accused of excessive force, turning away an appeal by a Cleveland man who sued after being roughed up by police while trying to enter his own home.

The justices declined to hear the appeal by Shase Howse, who said he was slammed to the ground outside the house where he lived with his mother in a poor and mostly Black neighborhood, struck in the back of the neck and jailed after police deemed his actions suspicious. Howse, who was 20 at the time, is Black. The police involved in the 2016 incident are white.

Qualified immunity protects police officers and other types of government officials from civil litigation in certain circumstances, allowing lawsuits only when an individual’s “clearly established” statutory or constitutional rights have been violated.

Police use of force has been closely scrutinized following the May 2020 death of a Black man named George Floyd after a Minneapolis officer knelt on his neck.

The U.S. House of Representatives last Wednesday passed policing reform legislation that among other provisions would eliminate the qualified immunity defense for law enforcement. The legislation, supported by most Democrats and opposed by Republicans, faces an uphill battle in the Senate.

Howse’s case was featured in a Reuters investigation into qualified immunity published in December. The investigation illustrated how the endorsement of this defense by courts has denied Black Americans recourse to justice under a law enacted 150 years ago specifically to protect them from abuses by state and local authorities in the post-Civil War years.

Howse sued two police officers, Brian Middaugh and Thomas Hodous, accusing them of excessive force in violation of the U.S. Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures. The officers said they used only the force necessary to subdue Howse.

The Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals in 2020 granted the officers qualified immunity, ruling that no “clearly established” precedent showed that their actions were unlawful.

In May 2020, a Reuters investigation revealed how qualified immunity, under the careful stewardship of the Supreme Court, has made it easier for police to kill or injure civilians with impunity by shielding them from lawsuits, even when courts determine police actually violated a person’s constitutional rights.

Law enforcement professionals and some U.S. conservatives have argued that qualified immunity is essential for police to make quick decisions in dangerous situations without fear of lawsuits.

In recent months, the Supreme Court has signaled a potential softening of its approach to qualified immunity. In two cases the justices allowed inmates to sue prison guards who had been granted immunity by lower courts from accusations that they violated the Constitution’s Eighth Amendment prohibition on cruel and unusual punishment.

(Reporting by Andrew Chung in New York; Editing by Will Dunham)

Barrett authors first U.S. Supreme Court ruling, a loss for environmentalists

By Lawrence Hurley

WASHINGTON (Reuters) – Conservative Justice Amy Coney Barrett on Thursday authored her first ruling since joining the U.S. Supreme Court in October as the court handed a defeat to an environmental group seeking access to government documents.

In the 7-2 ruling, the justices sided with the U.S. Fish and Wildlife Service, thwarting an effort by the Sierra Club to obtain documents concerning a regulation finalized in 2014 relating to power plants. Barrett and the court’s other five conservative justices were joined by liberal Justice Elena Kagan in the majority, with liberals Justices Stephen Breyer and Sonia Sotomayor in dissent.

The Senate approved Barrett for a lifetime job on the top U.S. judicial body on Oct. 26 after an accelerated confirmation process that unfolded in the weeks before the Nov. 3 presidential election. She is one of three justices appointed by Republican former President Donald Trump and she replaced liberal Justice Ruther Bader Ginsburg, who died on Sept. 18.

Her swift confirmation by the Senate, which at the time was controlled by Trump’s fellow Republicans but is now led by the Democrats, moved the court further to the right and prevented Biden from replacing Ginsburg with a liberal successor. It marked the closest to a presidential election that a Supreme Court justice had won Senate confirmation.

The Sierra Club ruling limits the scope of U.S. agency documents that would be subject to a federal law called the Freedom of Information Act, which lets people request certain government materials.

The group wanted access to internal documents concerning the Fish and Wildlife Service’s conclusion that a proposed environmental regulation for cooling water intake structures that are used by power plants and other industrial facilities would not adversely affect endangered species, including fish, turtles and shellfish.

In 2013, the agency initially found that the regulation would put the species in jeopardy but its final recommendation to the Environmental Protection Agency in 2014 reached the opposite conclusion.

Writing for the court, Barrett said the 2013 draft documents were protected from disclosure because “they reflect a preliminary view – not a final decision – about the likely effect of the EPA’s proposed rule on endangered species.”

A federal judge in California ruled in 2017 that 11 documents had to be disclosed. Trump’s administration appealed and the San Francisco-based 9th U.S. Circuit Court of Appeals in 2018 ruled partly for the government but still found that nine documents had to be released.

The case was argued on Nov. 2, the day before Election Day. It marked first Barrett’s first arguments as a justice. She previously served on a lower federal appeals court and as a legal scholar at the University of Notre Dame in Indiana.

So far, Barrett’s biggest impact on the court came when she provided the decisive vote in favor of religious entities challenging COVID-19 restrictions in New York.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

U.S. Supreme Court begins arguments in major voting rights case

By Andrew Chung and Lawrence Hurley

WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday began hearing arguments on the legality of two Republican-backed voting restrictions in Arizona in a case that could further weaken the Voting Rights Act, a landmark 1965 federal law that bars racial discrimination in voting.

The important voting rights case comes before the justices at a time when Republicans in numerous states are pursuing new restrictions after former President Donald Trump made claims of widespread fraud in the Nov. 3 election. Republican proponents of Arizona’s restrictions cite the need to combat voting fraud.

The justices are hearing arguments by teleconference in appeals by Arizona’s Republican Attorney General Mark Brnovich and the state Republican Party of a lower court ruling that found that the voting restrictions at issue disproportionately burdened Black, Hispanic and Native American voters.

One of the measures made it a crime to provide another person’s completed early ballot to election officials, with the exception of family members or caregivers. The other disqualified ballots cast in-person at a precinct other than the one to which a voter has been assigned.

Community activists sometimes engage in ballot collection to facilitate voting and increase voter turnout. The practice, which critics call “ballot harvesting,” is legal in most states, with varying limitations. Voting rights advocates said voters sometimes inadvertently cast ballots at the wrong precinct, with the assigned polling place sometimes not the one closest to a voter’s home.

A broad ruling by the high court, whose 6-3 conservative majority includes three justices appointed by Trump, endorsing the restrictions could impair the Voting Rights Act by making it harder to prove violations. Such a ruling could impact the 2022 mid-term elections in which Republicans are trying to regain control of the U.S. House of Representatives and Senate from the Democrats.

A ruling is due by the end of June.

At issue is the Voting Rights Act’s Section 2, which bans any rule that results in voting discrimination “on account of race or color.” This provision has been the main tool used to show that voting curbs discriminate against minorities since the Supreme Court in 2013 gutted another section of the statute that determined which states with a history of racial discrimination needed federal approval to change voting laws.

The Democratic National Committee and the Arizona Democratic Party sued to try to overturn Arizona’s restrictions. The San Francisco-based 9th U.S. Circuit Court of Appeals last year found that the restrictions violated the Voting Rights Act, though they remained in effect for the Nov. 3 election.

The 9th Circuit also found that “false, race-based claims of ballot collection fraud” were used to convince Arizona legislators to enact that restriction with discriminatory intent, violating the U.S. Constitution’s prohibition on denying voting rights based on race.

Numerous courts rejected claims of voting fraud made in lawsuits by Trump and his allies seeking to overturn his loss to Biden. Eleven Republican U.S. senators including Senate Minority Leader Mitch McConnell and Senator Ted Cruz submitted a brief to the Supreme Court supporting the Arizona restrictions.

(Reporting by Andrew Chung; Editing by Will Dunham)

U.S. Supreme Court weighs scope of police power to enter homes without a warrant

By Lawrence Hurley

WASHINGTON (Reuters) – U.S. Supreme Court justices on Wednesday appeared reluctant to give police unlimited power to enter a home without a warrant when pursuing a suspect for a minor crime in a case involving a California driver tailed by an officer after honking his horn while listening to music.

The driver, Arthur Lange, was later convicted of driving under the influence after being confronted inside his garage by California highway patrol officer Aaron Weikert in 2016. Lange is seeking to overturn his conviction by arguing that sobriety test evidence in the case was obtained by Weikert in violation of the U.S. Constitution’s Fourth Amendment ban on unreasonable searches and seizures.

The nine justices heard arguments in the case and are due to rule by the end of June. A broad decision finding that any police pursuit, whatever the nature of the suspected offense, justifies a warrantless entry appears unlikely based on comments by the justices.

“It seems ridiculous when your home isn’t your castle for terribly minor things,” liberal Justice Stephen Breyer said.

Conservative Chief Justice John Roberts raised the example of teenagers fleeing back to their homes after being caught drinking beer in a park as an example of a situation in which warrantless entry would be inappropriate.

“It doesn’t seem to be something that would warrant the officer, you know, breaking into the house,” Roberts said.

After observing Lange driving and honking his horn, Weikert began following him and intended to stop him for violating local noise restrictions, a minor infraction that carries small fines, but did not immediately turn on the police vehicle’s emergency lights, according to filings in the case.

Lange was already in his driveway when the officer caught up with him and activated his emergency lights. Weikert pulled into the driveway as Lange was driving his car into his garage. Lange later said he did not know the officer had been following him.

The garage door was just about to close when Weikert stuck his foot under the door, preventing it from shutting.

Weikert said he smelled alcohol and ordered Lange to take a sobriety test. Lange was found to be more than three times over the legal limit and was charged with driving under the influence (DUI) and a noise infraction.

Lower courts ruled against Lange, deeming the incident a “hot pursuit” that allowed a warrantless entry. The justices potentially could rule that the incident was not a “hot pursuit,” meaning a warrant would have been needed.

Conservative Justice Clarence Thomas referred to it as a “kind of meandering pursuit.”

Such a ruling still could allow police to enter houses without warrants in certain circumstances even if the underlying crime was a misdemeanor.

Lange pleaded no contest to the DUI offense and was sentenced to 30 days in jail and three years of probation.

The California Court of Appeals in 2019 upheld Lange’s conviction. Lange then asked the Supreme Court to rule that police officers cannot evade the warrant requirement when chasing someone to their home when the underlying conduct constitutes a misdemeanor offense.

Under Supreme Court precedent, officers can enter a home without a warrant when they are in pursuit of a suspected felon.

The issue of police powers has been in the spotlight particularly during protests in many cities last year against police brutality and racism. A broad ruling in favor of police could further expand their powers by widening their ability to enter homes without a warrant after pursuing people suspected of misdemeanor offenses, not just felonies.

(Reporting by Lawrence Hurley; Editing by Will Dunham)