Supreme Court Update for Banking and Financial Services Professionals

by Charles W. Prueter & Manning T. Russell

“Celebrities: They’re just like us!” 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 — just like us! — makes us feel known. As if the worldly activities of the stars somehow validate our own daily lives. For Court-watchers in particular, there’s a similar comfort: “The Justices: They’re just like us!” 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’s 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 — just like us!

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:

In American Legion v. American Humanist Association, No. 17-1717, or the “Bladensburg Cross” case, the Court took up the ever-controversial intersection of faith and public life. As the Court described it, since 1925, the “Bladensburg Peace Cross” has stood in Prince George’s 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 “respecting an establishment of religion.” The American Humanist Association wanted the Cross to be torn down, and the litigation made its way to the Supreme Court.

In a splintered opinion, the Court, through justice Samual Alito, upheld the constitutionality of the Bladensburg Cross, explaining that “a 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.” Moreover, the Court reasoned that war memorials, like the Cross, are just that — war memorials, for which religious associations may no longer be at the forefont. While the Court’s 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’re all probably here to stay — although new construction with public dollars certainly would be a different story.

In Kisor v. Wilkie, No. 16-1929, the Court reconsidered a doctrine under which federal courts defer to an agency’s 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’s 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 “genuinely ambiguous.” Thus, the agency’s power to make up the law as it goes is not completely unlimited!

Rucho v. Common Cause, No. 18-422, 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 “partisan gerrymandering.” 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 — 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 — 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 “punt,” declined to decide the question, concluding that partisan gerrymandering claims are not “justiciable” — i.e., cannot be decided — 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!

In Department of Commerce v. New York, No. 18-966, the Supreme Court — in a decision authored by Chief Justice John Roberts — temporarily prevented the census from including a citizenship question. The Court noted that while the census could potentially 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  an opportunity to provide a more sincere explanation as to why the question should be included.

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

Charles W. Prueter is a trial and appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at

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.