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4th Circuit bats .500 at Supreme Court, strikes out in ‘Peace Cross’

The intermediate U.S. appeals court that reviews federal cases from Maryland and four nearby states batted .500 at the Supreme Court this past term.

The 4th U.S. Circuit Court of Appeals most notably struck out when the justices overturned its ruling that a cross erected as a war memorial on public land in Bladensburg violates the constitutional separation of church and state.

Of the four cases it heard from the 4th Circuit, the Supreme Court upheld two during the 2018-2019 term, which ended last month.

The Bladensburg case was the only one of the four 4th Circuit cases that originated in a Maryland U.S. District Court.

In its 7-2 decision, the Supreme Court ruled that the 40-foot-tall “Peace Cross” does not violate the First Amendment and can remain standing because it has the secular purpose of honoring patriotic sacrifice.

The ruling reversed the 4th Circuit’s holding that the cross is the quintessential symbol of Christianity and cannot be separated from its link to that religion.

(The justices rendered their decision in the consolidated cases The American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association, Nos. 17-1717 and 18-18.)

The 4th Circuit’s 50% affirmance record at the Supreme Court is a nearly annual occurrence. The appellate court has hit that figure in five of the past six Supreme Court terms, missing out only in the 2017-2018 session, according to SCOTUSblog, an online news service that compiles data on the high court.

In that term, the 4th was the only one of the 13 U.S. Circuit Courts of Appeals not to have a case heard by the Supreme Court, SCOTUSblog found.

The 4th Circuit’s 50% affirmance rate this past term outpaced the national average, as the Supreme Court upheld lower court rulings in 35.14% of the cases it heard, according to data from the online service.

Of the 74 cases the Supreme Court heard this past term, 5% originated in the 4th Circuit, which also covers Virginia, West Virginia and the Carolinas.

“At least the 4th Circuit is batting .500,” said appellate attorney J. Bradford McCullough, of Lerch, Early & Brewer Chtd. in Bethesda. “If you look at the 9th Circuit, which was reversed nearly 86 percent of the time, we’re looking pretty good.”

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada,  Oregon and Washington.

Quite apart from its review of 4th Circuit cases, the Supreme Court reversed a decision by a three-judge panel of the U.S. District Court for Maryland that the state’s Democratic leadership had violated the constitutional right of Republican voters to political association by redrawing the state’s 6th Congressional District in a successful attempt to sap their votes and organizational activities while ensuring a Democrat’s election in that westernmost district.

The high court, by a 5-4 vote, said the issue of congressional redistricting is beyond the scope of the federal courts because it involves a political question that must be left to elected representatives. (Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726.)

In one notable case not reflected in the statistics, the Supreme Court this past term chose not to hear the 4th Circuit’s decision that Maryland’s statutory effort to regulate generic drug transactions occurring outside the state violated the Constitution’s Commerce Clause. The clause holds that regulations on interstate commerce are the province of Congress, not state legislatures, the 4th Circuit ruled.

The justices’ decision to let a lower court’s holding stand without a comment is not a ruling on the merits and does not factor in the 4th Circuit’s record of affirmances and reversals before the Supreme Court last term. (Brian E. Frosh et al. v. Association for Accessible Medicines, No. 18-546.)

The three other 4th Circuit cases heard by the Supreme Court originated in Virginia, North Carolina and West Virginia.

In the Virginia case, the Supreme Court ruled for environmentalists in affirming the 4th Circuit’s decision that the state’s prohibition on uranium mining is not trumped by the federal Atomic Energy Act. (Virginia Uranium Inc. v. Warren, No. 16-1275.)

In the North Carolina case, the justices affirmed the 4th Circuit’s decision that third-party counterclaim defendants cannot seek to have civil litigation removed to federal court, as removal is reserved for the defendant named by the plaintiff. (Home Depot U.S.A. Inc. v. Jackson, No. 1471.)

In the West Virginia case, the justices vacated the 4th Circuit’s holding that the producers of the Physicians’ Desk Reference had engaged in an “unsolicited advertisement” – as defined by federal regulation – when they faxed news of the book’s availability to a chiropractic practice. (PDR Network LLC v. Carlton & Harris Chiropractic Inc., No. 17-1705.)

SCOTUSblog data also showed the following:

  • The 4th Circuit’s 50% affirmance rate this past term placed it in a fourth-place tie among the 13 Circuit Courts of Appeals, along with the 1st, 5th, 10th and Federal Circuit Courts of Appeals. (The 1st Circuit covers Maine, Massachusetts, New Hampshire and Rhode Island; the 5th covers Louisiana, Mississippi and Texas; and the 10th covers Colorado, Kansas, New Mexico, Utah, Oklahoma and Wyoming.)
  • The U.S. Circuit Court of Appeals for the District of Columbia had the highest affirmance rate at the Supreme Court, with 66.67%.
  • The 6th and 11th Circuits tied for second place, with a 57.14% affirmance rate. (The 6th Circuit covers Kentucky, Michigan, Ohio and Tennessee; the 11th covers Alabama, Florida and Georgia.)
  • The lowest affirmance rate, 0%, was recorded by the 7th Circuit, which covers Illinois, Indiana and Wisconsin. The justices reversed in the one appeal they heard.

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