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US Supreme Court Tag

Posted by Jonathan Levin on January 11, 2016 29 Comments
The Supreme Court's 2016 schedule begins this morning with oral arguments in a dispute over public union dues.  In Friedrichs v. California Teachers Association the Court is asked to strike down two rules that that artificially prop-up public sector unions. First, the Plaintiff challenges a California statute imposing “agency shop agreements” under which non-union members must nevertheless pay the union for its collective bargaining services. Second, Plaintiffs seek to reverse California law that requires all employees to pay the union for non-bargaining activities unless they opt out each year, asking that the burden be reversed to require annual opt-ins for those who wish to contribute. Both challenges are brought under the 1st Amendment’s implied freedom of association, as incorporated to the states through the 14th Amendment.

Posted by Jonathan Levin on December 11, 2015 12 Comments
Notwithstanding a modest consensus that affirmative action is doomed after Wednesday's arguments in Fisher v. University of Texas at Austin, there are hints the Court might delay a substantive decision, dissatisfying all parties. For background on the case, see Legal Insurrection's preview, here.  The full transcript of Wednesday's oral arguments is here. There were a number of tense and emotional moments both between the Justices and the parties' attorneys and among the Justices themselves.  From the tenor of the questioning, it is likely the University of Texas's ("UT") admissions system will be struck down despite its minimal reliance on race, if the case is decided on its merits.  If so, the result may explicitly or implicitly ban affirmative action on the basis of race in public university admissions. But the Court, including presumptive deciding vote Justice Kennedy, repeatedly returned to procedural issues.

Posted by Jonathan Levin on December 08, 2015 10 Comments
The United States Supreme Court will revisit affirmative action in public university admissions on Wednesday, when Fisher v. University of Texas at Austin returns to the high court for the second time. As the Supreme Court previously explained, the University of Texas ("UT") has a two-part admissions system.  First, under Texas’s statutory "Top Ten Percent Law," any student graduating from a Texas high school in the top 10% of their class is automatically admitted. Second, students not admitted pursuant to the Top Ten Percent Law are given numerical Personal Achievement scores by combining academic achievement and a “Personal Achievement Index” (“PAI”).  The PAI:
measures a student’s leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s back-ground. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.
From 1997 to 2003, the PAI had no racial consideration.  UT admissions were entirely race neutral.

Posted by Kemberlee Kaye on November 13, 2015 6 Comments
The Supreme Court agreed to consider the constitutionality of a 2013 Texas law (HB 2) that resulted in the closure of half the state's abortion clinics, according to SCOTUS blog. The earliest Whole Women's Health vs. Cole would be heard is February. The issue:
Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.
According to the pro-life advocacy group, Texas Right to Life, "until SCOTUS completes a review of the constitutionality of HB 2, the law’s safety standards are delayed from taking effect in Texas."

Posted by Leslie Eastman on October 27, 2015 34 Comments
We recently reported that Obamacare Co-Ops have been dropping like dead, rotting flies. Now, in the wake of the continued failures of program implementation, a new challenge has been filed with the Supreme Court:
Foes of President Obama's health care law are taking another crack at upending the legislation, filing a new challenge with the Supreme Court after a separate long-shot case was rejected earlier this year. The petition filed Monday by the Pacific Legal Foundation, like the prior challenge, focuses on an obscure aspect of the law. The case contends ObamaCare violates the provision of the Constitution that requires tax-raising bills to originate in the House of Representatives.

Posted by Fuzzy Slippers on October 25, 2015 26 Comments
Ted Cruz has hit third place (behind Carson and Trump) and double-digits in Iowa.  He's taken over Rubio's third place spot according to Bloomberg.
Texas Senator Ted Cruz, at 10 percent, is the only other candidate [besides Carson and Trump] in double digits. He's followed by Florida Senator Marco Rubio at 9 percent. The horse-race numbers for the top four mirror a Quinnipiac University poll released Thursday, with the main exception being that the earlier poll had Rubio in third place with 13 percent.
As he continues to campaign in Iowa, Cruz emphasizes the import of the 2016 presidential election.  He tweets:

Posted by Amy Miller on September 21, 2015 3 Comments
Last week I had the privilege of attending the Cato Institute's Constitution Day event covering the October 2014 and 2015 Supreme Court terms. It was a wonkishly good time, and afforded me the opportunity to both soak in some new insight on the Court, and kick off analysis and prediction posts for the upcoming Supreme Court term. Overall, the presenters and panelists don't expect the upcoming term to bring us as many "blockbuster" cases. Last term was defined by the shadow of Obergefell and the question of gay marriage; we knew it was coming all term, and its prominence in the hearts and minds of the American people shunted to the side even the important rulings concerning Obamacare and the Fair Housing Act. Still, this term still has the potential to inspire some scorching takes from both wings of the media on the Clean Water Act, wiretapping laws, religious freedom, and abortion laws. We still have a ways to go before we get to examine a full docket, so stay tuned. Cato did a great job of making their presentation accessible to both attorneys and non-attorneys, which (from my experience) is rare for events held by true think tanks. The presentations on Executive power, civil rights, and the state vs. the individual were all 100% relevant with regards to the legal philosophy discussed, and its application to the situations we see and experience every day.

Posted by Kemberlee Kaye on September 02, 2015 168 Comments
In Kentucky, a county clerk refusing to issue same-sex marriage licenses despite the Supreme Court's recent ruling has made her way into national headlines. Rowan County Clerk Kim Davis claims her religious beliefs have created an issue of conscience which prohibits her from participating in or condoning gay marriage. Citing God's authority, Davis has stopped issuing all marriage licenses. The whole affair turned into one horrid media circus:
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Posted by William A. Jacobson on August 28, 2015 21 Comments
The effort by liberal media to delegitimize Clarence Thomas as a powerful legal scholar is not new. From his confirmation hearings through to the present, Thomas has endured relentless denigration of his intellect in places like The NY Times. Yesterday brought a stark example. NYT Supreme Court reporter Adam Liptak has an article focusing on the frequency of Thomas using language in his writing similar to briefs submitted by parties, amicus briefs, and lower court opinions, Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own. http://www.nytimes.com/2015/08/28/us/justice-clarence-thomas-rulings-studies.html?_r=0 Someone casually reading the headline would suspect Thomas of plagiarism (in spirit, if not technically) and being unique among the Justices. The Headline matters -- Thomas alone is singled out. The opening paragraphs of the article seem damning:

Posted by William A. Jacobson on August 01, 2015 20 Comments
A New York State Judge recently denied an attempt by a group acting for Tommy the Chimp to obtain habeas corpus relief. (Full embed at bottom of post.) But in so denying relief, the judge predicted possible future change citing the U.S. Supreme Court's decision in the same-sex marriage case. #Seriously. Now we have covered the slippery slope as much as anyone in the area of polygamy and polyamorous clusters, including in light of the recent Supreme Court ruling on same-sex marriage: But there's the slippery slope, and then there's this slippery slope as reported by Slate: https://twitter.com/Slate/status/627600511492063232 Don't worry, it's not as bad as the tweet makes it sound, depending on what the definition of "bad" is:

Posted by William A. Jacobson on July 19, 2015 26 Comments
After the recent Supreme Court ruling on "disparate impact" in housing, Amy predicted that social justice activists and lawyers had been given powerful precedent to use racial and ethnic data mining against developers who did not intentionally discriminate:
When the Supreme Court handed down its ruling in Texas Department of Housing v. Inclusive Communities Project last week, social justice activists claimed a major victory in the battle against segregated housing. The decision endorsed a “disparate impact” analysis as applied to a Texas program that plaintiffs claimed distributes federal low income housing credits disproportionately, awarding too many credits to inner-city, predominately black neighborhoods and too few to suburban, predominately white neighborhoods.... Kennedy and the majority endorsed a form of social engineering just as pernicious as those that disparate impact analyses aim to correct. Instead of creating “more equality,” these methods do nothing but invent controversies for social justice groups and the courts to work out, and, as Clarence Thomas says, presume that defendants are “guilty of discrimination until proved innocent.”
In the NY Post, Paul Sperry of the Hoover Institution, highlights how massive data mining by numerous branches of the Obama administration is set to light a fire nationwide even where there is no government-sponsored, or intentional private discrimination in order to recreate communities and businesses, Obama collecting personal data for a secret race database:

Posted by Amy Miller on July 10, 2015 13 Comments
Conservatives had a tough go 'round at the Supreme Court this term. Obamacare, gay marriage, and questionable disparate impact analyses were all propped up by a divided court, causing prominent pundits to question the state of the Court, the wisdom of lifetime appointments, and the intentions of Republican-appointed Anthony Kennedy. The Court, for all its successes and failings, serves as both beacon and barometer for the general population. While lawyers pour over briefs and opinions, and argue about pendulums, most people swallow up on-site media reports and adjust their attitudes according to which justice said what. Mainstream SCOTUS watching, then, has become less of an intellectual exercise, and more of an exercise in pop culture fandom---which has had more of an effect on the Court than you would think. During a recent interview with NPR, liberal justice Ruth Bader Ginsburg offered some insight into the Court's left wing, and described how her colleagues maximize the impact of their opinions---even when they find themselves in the minority, as they did in the landmark Bush v. Gore. Via NPR:
The time pressure in the [Bush v. Gore] case was excruciating, with the court issuing an opinion just a day after oral arguments, and, as Ginsburg put it, the four liberal members of the court "were unable to get together and write one opinion." Indeed, each wrote a separate dissent, resulting in such confusion that, as she pointed out, some early press accounts erroneously reported that the decision was 7-2, not as it in fact was, 5-4. After that experience, "we agreed," said Ginsburg, that "when we are in that situation again, let's be in one opinion." It's important, she added, because the public and the lower courts need to know what the court has done or not done. And neither lawyers nor judges will stick with opinions that go on and on.

Posted by Amy Miller on July 08, 2015 28 Comments
Earlier this month, the Supreme Court (am I allowed to call it the "Kennedy Court" yet? That would be fun...) made serious waves in the administrative law world when it handed down a ruling that will make it much easier for activists to prove local-level discrimination against minority candidates for low income housing. Even Justice Kennedy, who led the majority's charge in favor of an expanded disparate impact analysis, was forced to admit that the ruling could cause an eventual return to racial quota systems. We're not quite there yet, but rest assured---the crack team at Housing and Urban Development, led by San Antonio golden boy Julian Castro, is keeping an eye on things. A new rule, floated by HUD and released today by the Obama Administration, will require cities and towns to to look for patterns of racial bias in local housing. Officials will then be forced to report every 3 to 5 years on the state of the housing market, and self-set goals for reducing segregation in their jurisdictions. This information won't just go into a bureaucratic vacuum; instead, it'll head straight for---you guessed it---another government database. WaPo explains:

Posted by William A. Jacobson on July 03, 2015 21 Comments
On June 30, 2015, I appeared on the Joe Thomas Show on WCHV in Charlottesville, VA, to talk about the state of the Supreme Court, and the two recent blockbuster decisions in gay marriage and Obamacare. We touched on the rulings, the reaction, and proposals to put limits on the Court, such as judicial-retention elections suggested by Ted Cruz, and proposals for term limits. The article I reference during the interview is from Roll Call, Reagan Aides Foresaw Kennedy Gay-Rights Views That Conservatives Now Lament. Bottom line: We have reached the point of absurdity when the nation waits anxiously to find out how one person -- the swing vote on the court -- will vote on issues that decide the course of the nation.
"Think how absurd it is for a nation to be waiting by the radio, or the TV, or nowadays the internet, how is the Supreme Court going to decide an issue as fundamental as the issue of marriage, and everybody knew it would come down to one vote. So we're waiting on one person to decide the future of our country, and whether you like it or not, if you like the decision, what if it had gone the other way by one vote, how would you feel? So I think we really do have a situation where so many things are decided by a single vote in the Supreme Court that we really have to wonder if that's how we want to run our lives as a nation."
Society no longer is governed by "one person, one vote," but by one person's vote. This is no way to run a country. Here's the audio below:

Posted by Amy Miller on July 02, 2015 14 Comments
When the Supreme Court handed down its ruling in Texas Department of Housing v. Inclusive Communities Project last week, social justice activists claimed a major victory in the battle against segregated housing. The decision endorsed a "disparate impact" analysis as applied to a Texas program that plaintiffs claimed distributes federal low income housing credits disproportionately, awarding too many credits to inner-city, predominately black neighborhoods and too few to suburban, predominately white neighborhoods. The Inclusive Communities Project, plaintiffs to the case, said that the government had actually caused continued racial segregation in the Dallas area via its credit allocation program, and sued to force the State of Texas to alter their selection criteria to encourage the construction of low income housing in suburban communities. The playing field changed mid-posture when the HUD secretary issued a regulation interpreting the Fair Housing Act to encompass disparate impact liability and instituted a burden-shifting framework that would make it easier for plaintiffs trying to prove instances of subtle discrimination. Regulatory tango aside, ICP's argument won at the Supreme Court in a 5-4 decision authored by Justice Kennedy and joined by the usual, left-leaning suspects. Back in January, Tulane Law prof Stacy E. Seicshnaydre and Inclusive Communities Project board member laid out better than I could the social justice argument that the plaintiffs brought to the Court:

Posted by Kemberlee Kaye on July 02, 2015 41 Comments
Why, Mr. Sulu? WHY? George Takei of Star Trek fame made a wild accusation in an interview with Phoenix-based Fox affiliate. The televised portion of the interview went as you'd expect: long-time gay rights advocate is thrilled with advances in gay rights. "We're overjoyed, we're proud, and we feel fully American," said Takei. George discussed having to stay in the closet so he could have a career in Hollywood and the disappointment he felt when Governor Schwarzenegger vetoed California's gay marriage legislation. "We're doing this for the straight couples of today because they're going to having the gay babies of tomorrow and they won't have to have those discussions." The televised interview:

Posted by Mike LaChance on June 30, 2015 48 Comments
Charles Krauthammer appeared on the O'Reilly Factor last night and was asked by Bill O'Reilly to name three reasons for the recent rapid changes in America, with a focus on recent U.S. Supreme Court cases. Krauthammer cited culture as one of the reasons and he's absolutely right. Andrew Breitbart frequently voiced his belief that politics is downstream from culture. Watch the entire exchange below: Krauthammer recently called the SCOTUS ruling on gay marriage a loss for democracy.

Posted by Jay Caruso on June 30, 2015 23 Comments
The Supreme Court ruled against the Environmental Protection Agency 5-4 this week, saying the EPA erred in not considering costs when implementing new regulations governing toxic emissions from coal-fired power plants:
The 5-4 decision Monday went against an Environmental Protection Agency mercury rule that forces utilities to shutter old coal plants or invest billions of dollars in equipment to clean up the emissions from their smokestacks. The court said the EPA should have considered the costs and benefits before deciding whether to impose those limits on the toxic emissions. “The agency must consider cost -— including, most importantly, cost of compliance -— before deciding whether regulation is appropriate and necessary,” Justice Antonin Scalia wrote in the majority opinion. “Reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.”
Ironically, the rule could stay on the books while the EPA performs the analysis:
The decision to send the regulation back to a lower court to decide what happens next leaves open the possibility that the 2011 rule, called the mercury and air toxics regulation, could be left on the books while the agency does the analysis that the high court said it should have done long ago. It could take a few months for that lower-court decision.
Despite the victory, it may have come at a cost that is too late to recover. The rule went into place several years ago and the impact has taken its toll:
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