Justice Breyer underwent shoulder surgery over the weekend following a bike accident. According to the New York Times, he is expected to recover fully. We wish him a speedy recovery.
Monthly Archives: April 2013
A hint on Hollingsworth from a criminal case?
Case:
At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been “properly granted” and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four — it takes four votes to grant certiorari — would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG’ed a case involving a criminal defendant’s challenge to his conviction over the dissents of the four liberal justices.
There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices — generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG’ed Hollingsworth should not lead to the conclusion that it won’t.
Losing at oral argument?
Case:
Last week, the Supreme Court issued a decision in Missouri v. McNeely. The Court rejected the argument that the police are always entitled to draw blood from a DUI suspect because the blood alcohol level will dissipate while the officer waits for a warrant. The case and its opinions are interesting in their own right, but I was particularly struck by one of Tom Goldstein’s comments on the SCOTUSblog live blog of the opinion hand-down. Tom noted that this case may be an example of losing at oral argument due to “complete absolutism.” Listen for yourself and see what you think.
Congrats to Scotusblog
Scotusblog.com has received a press credential for veteran reporter Lyle Denniston. This credential — actually issued by the Senate Press Gallery, not the Supreme Court itself — is long overdue and well-deserved.
A Sharp Dissent
Yesterday, the Court announced its opinion in the case of Genesis Health Care v. Symczyk. In a 5-4 decision, the Court held that if a plaintiff’s individual claim becomes moot before a collective action is certified in a Fair Labor Standard Act case, the whole case is moot. But the Court assumed, without deciding, that the plaintiff’s claim in fact was moot. In a remarkably conversational dissent, Justice Kagan asks, “But what if that premise is bogus?” She goes on to explain that the plaintiff’s claim in this case was not in fact moot, making the majority opinion “the most one-off of one-offs” and “fit for nothing,” and she argues that the majority is “wrong, wrong, and wrong again.” Could Justice Kagan be vying to rival Justice Scalia in the quotability and sharpness of her dissents?
Salinas v. Texas: When does the Self-incrimination Clause apply?
Case:
Prof. Sanford Greenberg discusses the Supreme Court’s upcoming review of whether the Constitution’s protection against self-incrimination applies before an individual has been arrested or read his rights.
Assn. for Molecular Pathology v. Myriad: Can human genes be patented?
Case:
Association for Molecular Pathology v. Myriad Genetics
Prof. Lori Andrews discusses an upcoming intellectual property case dealing with whether human genes can be patented.
How the Supreme Court Operates
Listen here (go to “Making Tough Decisions: Inside the Supreme Court on March 31, 2013) to hear a discussion of how the Supreme Court operates and the ways in which changes in society affect the justices. I am one of two interviewees on the segment.