Monthly Archives: February 2015

Weekly Roundup

Weekly Roundup – February 27, 2015

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

In The New York Times, Adam Liptak reviews the Supreme Court’s position on the standing doctrine, which will be at issue in the upcoming case challenging Obamacare.

Arguments in Wednesday’s EEOC v. Abercrombie & Fitch centered on a question of responsibility: is it an employer’s or employee’s duty to identify potential conflicts that might arise from a company’s policies and an individual’s religious practices?

Should law firms have to pay the expensive bills that accrue in bankruptcy cases? The Court heard both sides of the issue in Wednesday’s Baker Botts v. ASARCO.

A fish is not a “tangible object,” according to the Court’s decision in US v. Yates—meaning that fisherman John Yates will not be held accountable for tampering with evidence when he disposed of undersized fish while being investigated for violating federal regulations.

In another ruling this week, the Court held that North Carolina’s dental board cannot regulate teeth whitening businesses, a decision that could change the makeup of similar boards across the country.

At SCOTUSblog, Professor Barbara Babcock reviews The Legacy of Ruth Bader Ginsburg, a new book by Scott Dodson.

Next week, the Court will hear a case that could set a new precedent for how child abuse is reported.

Steven Heyman guest blogs for ISCOTUSnow with a post examining the conservative-libertarian turn in First Amendment jurisprudence at the Supreme Court.

OT 2014, Predicting the Winners

Predicting the Winners in EEOC v. Abercrombie & Fitch and Baker Botts v. ASARCO

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The Supreme Court heard two oral arguments on Wednesday.  I’m predicting the winners based on the method of counting the number of questions.  After 17 decisions handed down, my predictions have been correct 65% of the time, which means I have fallen off after going 100% correct in the first 6 decisions.

The first case, EEOC v. Abercrombie & Fitch, asks whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Figure 1.

Slide1

As Figure 1 shows, the total question count favors the Petitioner (Solicitor General for the EEOC): the SG received 43 questions, while the Respondent (Abercrombie) received 48 questions.

The question count by Justice indicates a split along ideological lines.  The 4 liberal Justices asked Abercrombie more questions, which favors the SG: Ginsburg (+8), Breyer (+9), Sotomayor (+6), and Kagan (+1).  Three of the conservative Justices asked the SG more questions: Roberts (+3), Scalia (+15) and Kennedy (+5).

Justice Alito appears to be the key vote.  Departing from the conservatives, he asked the Respondent 4 more questions, which at least suggests a possible leaning to the SG’s position.  It would be a little surprising to have a block of Justice Alito and the four liberal Justices.  But, based on both the total question count and question count by individual Justice, I’ll go with a victory for the EEOC (SG), which sought a reversal of the Tenth Circuit’s decision.

The second case, Baker Botts LLP v. ASARCO, LLC, asks whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.

Figure 2.

Slide2

As Figure 2 shows, the total question count favors the Respondent ASARCO: the Petitioner’s side received 49 questions (Petitioner Baker Botts received 28 questions, the SG as amicus curiae supporting Petitioner received 21 questions), while the Respondent received 30 questions.  The 19 more questions to the Petitioner’s side is a large difference, even when discounting for the fact that the Petitioner’s side had two attorneys (which may inflate somewhat the number of questions for that side).  Unless the Justices were just tired in asking the Respondent questions as the last advocate in the last oral argument for the month of February, their relative lack of questions for the Respondent (30 questions is a small amount, below the mean for oral argument) seems to bode well for that side.  I’ll go with a win for the Respondent (ASARCO).

 

 

First Amendment, History of the Court, Justices

The Conservative Justices, the Constitution, and the First Amendment

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This post is based on The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014), which Professor Heyman recently presented as the Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at West Virginia University College of Law.

In recent years, a conservative majority of the Supreme Court has issued a raft of decisions that have cheered the right and dismayed the left. To name only a few, District of Columbia v. Heller (2008) declared that the Second Amendment guarantees an individual right to own firearms. Citizens United v. Federal Election Comm’n (2010) and McCutcheon v. Federal Election Comm’n (2014) struck down key limitations on the ability of corporations and wealthy individuals to dominate the political process. And Burwell v. Hobby Lobby (2014) held that, under the Religious Freedom Restoration Act, family-owned corporations have a right to religious liberty which permits them to deny contraceptive coverage to their female employees.

Decisions like this clearly align with the political attitudes of the Justices. But I believe that these decisions also can be understood to reflect a deeper political and constitutional theory. To see this point, we must recognize that the conservative view of the Constitution is not monolithic, but includes two different strands. The first strand is a traditional conservative position which supports the government’s authority to enforce law and order and to promote traditional moral and social values. In contrast, the second strand is a libertarian position which emphasizes the need to protect individual freedom against government regulation. It is this second strand of conservative ideology that accounts for the decisions on gun ownership, campaign spending, and religious liberty that I have mentioned. This strand also underlies recent decisions that expand protection for property rights, cut back on affirmative action, and impose limits on the welfare state and the power of the federal government.

As Citizens United and McCutcheon show, this conservative-libertarian view is also one of the most powerful currents in contemporary First Amendment jurisprudence. A leading case is American Booksellers Ass’n v. Hudnut (7th Cir. 1985), which struck down a feminist anti-pornography ordinance. Judge Frank H. Easterbrook ruled that the state may regulate sexually explicit material to protect traditional morality, but not to promote gender equality – a rationale that he condemned as a form of authoritarian “thought control.” Likewise, in R.A.V. v. City of St. Paul (1992), Justice Antonin Scalia treated a city’s ban on cross-burning as an impermissible effort to impose political correctness by punishing the expression of racist ideas. And in Boy Scouts of America v. Dale (2000), Chief Justice William H. Rehnquist ruled that the First Amendment right to freedom of association permitted the Scouts to deny membership to gay persons on moral grounds. In all of these cases – most of which were decided by a vote of five to four – conservative judges used the First Amendment to protect their conception of individual liberty against laws that sought to promote social values like dignity, equality, and community.

The conservative-libertarian approach has made some valuable contributions to First Amendment jurisprudence. I believe that the conservative Justices are right to hold in cases like Rosenberger v. Rector & Visitors of the University of Virginia (1995) that public schools and universities may not discriminate against religious speakers, but must grant them the same rights and benefits they afford to other speakers. The libertarian outlook of the conservative Justices also may have helped to prevent a recurrence after 9/11 of the official suppression of radical speech that marred American law during the Cold War era.

Yet I also believe that the conservative-libertarian approach to the First Amendment has several serious flaws. The first problem is that cases like Citizens United and McCutcheon draw too close a connection between free speech and property rights and fail to recognize the ways in which unrestrained political spending and contributions can distort and undermine the democratic process. Second, decisions like Hudnut and R.A.V. extend too much protection to speech that injures, abuses, or degrades other people. Third, the judges we are discussing tend to be social conservatives as well as libertarians, and deep problems arise when these two aspects of conservative thought collide with one another, as they have in recent cases involving animal cruelty, violent video games, and Internet pornography. Fourth, by upholding traditional restrictions on expression, such as the obscenity doctrine, while striking down regulations that reflect liberal or progressive values, the conservative-libertarian approach fails to satisfy its own demand for ideological neutrality. And finally, the conservative-libertarian commitment to protecting free speech against the government focuses on individuals within the private sphere and not on those within governmental institutions. As a result, the approach tends to deny protection to those groups who are most vulnerable to state control, such as prisoners, public employees, and those who serve in the military.

The root problem is that the conservative-libertarian approach is based on an overly narrow and one-sided view of the self – a view that stresses the ways in which we are separate and independent individuals, but that fails to adequately recognize the social dimension of human life. We need to develop an approach to the First Amendment that is based on a broader and richer conception of the self, the society, and the nature of constitutional freedom. I call this approach liberal humanism. Like conservative libertarianism, this view stresses the value of liberty. But it understands liberty not merely in negative terms – as freedom from government intrusion or regulation – but also in more positive terms, as the capacity to pursue the full development and realization of the self, through one’s own individual activities as well as through social relationships and participation in the community. On this view, there is no inherent conflict between the value of individual liberty and social values such as dignity, equality, and community. Instead, the law should seek to reconcile these values with one another.

Free speech has both an individual and a social dimension: when individuals communicate with one another, they not only are engaging in self-expression but also are participating in a form of social interaction. It follows that the right to free speech carries with it a duty to respect the personality of others and their status as members of the community. For this reason, I would argue that the law should be allowed to impose reasonable restrictions on speech that injures, abuses, or degrades other people, including some forms of racist hate speech and violent pornography. Similarly, the right to free association should not necessarily empower groups who play a central role in the community, such as the Boy Scouts, to exclude individuals on invidious grounds like sexual orientation. Finally, the liberal-humanist view conceives of political speech as democratic deliberation among free and equal citizens, and thus would support some restrictions on activity that undermines our ability to engage in that process, such as unlimited electoral spending by corporations and wealthy individuals. In this way, we can reconcile First Amendment freedoms with other values that are essential to a liberal democratic society.

OT 2014, Predicting the Winners

Predicting the Winners in Kerry v. Din and Coleman v. Tollefson

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On Monday, the Supreme Court heard oral argument in two cases.  The Court was somewhat light in asking questions after several weeks off from oral argument. I’m predicting the winners based on the method of counting the number of questions.  After going a perfect 6 for 6 in calling the first decisions handed down, I had a rocky month of January and am now 9 for 14 (64%) in my predictions.  That’s not a great percentage.  Let’s hope I can turn things around, but the Court hasn’t made things easy for me this Term.  Today’s cases are no exceptions.

The first case, Kerry v. Din,  asks: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Figure 1.

Slide1

As Figure 1 shows, the total question count was pretty even: 44 questions for the Petitioner Solicitor General and 47 questions for the Respondent (Din).  The lower question count slightly favors the SG, but the difference is modest.  Part of the disparity arose from Chief Justice Roberts asking 12 questions to the Respondent and none to the Petitioner.   Five Justices, in fact, asked the Petitioner more questions: Kennedy (+2), Ginsburg (+2), Breyer (+8), Sotomayer (+3), and Kagan (+1).  Although the differentials (except for Justice Breyer) are also small, they favor the Respondent.   By contrast, Chief Justice Roberts  and Justice Alito appeared strongly leaning to the Petitioner (SG), asking the Respondent 12 and 5 more questions, respectively.  Justice Scalia asked 2 more questions to the Respondent.  Based on the question count, the case is a close call.  But I’ll stick with the overall count, plus the strongest differentials by Justice (Roberts and Alito), which favor the Petitioner (SG).

The second case, Coleman v. Tollefson, asks whether, under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

Figure 2.

Slide2

As Figure 2 shows, the total question count slightly favors the Respondent (Michigan SG): 36 questions to the Petitioner (Coleman) and 33 questions total to the Respondent’s side (21 to the Respondent and 12 to the Solicitor General supporting the Respondent).

The question count by Justice indicates a likely break along ideological lines.  Three conservative Justices (Roberts, Scalia, Alito) asked the Petitioner (Coleman) more questions, suggesting a leaning to the Respondent’s side.  Four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) asked the Respondent’s side more questions.   Appearing to be the swing vote, Justice Kennedy asked both sides 3 questions.

So the case is a toss-up.  But I’ll go with the small lower total question count and say a victory for the Respondent (Michigan SG).

Weekly Roundup

Weekly Roundup – February 20, 2015

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Justice Ginsburg discussed her Court tenure, women’s rights, racism, and a dysfunctional Congress in an interview with MSNBC.

ISCOTUS director Chris Schmidt considers Justice Ginsburg’s celebrity turn, arguing that, while she is to be commended for engaging the public, she could be doing more.

In the LA Times, Michael Hiltzik opines that King v. Burwell—the impending Obamacare case—should never have been filed.

A look at the fraught history of housing discrimination in America, as the Court deliberates on an opinion in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

After Abigail Fisher, petitioner in 2013’s Fisher v. Texas, filed a new Supreme Court appeal last week, Linda Greenhouse in The New York Times considers whether the Court will again consider affirmative action.

On Wednesday, Mississippi asked the Supreme Court to review a lower court ruling which blocks a state abortion law.

How has President Obama fared against the court system, including the Supreme Court? Find out here.

Former Justice John Paul Stevens’s letter to the editor was published in The New York Times.

Justices, News, OT 2014

Half a Cheer for Justice Ginsburg’s Celebrity Turn

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Justice Ginsburg’s frequent and increasingly candid off-the-bench statements have elicited praise and condemnation from predictable sources. Fueled by social media, she has achieved an almost cultish celebrity status, her every remark cherished by her admirers, her face featured on “Notorious RBG” t-shirts. Although Justice Scalia has an army of faithful followers and Justice Sotomayor has been met with adoring crowds while promoting her autobiography, Justice Ginsburg’s recent turn of fame seems different—at once more effortless (on her part) and more intense (on her admirers’ part). Some sharply worded dissents in major cases; a defiant rebuttal to those who called for her, the 81-year-old justice, to step down so that President Obama could appoint her replacement; and a handful of pointed off-the-bench observations delivered in her soft-spoken way—that’s about all that she has done differently of late.

There are those eager to question the propriety of Justice Ginsburg’s recent remarks. Coming under particular fire are her comments expressing support for same-sex marriage, since the Court will be hearing a constitutional challenge to bans on same sex-marriage in April. In making these comments, she has crossed a line, some have said, abandoning a clearly established practice of Supreme Court justices letting their decisions speak for themselves. Some are even demanding that she recuse herself from the Court’s upcoming same-sex marriage case.

Some perspective here: These critiques are based on an inaccurate portrait of Supreme Court practice in the post-New Deal era. Although the public presence of the justices has waxed and waned somewhat in this period, the justices of the Supreme Court have a long record of public pronouncements on controversial issues, including issues facing the Court. If there is a norm of behavior for Supreme Court justices, Ginsburg has been well within its boundaries. Critics of extrajudicial statements are also nothing new. People have long claimed that various justices were threatening the legitimacy of the Court because of their extrajudicial statements. Yet the Court still stands, and the justices keep talking.

Rather than demanding some unrealistic and ahistorical monastic ideal for the members of the Court, we would do better to recognize the valuable role that justices can play when they come down from the bench to speak to the American people. Here is how I attempted to capture the value of extrajudicial speech in an article I wrote on this topic:

Even today, in a world of twenty-four-hour news cycles and over-exposed public figures, there is something distinctly powerful about a Supreme Court justice coming off the bench in order to express, directly to American public, his or her views on the Court, on the Constitution, on the role of a judge in a democracy. To be sure, a good deal of what justices say on these matters is banal and uninteresting—a kind of road tour of confirmation hearing talking points. But on occasion, a justice seems interested in doing something more. These moments, while not as rare as the justices and the press tend to claim, are uncommon enough so that when they do occur, the press, and a segment of the general public, take note. It is here that we find the potential of extrajudicial speech to add something distinctive to the public discourse.

Measured by this standard, I would say Justice Ginsburg deserves half a cheer for her recent celebrity forays. She is successfully engaging the public, sparking debate, educating her wide audience. But I wonder if too much of the discussion about Ginsburg, and much of the content of her interviews, revolve around her—her background, her experience on the Court, her coming out as a more passionate public voice of liberal values, her reason for staying on the Court. This is an important discussion—she is in many ways in inspiring figure. Her comments about her experiences as a female lawyer in a male-dominate profession offer important lessons in history, as does her discussion about her work as a pioneering litigator on behalf of women’s rights in the 1970s. But might there be an opportunity for engaging in a substantive discussion about the law and the role of the judge that is being lost in this fascination with personality?

When Justice Ginsburg talks about issues not related to her own experience, her comments seem to center on general observations about policy questions. Consider some of her most recycled lines from her recent MSNBC interview. She lamented the dysfunctionality of Congress. She referenced the intractability of racism in America. (“People who think you can wave a magic wand and the legacy of the past will be over are blind.”). She noted the effects of abortion restrictions on poor women.

Important points all, but they are points that could be made by any thoughtful, politically liberal public figure. Ginsburg gets a platform because she is a justice, yet she tends not to use this platform to discuss the issues that are particular to being a justice. We hear precious little about her views about the role of the Supreme Court in the American democracy. We hear little about her understanding of the process of legal interpretation. Why not use the platform to engage with these questions?

This is what Justice Hugo Black famously did when he took a public turn late in his long tenure on the Court. This is what Justice Scalia, at his provocative best, does. (Love him or hate him, he sparks debate about important issues relating to the role of the Court and approaches to constitutional interpretation.) This is what Justice Breyer aspires to do, even if he lacks the public persona and charisma to really pull it off.

But it is on this measure that I believe Justice Ginsburg’s recent media turn has come up short. Her public appearances seem to promise something more. Thus far, she and her adoring fans have not chosen to take advantage of this opportunity.

Weekly Roundup

Weekly Roundup – February 13, 2015

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

The Court’s decision on Monday not to block same-sex marriages from proceeding in Alabama has been seen by many as a strong indication of how the court intends to rule on the issue. Even President Obama predicts a Court decision legalizing same-sex marriage.

Alabama Supreme Court Chief Justice Roy S. Moore has wasted no time in defying the federal ruling that struck down the state’s prohibition of same-sex marriage. ISCOTUS director Chris Schmidt looks at other instances of federal court defiance in history, and how such episodes of defiance usually come to a predictable end.

In an interview this week, Justice Ginsburg argued that Americans are ready to accept a Supreme Court ruling legalizing same-sex marriage.

The Court decided not to stay the execution of Missouri inmate Walter Timothy Storey, whose sentence was carried out on Tuesday.

Longtime UNLV basketball coach Jerry Tarkanian died on Wednesday. ISCOTUS Director Schmidt looks at the time Tark the Shark sued the NCAA and made it all the way to the Supreme Court—where he lost.

A familiar face has asked the Court to reexamine the issue of racial preferences in college admissions—Abigail Fisher, who was at the center of Fisher v. Texas, decided in 2013.

Might questions about the whether the plaintiffs in the upcoming Obamacare challenge have standing to sue lead the Supreme Court to dismiss the case?

History of the Court

Tark the Shark at the Supreme Court

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Jerry Tarkanian, the controversial and colorful college basketball coach, died on Wednesday. Basketball fans remember Tark the Shark for his four Final Four appearances (including one national championship) and for his distinctive appearance and habits. (The New York Times’ obituary described him as “a baldheaded, sunken-eyed presence on the bench known for nervously chewing on towels during games.”) Constitutional law aficionados remember him for taking his legal battle against the NCAA all the way to the Supreme Court.

Coach Tarkanian was an aggressive recruiter infamous for his atrocious player graduation rates, and the NCAA regularly sanctioned him for violating its rules. “They’ve been my tormentors my whole life,” he once said. “I’ve fought them the whole way. I’ve never backed down. And they never stopped.” One way he fought back was by suing the NCAA for violating his due process rights.

The case that made it to the Supreme Court in 1988, NCAA v. Tarkanian, centered on the question of whether the NCAA, when it enforced its rules against Tarkanian, was a “state actor” for purposes of the Fourteenth Amendment. If so, the organization could be held to account under the Amendment’s due process requirements. If not, the actions of the NCAA, as a private entity, did not have to meet constitutional due process standards. The Nevada Supreme Court had ruled in Tarkanian’s favor, finding that the NCAA was a state actor. The U.S. Supreme Court reversed with a rather unusual 5-4 alignment: Justice Stevens wrote the opinion joined by Chief Justice Rehnquist and Justices Blackmun, Scalia, and Kennedy; Justice White wrote a dissent joined by Justices Brennan, Marshall, and O’Connor. The NCAA, the Court ruled, was not a state actor, and thus Tarkanian could not bring a due process challenge against the organization.

The legal issue was notably a tangled one, even for the chronically tangled area of law known as the state action doctrine. The core complication here was that Tarkanian’s punishment was being administered by his employer, the University of Nevada, Las Vegas, which as a state university was clearly a “state actor” under the Fourteenth Amendment. But the university was only acting under the direction of the NCAA, a private organization of which UNLV, along with hundreds of other state and private universities, was a member. So here we have the unusual situation of a private actor making the rules for a state actor. Although four justices found that the NCAA “acted jointly” with the UNLV and thus should be treated as a state actor, five justices disagreed, concluding that the NCAA’s actions were sufficiently detached from any state involvement so as to remain “private” under the Fourteenth Amendment.

After his loss at the Supreme Court, Tarkanian remained in his job, although he was forced to accept a slew of new sanctions. A few years later, Tark the Shark had another go at the NCAA. This time he won a settlement worth $2.5 million.

History of the Court, News, Same Sex Marriage

Defying the Federal Courts

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“Courts are just people. They’re just men and women dressed in black robes who have no power to re-declare, or declare, the social foundation of this nation as being unconstitutional.”

These were the words of Roy S. Moore, chief justice of the Alabama Supreme Court. Moore is a man with a proud history of defying the federal courts. A decade ago he famously refused to remove a monument representing the Ten Commandments from the state courthouse after a federal court ordered him to do so. Today he is making his stand against the growing tide of federal court decisions that have found a constitutional right to same-sex marriage.

Moore was referring specifically to the January 23rd decision of U.S. District Judge Callie V. S. Granade, which struck down Alabama’s prohibition on same-sex marriage. In making this ruling, Moore said, Judge Granade was simply wrong. “Nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.”

In Alabama and elsewhere around the country, we are witnessing the endgame of the same-sex marriage campaign. If the Supreme Court issues a ruling in June striking down same-sex marriage bans nationwide, as it is generally expected to do, options for opponents of marriage equality are going to be severely limited. But there is still much that they can and surely will do. “This fight will continue on regardless of which way the Supreme Court rules,” said Brian S. Brown, the president of the National Organization for Marriage, which opposes same-sex marriage.

Supreme Court decisions never truly end constitutional disputes. The pending same-sex marriage decision will be no exception. What kinds of defiance will be available to opponents of same-sex marriage, even if the Supreme Court in June holds that the Constitution includes a right to same-sex marriage?

One of the most common forms of defiance of the Supreme Court is political posturing, i.e., denouncing a Court decision to score some political points. This seems to be the approach Alabama’s governor, Robert Bentley, is taking. When the Supreme Court refused to grant a stay of the district court opinion until the Court decides its own pending same-sex marriage cases, Governor Bentley attacked the Supreme Court’s “cavalier attitude toward the states.” (Here he was just echoing the words of Justice Thomas’s dissent to the refusal to grant the stay. Thomas wrote, “Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States.”)

There is nothing new or all that controversial about campaigning against the Court. Half a century ago, another Alabama governor, segregationist George Wallace, made opposition to the Warren Court a centerpiece of his political career—a career that included several presidential runs. The only people who win before the Supreme Court, Wallace complained on the campaign trail, were “duly and lawfully convicted criminals, communists, atheists and clients of the NAACP.” He also declared the federal courts “the greatest single threat to individual freedom and liberty in the United States today.” More recently, conservative politicians have leveraged the Supreme Court’s Roe v. Wade and Lawrence v. Texas decisions for political advantage. Liberals have sought to do the same (albeit with only limited success thus far) by campaigning against the Court’s Heller gun-rights decision or its Citizens United campaign finance decision.

A more aggressive and controversial posture of defiance is the refusal to follow federal court rulings. This is the approach Judge Moore is attempting to orchestrate in Alabama. He has simultaneously denounced the legal argument of marriage equality proponents and instructed local officials not to issue marriage licenses to gay couples. This kind of defiance might be practiced by political actors—think of George Wallace standing in the schoolhouse door. Or it may be practiced by judicial actors—in 1960, when pressed to desegregate his courtroom, Montgomery municipal court judge Walter B. Jones declared that “the XIV Amendment has no standing whatever in this Court; it is a pariah and an outcast.” This form of direct defiance, whether it be by politicians or judges, gets plenty of attention. It might accrue some short term benefits for resistance efforts. It also risks backfiring, since such open defiance offers an easy target for those who seek to mobilize support for the targeted Court opinion. Regardless of whether it achieves anything, direct defiance generally comes to a predictable end. Wallace stepped aside and the University of Alabama was desegregated; Montgomery courtrooms were eventually desegregated; and there will be gay marriage in Alabama.

Weekly Roundup

Weekly Roundup – February 6, 2015

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

If the Supreme Court rules against Obamacare in the law’s second court appearance this spring, problems could arise not just for the President but for some Republican states as well.

In The New York Times, Linda Greenhouse argues that if the justices destroy Obamacare this time, they will be endangering the legitimacy of the Court.

Justice Kagan discussed the Supreme Court bar, whether justices should attend the State of the Union address, and law schools on a recent visit to Northwestern University School of Law.

Justice Scalia is the subject of a new play titled The Originalist, put on by a Washington, D.C.–based theater company.

Speaking to students at Georgetown, Justice Ginsburg named 2010’s Citizen United decision, which has led to an influx in campaign spending by corporations, as the one ruling from the last ten years that she would most like to see overturned.

Following on last week’s decision to stay the execution of three Oklahoma inmates, the Supreme Court this week did the same for Texas inmate Lester Bower, who has been on death row for 30 years.

Bobby Chen, the litigant without lawyer or money who went missing in December, has resurfaced and is attempting to revive his case at the Supreme Court.

On Slate’s new Supreme Court podcast, “Amicus,” Dahlia Lithwick talks with professors Sonja West and RonNell Andersen Jones about the issue of cameras in the courtroom.