OT 2014

America’s Love-Hate Relationship with the Supreme Court

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I’m currently reading Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky is a very persuasive advocate. His writing is clear and accessible, his tone moderate and open. The portrait he paints of the Court is pretty bleak. “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments,” he writes. I’m not going to say that Chemerinsky fully makes his case, but he has a pretty good go at it. For anyone who begins the book with visions of the Supreme Court as the defender of the dispossessed and disempowered, the book offers a bracing ride. The Court that emerges from this book is beaten and battered, a diminished institution whose failures, in Chemerinsky’s final estimate, far outweigh its achievements.

Although The Case Against the Supreme Court is particularly notable in that it is the work of an unabashed admirer of the Court who has become deeply disillusioned, Chemerinsky’s basic critique of the Court is very much in line with the zeitgeist today. A critical posture toward the Court has become standard fare—increasingly so, I think. We have also seen a general chastening of expectations of what the Court can and should do. Public opinion of the Court has steadily declined in recent decades. Scathing attacks on the Court, while always a part of our public discourse, are now common. While much of this can be explained by liberal frustration with the conservative tendencies of the Rehnquist and Roberts Courts, it cannot be reduced to this. Some of the most condemnatory attacks on the Court have come from the political right. Also, a growing number of scholars have gone down the path that Chemerinsky recently discovered, questioning not only the current Court but the institution itself. Some have urged us to consider whether the costs of judicial review outweigh the benefits; others have suggested that even the most iconic of Court achievements, such as Brown v. Board of Education, gave the nation far less than we might have thought. The Supreme Court has come in for some rough sailing of late.

So why, then, is there so much public fascination—a fascination that sometimes approaches idolatry—with the Supreme Court and the people who serve on it? This curious love-hate juxtaposition came to my mind, because while I was reading Chemerinsky’s diatribe against the Court I came across an article last week in the Washington Post on the social media industry that has grown up around the Court. We have a fantasy league for the Supreme Court. People are making animated re-creations of Court arguments. Comedian John Oliver’s oral argument skit with animals was a YouTube hit. The Justices have done their part to help fuel the Court-watching scene. They are out and about like never before, attracting impressive audiences and regular media attention wherever they go. Semi-revelatory memoirs seem to be the new norm for justices. Time just ran an article in its “Entertainment: Celebrities” section titled “Why People Love Reading About Supreme Court Justices’ Favorite Movies.”

What’s going on here? I think much of this can be attributed to various broader developments in American society. On the one hand, public fascination is fueled by the rise of social media, which allows networks of followers to form and expand, and by the fact that the Court has become a part of the broader celebrity-obsessed culture in which we live. On the other hand, disillusionment with the Court is fueled by growing ideological polarization coupled with a general decline in faith in institutions across American society.

Even as we think less and less of the Court, we seem to be thinking more and more about the Court.

History of the Court, OT 2014, Same Sex Marriage

Some Thoughts on a “Silent” Supreme Court

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There has been much discussion about the Supreme Court’s recent string of highly consequential actions in which the justices have been conspicuously silent about what they are doing. Because of the great lengths the justices go to lay out the precise reasoning of their decisions, they often proudly proclaim the Court as the most transparent of the three branches of government. But this kind of transparency has not been in evidence when it comes to the most significant happenings at the High Court this Term. Most notably, when the Court refused certiorari in a series of same-sex marriage case appeals, no reasons were given. Although denials of certiorari typically do not come with explanations (it would be impractical, considering the thousands of cases the Court denies every term), some people thought such a momentous denial would at least elicit a disgruntled justice to issue a dissenting statement. But no. The Court was silent.

Predictably, some have voiced frustration with this reticent turn. How can the Court regularly intervene on such major constitutional issues yet not give the country any real guidance on what it is doing? Isn’t this the Court’s responsibility? Isn’t the very legitimacy of the Court based on its stated reasoning and not just on the consequences of its actions? These are all good points. But these kinds of criticisms are not particularly new, and it’s worth putting them into historical perspective.

For example, following Brown v. Board of Education (1954), the Court issued a series of per curium decisions extending the desegregation requirement of Brown from public schools to other state-operated facilities—beaches, golf courses, buses, parks. The reasoning in these opinions was little more than a citation to Brown. Many legal scholars asked what the Court was doing here. This extension of Brown was particularly curious because the Brown decision seemed to draw on the specific costs of racial segregation in schools as a basis for its decision. Could the same psychological harms that (the Court suggested) resulted from state-enforced segregation in schools also be found in state-enforced segregation on golf courses and beaches? Critics of these decisions had a point, but with some historical perspective these criticisms appear small in connection with the broader work being done by the Court to advance the cause of civil rights.

Like the post-Brown per curium decisions, the Court’s reticence on same-sex marriage will fare just fine in the judgment of history. The justices know this. They are playing the long game.

Affordable Care Act, OT 2013

A Look Back—Justice Ginsburg’s Oral Dissent in Hobby Lobby

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With the beginning of the new term at the Supreme Court comes the release of audio from last Term’s opinion announcements, available now on Oyez. In a previous post I discussed last Term’s most notable oral dissent, Justice Sotomayor’s in Schuette v. Coalition to Defend Affirmative Action, in which she challenged her conservative colleagues for their unwillingness to confront the “reality of race in American society.” In this post I look at another of the Term’s major dissenting opinions that was announced from the bench: Justice Ginsburg’s oral dissent in Burwell v. Hobby Lobby.

In Hobby Lobby, the Court held that the Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from requiring businesses to include coverage in their health care plans for certain methods of contraception that the owners of the business object to on religious grounds. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented.

Justice Ginsburg’s Hobby Lobby oral dissent, like Justice Sotomayor’s oral dissent in Schuette, consists of excerpts from her written opinion, with some reordering of arguments and minor editing. And like Sotomayor, Ginsburg made some interesting decisions in translating her lengthy written dissent into a spoken summary.

Justice Ginsburg opted not to start off with the sharp language that begins her written dissent. The written dissent opens with a denunciation of the majority’s decision as one “of startling breadth,” as “extreme” and “radical.” In her bench announcement, by contrast, Justice Ginsburg skips over the accusatory, attention-grabbing language of her written opinion’s introduction. The bench dissent opens rather mildly, with a discussion of the goals of the Affordable Care Act (ACA), the source of the contraception requirement, summarizing material from the body of her written dissent.

Justice Ginsburg’s decision to place the ACA at the heart of the case is significant, of course. Justice Alito in his majority opinion (both the written version and his bench announcement) places the focus from the start squarely on the companies claiming a religious exemption from the ACA’s contraception coverage requirement. Justice Alito’s discussion of the ACA comes later in the opinion, and then it is rather perfunctory. (In her written opinion, Justice Ginsburg notes that the majority only “grudgingly” conceded that the contraception requirement met RFRA’s “compelling government interest” requirement.) Justice Ginsburg’s point, then, is that the case is as much about the ACA and the law’s goal of providing preventative medical care that was, as she wrote in her opinion, “responsive to women’s needs,” as it was about religious freedom.

In reading her dissent, Justice Ginsburg starts off slowly, almost haltingly. Her presentation gains force over the course of her reading, however, as she settles into her characteristic presentation style, soft-spoken and precise.

Ginsburg’s bench announcement emphasizes in particular two themes from her written dissent. First, as indicated by her decision to start her oral dissent with a discussion of the ACA, she insists that more attention be given to the costs to women of granting companies a religious exemption from the contraception coverage requirement. In their near-exclusive focus on the religious freedom claim of the businesses, the justices in the majority, she argues, fail to appreciate the impact of their decision on the intended beneficiaries of the ACA. To amplify this point, she quotes Zechariah Chaffee’s famous description of the limits of free speech: “Your right to swing your arm ends where the other man’s nose begins.” (She really likes this quotation. Not only did she feature it in her written and oral dissents, she also quoted it in a recent interview when discussing Hobby Lobby.) Her basic point: religious-based choices should not be imposed on employees who do not hold those beliefs.

A second theme that features prominently in her bench dissent is a concern with the implications of the Court’s holding. “Reading the [Religious Freedom Restoration] Act expansively, as the Court does, raises a host of me-too questions,” she notes early in her oral dissent. She identifies potential future religious freedom claims, deriving from religious-based objections to blood transfusions, vaccinations, antidepressants, or medications derived from pigs. She returns to these slippery-slope concerns later in her oral dissent. What about religious objections to minimum wage or equal pay for equal work? What about a religious-based refusal to employ “a single woman without her father’s consent or a married woman without her husband’s consent”? These are all scenarios that featured prominently at oral argument and that appear toward the end of her written dissent. They are all evidence, she suggests, of the “potentially sweeping” nature of the majority’s decision.

In concluding her oral dissent, Justice Ginsburg turns to the values and limits of a religiously pluralistic society. She pulls material from a footnote of her written opinion, stating that “[o]ur cosmopolitan nation is made up of people of almost every conceivable religious preference” (quoting from Braunfeld v. Brown (1961)). She then draws on language from United States v. Lee (1982), a case involving a free exercise challenge by an Amish businessman who claimed a religious-based exemption from paying into Social Security. “[S]ome religious practices,” the Lee Court explained, must “yield to the common good.”

In this way, Justice Ginsburg returns to where she began, with the values advanced through the ACA and the need to ensure that the preventative health care provisions of the ACA remain effective. While lacking some of the personalized passion that came through in Justice Sotomayor’s Schuette oral dissent, Justice Ginsburg’s Hobby Lobby oral dissent puts well on display her quieter persuasive skills.

Affirmative Action, OT 2013

A Look Back—Justice Sotomayor’s First Oral Dissent

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The Supreme Court has finally released—and Oyez has made available—audio recordings of last Term’s opinion announcements. Most of these announcements are summaries of majority opinions, but there are also a few oral dissents. Standard practice on the Supreme Court is for only the author of the opinion of the Court to read a summary of that opinion from the bench. The justices typically do not also summarize their dissents or concurrences. Yet on occasion—usually a handful of times a Term—a justice will decide to read a dissent from the bench. The justices recognize oral dissents as a way to amplify the dissenter’s displeasure with the majority holding. They often explain that in reading their dissents from the bench they seek to draw increased attention to their position.

In a Term with numerous important decisions featuring oral dissents (more on those in subsequent postings), the most notable was surely the dissent that Justice Sotomayor read in the Term’s affirmative action case, Schuette v. Coalition to Defend Affirmative Action. In her five years on the Supreme Court, Sotomayor had never before read a dissent from the bench. Indeed, she had said that she didn’t think much of the practice, once dismissing oral dissents as “entertainment for the press.” She noted her frustration when “listening to my colleagues read their summary of our opinion”: “I’m saying, ‘That’s not what the case is really about; that’s not what it said.’”

Sotomayor said she changed her mind about oral dissents because of a discussion with Linda Greenhouse, in which the ex-New York Times Supreme Court reporter convinced the justice of their potential value. She chose Shuette, a case in which a six-justice majority upheld Michigan’s ban on racial preferences in its public universities, as the occasion for her first bench dissent. When Justice Sotomayor first read her dissent, I posted a discussion on inaugural oral dissents in which I wrote:

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

Now we can actually listen to what she said. Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing. The bulk of the statement is a summary of why she feels the “political process” precedents of Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) should control in this case, and of why Michigan voters’ effort to amend their constitution to prohibit racial preferences in higher education should be struck down as a violation of the Fourteenth Amendment’s Equal Protection Clause.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position.

To challenge the wisdom of race-conscious admissions policies, Justice Sotomayor argues, ignores the value of diversity in higher education. At this point she diverges from her the language written opinion, toning down her accusations against her colleagues. Her written opinion reads as follows: To question “race-sensitive admissions policies … ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.” Translated into her bench dissent, she said that to question race-sensitive admissions policies “reveals a fundamental understanding about the reality of race in American society.” (I assume she meant to say “misunderstanding about the reality of race in society,” which would make more sense. Her misstatement or self-edit might indicate that throwing barbs at colleagues is a bit harder to do when they’re sitting right next to you. According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She continues (again toning down slightly the language of the written dissent): “In the end, my colleagues believe that we should leave race out of the constitutional picture entirely and let the voters sort it out. This reasoning ignores the stark reality, all too apparent in communities throughout the country: that race still matters.”

She then concludes her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

OT 2014

States’ Rights and White Teeth

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On Tuesday, the Supreme Court heard a case involving the North Carolina dental board’s efforts to regulate the market for teeth-whitening services. Why, you may ask, is the nation’s highest court concerning itself with this kind of case? The answer, argues Noah Feldman, is states’ rights. The lawyers representing the dental board argue that this is a case about protecting the states from regulatory overreach by the Federal Trade Commission.

The basic issue before the Court is as follows: The North Carolina State Board of Dental Examiners was created by the state, but the state does not oversee its operations. Most of the board members are selected by the state’s dentists. The board decided to prohibit anyone other than a dentist from performing teeth-whitening procedures—an obvious effort to a serve the financial interests of North Carolina dentists. The FTC sanctioned the dental board for anticompetitive practices, and a federal court upheld the FTC decision. But the dental board argues that it does not fall under the jurisdiction of the FTC because it is a state organization—and state organizations are generally exempt from federal antitrust regulation. The Supreme Court must now decide whether the board—which, while created by the state, is not under the direct supervision of the state—falls under the protective shield of “state action immunity” from FTC regulation. (For more details on the case, check out the SCOTUSblog preview here.)

At oral arguments on Tuesday, the lawyer representing the board hit his big theme right from the start. “[R]espect for federalism,” he told the justices, “requires deference to a State’s sovereign choices concerning how to structure and manage its own regulatory agencies.” And he kept returning to his federalism theme: “[F]undamentally, it is a question for the State to determine whether it wants to bear that risk”—i.e., of granting substantial autonomy to a regulatory board staffed by obviously self-interested actors. “The State has decided that the benefits of having market participants make decisions and not having their every—each and every decision actively second­-guessed by a higher level of bureaucracy is worth it.”

We’ll have to wait and see whether these kinds of federalism arguments will win over the Court. Justices Alito and Scalia were particularly aggressive in questioning the federal government lawyer about how closely the FTC could delve into the workings of state organizations when determining whether “state action immunity” applied to that organization. The lawyer for the dental board appeared to be subject to more frequent and more skeptical questioning than the government lawyer—a possible indication that the Court is leaning toward upholding the FTC ruling.

OT 2014, Predicting the Winners

Predicting the Winners in Teva Pharmaceuticals v. Sandoz and Jennings v. Stephens

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The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. asks whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires, or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

The Petitioner Teva argued that Federal Rule of Civil Procedure 52(a) applies and the Federal Circuit must apply a deferential clear error standard of review to the district court’s findings of facts that underlie its claim construction of the patent. The Respondent Sandoz argued that de novo review applied because of the Supreme Court’s Markman decision. The Solicitor General, supporting neither party, argued that Rule 52(a) applies to any subsidiary factual findings related to claim construction, such as to the underlying science related to the invention. But the SG also argued that applying the clear-error standard would not likely alter the Federal Circuit’s conclusion that the patent was indefinite and that, ultimately, the Supreme Court should remand the case back to the Federal Circuit to consider the correct standard. In a footnote in its brief, the SG even conceded its approach might make any later ruling on remand irrelevant if it occurs after Teva’s patent expiration in September 2015.

My prediction is that the Supreme Court will reverse the Federal Circuit decision insofar as it failed to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below. The Respondent Sandoz received 40 questions, 7 more than the Petitioner Teva. The differential suggests a win for Teva, at least in some respect.

The SG’s more nuanced position makes it more difficult to predict the entirety of the Supreme Court’s ruling. The SG, which received 12 questions in 10 minutes, agreed that Rule 52(a) should apply to subsidiary factual findings, but had a much different take on the merits of Teva’s patent and how the case should proceed on remand. In past cases, the Supreme Court has tended to side with the SG’s positions. In this case, though, I think the Court is unlikely to find appealing the possibility of a remand that could be mooted by the expiration of Teva’s patent. So, looking beyond simply the number of questions during oral argument, I predict that the Supreme Court will resolve the case and issue of the definiteness of the patent applying Rule 52(a) to the district court’s factual findings, instead of remanding that determination for the Federal Court. Whether or not the Supreme Court will find Teva’s patent claim definite is harder to predict. All I can say is that it should help Teva’s side, at least modestly, to have a Rule 52(a) standard of review.

Figure 1.

Lee - 10.15.14 Teva v Sandoz (edited)

The second case, Jennings v. Stephens, asks whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected, even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

My prediction is that the Court will side with the Respondent Stephens’ position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

Figure 2.

Lee - 10.15.14 Jennings v Stephens

UPDATE on October 20: Individual Justice Analysis Suggests Close Call

I had a chance to go back over the question count per Justice. This examination paints a different picture of the possible winner than my earlier analysis of the total question count during oral argument. In contrast to using the Court’s total question count as a predictor, the question count by individual Justice leans slightly in favor of the Respondent Sandoz.

Five of the Justices (Roberts, Kennedy, Ginsburg, Alito, and Sotomayor) asked the Respondent fewer questions than the Petitioner—which suggests a more favorable outcome for the Respondent. It should be noted, however, the differential was not large. For four of these Justices (Roberts, Kennedy, Alito, and Sotomayor), the question differential was only one or two questions. Justice Kennedy, whose vote in past studies was harder to predict based on question counts, asked the Petitioner Teva just one more question than the Respondent (4 to 3). Justice Ginsburg was the only Justice who asked the Petitioner twice as many questions (6 to 3).

By contrast, three of the Justices (Scalia, Breyer, and Kagan) asked the Petitioner fewer questions by large margins. Indeed, Justices Scalia and Kagan asked the Respondent twice as many questions than the Petitioner (6 to 3, and 7 to 3 questions), while Justice Breyer asked more than three times as many questions to Respondent (14 to 4). (Justice Thomas did not ask any questions.)

So has this analysis changed my original prediction? To some extent, yes. I am less confident in the prediction, given the individual Justice breakdown. However, given the Solicitor General’s position in the case and the total question count plus three Justices with larger question differentials in favor of the Petitioner, I am going to stick by my original prediction that the Supreme Court will reverse the Federal Circuit decision for failing to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below.

Inside the Case, OT 2014, Patent Law

Teva Pharmaceuticals v. Sandoz: Inside the Case

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On October 15, 2014, the Supreme Court hears oral argument in Teva Pharmaceuticals v. Sandoz, a pharmaceutical patent case that could clarify critical issues of claim construction in patent litigation as well as the relative power of trial courts and appellate courts in such matters. Professor David Schwartz (IIT Chicago-Kent College of Law) discusses the background of the case and the central issue: What is the proper standard of review that the appellate court should use to review claim constructions of a patent done by trial courts?

OT 2014, Predicting the Winners

Predicting the Winners in Kansas v. Nebraska and N.C. Board of Dental Examiners v. FTC

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The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Kansas v. Nebraska and Colorado asks what relief is appropriate to remedy the violation by Nebraska of a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado. The Court has original jurisdiction over the case involving three states and will review the special master’s report and award of remedies.

This is an unusual case involving the Court exercising original jurisdiction. It’s a tough case to call simply based on the question count. Plaintiff Kansas received a few more questions (38) than Defendants Nebraska and Colorado (32), which suggests that the Kansas will lose in its attempt to convince the Court that injunctive relief is warranted, as well as more significant disgorgement.

However, the Defendants’ position may not necessary prevail, either. In prior cases, the Court has tended to side with the Solicitor General’s position. In this case, the SG supported the special master’s report and issuance of partial disgorgement, but no injunctive relief. The SG’s attorney received 22 questions, although it’s not clear how much time was allotted. Based on both the question count and the Supreme Court’s tendency of adopting the SG’s position in prior cases, my prediction in this case is that the Supreme Court will follow the SG’s position.

Figure 1.

Lee 10.14.14 Kansas v Nebraska questions

The second case, North Carolina Board of Dental Examiners v. Federal Trade Commission, asks whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

My prediction is that the Court will side with Respondent FTC’s position (i.e., that the Fourth Circuit correctly upheld the FTC’s determination that the state-action doctrine did not exempt the Petitioner’s conduct from federal antitrust scrutiny). The Petitioner North Carolina Board of Dental Examiners received nine more questions than the Respondent FTC, which suggests a win for the FTC.

Figure 2.

Lee 10.14.14 NC Board of Dental Examiners questions

 

OT 2014

Recapping the Opening Week at the Supreme Court, October Term 2014

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It has been a remarkably exciting opening week of the new Term at the Supreme Court. The biggest news came right at the opening “Oyez.” With most Court watchers confidently predicting that this was going to be the term when the justices squarely faced the constitutionality of same-sex marriage bans, the justices announced at 9:30 am on Monday morning that they were going to take a different approach. The Court denied review of the seven pending same-sex marriage cases. Since each of these cases involved federal appeals court decisions that had recognized a constitutional right to same-sex marriage, the effect of this monumental decision not to decide was to strike down same-sex marriage bans in a large swath of the country.

This non-decision amounted to the strongest signal the Court has given to this point that a majority of the justices believe the Constitution prohibits states from prohibiting same-sex marriage. It also brings same-sex marriage to states in which there is considerable opposition to same-sex marriage. Prior to this point, state legislatures and courts had legalized same-sex marriage in 19 states. After Monday’s Court order, the number has reached 24 and, counting all the states covered by the three federal circuits affected by Monday’s order, will soon reach 30 states. Many of these newly added states have strong conservative leanings. In response, some of the affected states have given up the fight against same-sex marriage, while others are vowing to fight on. Then, on Tuesday, the U.S. Court of Appeals for the Ninth Circuit struck down prohibitions on same-sex marriage in Idaho and Nevada. As a result, the total number of states in which same-sex couples have or will likely soon have the right to marry is now at 34.

Tuesday’s Ninth Circuit decision led to some interesting events, including some embarrassment, at the Supreme Court. Idaho immediately filed at the Supreme Court a request for a stay, which Justice Kennedy—as the Justice responsible for these kinds of requests from the Ninth Circuit—granted. This pro forma decision had the effect of temporarily halting the granting of marriage licenses to same-sex couples in Idaho. Granting a stay in this situation is standard practice for the Court, and, in light of Monday’s actions, it will likely only prove a temporary delay in Idaho’s acceptance of same-sex marriage. This was not the end of the story, however. An apparent mix-up at the Court resulted in the stay being applied to Nevada as well, despite the fact that Nevada had not requested a stay and was already starting to issue marriage licenses to same-sex couples. The Court quickly fixed the mistake, but not before Nevada halted issuing marriage licenses to same-sex couples for a day.

The other big issue that the Court has been dealing with this week is voting rights. Partly in response to the Court’s 2013 decision in Shelby County, in which the Court struck down a key section of the Voting Rights Act of 1965, various states have passed new voting regulations. With a new round of elections looming, legal challenges to these regulations have been working their way through the courts at high speed, and the Supreme Court has weighed in on several of them. On Wednesday, the Court issued an unsigned order that put back into effect certain voting regulations that North Carolina had implemented but that a federal appeals court had blocked. The court found that the regulations, which prohibited same-day registration and the counting of votes cast in the wrong precinct, disproportionately harmed African American voters. Dissenting from the Court’s order were Justices Ginsburg and Sotomayor. On Thursday, the Court came out the other way in a challenge out of Wisconsin, blocking a photo-identification requirement the state recently passed. Other cases are still pending review at the Court.

The Court was also hearing arguments in some interesting cases this week. On Tuesday, the Court heard arguments in a religious freedom case involving a man serving a life sentence in an Arkansas prison who wants to grow a beard. (See my summary of the case here.) Oral arguments seemed to be strongly in favor of the prisoner’s claim.

On Wednesday, the Court considered the question of whether the time that retail or warehouse employees spend going through security checks must be recognized as time on the clock. If so, the employees may be due overtime pay. The businesses countered that this time is analogous to the time an employee spends commuting to work, and therefore is not part of the paid workday. Although a rather dry, technical question, the resolution of this issue has huge financial consequences for large businesses like Amazon that routinely require employees to stand in security checks at the end of the day—sometimes for as long as 25 minutes—to prevent theft of merchandise.

The Court on Wednesday also considered a case about whether jurors should be allowed to testify about their deliberations. Adam Liptak reported in the New York Times that oral arguments in the case were unusually one-sided, with the lawyer arguing that juror testimony should not be allowed receiving almost no questions.

So there you have it—an historic opening week to the Supreme Court Term. Onward.

OT 2014, Predicting the Winners

Predicting the Winners in Integrity Staffing Solutions v. Busk and Warger v. Shauers

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The Supreme Court heard oral argument in two cases on Wednesday, October 8, in the first week of the October 2014 Term. As I hope to do all Term, I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. It’s well established that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Integrity Staffing Solutions, Inc. v. Busk presents the question whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. My prediction is that the Petitioner Integrity Staffing Solutions will win. The Respondent Busk received almost twice as many questions as the Petitioner (51 to 27 questions), and 11 more questions than even the total number of questions for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Integrity Staffing Solutions (which argued that the time spent in security screenings is not compensable under the FLSA).

Figure 1.

Lee - 10.8.14 Integrity Staffing v Busk questions

The second case, Warger v. Shauers, raises the issue whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

This is an easy case to predict, given the large disparity in the number of questions asked to the parties. The Petitioner Warger received more than twice as many questions than the Respondent and U.S. Solicitor General (who supported the Respondent’s position) combined (31 to 13 questions). The attorney for the Solicitor General’s Office in fact received no questions at all—a rarity during oral arguments. The huge disparity in the number of questions points to a victory for the Respondent Shauers (who argued that Rule 606(b) precludes evidence of juror testimony about statements made during jury deliberations even if it relates to juror dishonesty).

Figure 2.

Lee - 10.8.14 Warger v Shauers questions