News, OT 2012

What’s going on at the Supreme Court?

Today, the Supreme Court issued decisions in four cases. All but one were unanimous as to result, and that one, City of Arlington v. FCC, though important in administrative law, is not a case most members of the public are likely to be following. This may lead some people to wonder what the Supreme Court is doing and when they will issue decisions in the big cases from this Term — the gay marriage cases (Perry and Windsor), the affirmative action case (Fisher), and the Voting Rights Act case (Shelby County), to name a few.

The short answer is that the dispositions of these cases will almost certainly be announced before the end of June, when the Court goes into summer recess. I say “almost certainly” because there is at least one other, very remote, possibility: Occasionally a case is held over for reargument in the fall. This happened with Citizens United.

At this time of year, the Court generally announces (or “hands down”) opinions on Mondays (next week it will be Tuesday due to Memorial Day), and it sometimes adds an additional hand-down days, usually Thursdays, towards the end of the Term. But the Court never announces ahead of time what opinions it will be issuing on a particular hand-down day. So between now and the end of June, every hand-down day has the potential to be a biggie.

Affordable Care Act, News

Congratulations to Dahlia Lithwick!

Case:

The Affordable Care Act Cases

Dahlia Lithwick has won a richly-deserved National Magazine Award for Columns and Commentary. The award is specifically for three columns about the Affordable Care Act case. But as courtwatchers know, Dahlia Lithwick’s incisive commentary at Slate.com is a must read. (She’s been on sabbatical this year, and we look forward to reading her regular dispatches again.)

OT 2012

A hint on Hollingsworth from a criminal case?

Case:

Boyer v. Louisiana

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.

Fourth Amendment

Losing at oral argument?

Case:

Missouri v. McNeely

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.

OT 2012

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?