OT 2015, Weekly Roundup

Weekly Roundup—June 18, 2016

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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.)

All together (for) now! The Supreme Court handed down six opinions this week, all but one unanimous.

The justices held in Puerto Rico v. Franklin California Tax-Free Trust that the Bankruptcy Code preempted the Puerto Rico Public Corporation Debt Enforcement and Recovery Act. Lyle Denniston of Scotusblog wrote that the ruling “left the financial fate of the island entirely in Congress’s hands.” This week the Court also declined to reconsider a case about citizenship for people born in American Samoa. CNN reports the consequences of the Court’s choice.

In Halo Electronics, Inc. v. Pulse Electronics, Inc., the Court decided that the Federal Circuit’s two-part Seagate test dealing with damages in infringement cases was “unduly rigid” and inconsistent with Section 284 of the Patent Act. Greg Stohr of Bloomberg.com sums up this case by saying the Court “eased the way for larger damage awards” in patent cases.

The final opinion released on Monday was United States v. Bryant, which held that there is no constitutional violation for using tribal-court convictions as predicate offenses. Scotusblog’s Amy Howe details the case here.

Kirtsaeng v. John Wiley & Sons, Inc., decided that the award of attorney’s fees under the Copyright Act’s fee-shifting provision should give substantial weight to the losing party’s objective reasonableness while also taking into account all other circumstances. At Scotusblog Ronald Mann breaks down Justice Kagan’s opinion. The Jurist reviews the history behind the case.

In Kingdomware Technologies, Inc. v. United States, the Court held that Section 8127(d) Veterans Benefits, HealthCare, and Information Technology Act applies to all contracting determinations by the Department of Veterans Affairs. Lydia Wheeler of The Hill explains more about the Court’s decision in favor of veteran-owned small businesses.

Finally, in Universal Health Services v. Escobar, the Court held that parties who make “implied false certification” can be held liable under the False Claims Acts. The Washington Post’s Robert Barnes breaks down Justice Thomas’ opinions in both Kingdomware and Universal Health Services.

 

What’s Next?

The Supreme Court has sixteen opinions left to hand down in this term, including big ones on abortion, affirmative action, and immigration. The abortion case, Whole Woman’s Health v. Hellerstedt, revisits the “undue burden standard” the Court established in Planned Parenthood v. Casey (1992). Worth revisiting is Dahlia Lithwick’s exuberant account of oral arguments in the case. (“It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules.”) And for a guided tour of the history of the Supreme Court and abortion rights, check out Oyez’s brand new online guide!

In another blockbuster case, the Court will weigh in on the immigration debate. United States v. Texas asks whether President Obama’s Deferred Action for Parents of Americans program (DAPA) is constitutional. At issue is the scope of presidential powers, including the limits established by the “Take Care” Clause, and Article II provision the Court has rarely considered. The Washington Post weighs in on that topic, here. Check out Forbes for some thoughts on how Scalia’s death affects this case (among others).

Finally, the Court will decide Fisher v. University of Texas, an affirmative action case it has now seen twice in the past two years. The challengers argue that the University of Texas’s use of racial preferences in undergraduate admissions violates the Equal Protection Clause of the Fourteenth Amendment. Complicating the issue is Texas’s “top-10%” plan, by which a percentage of students from every high school are guaranteed admission to the University of Texas system. Since the “race-neutral”  top-10% plan achieves a substantial measure of diversity at the university, the conservative justices expressed skepticism at oral arguments that the state could justify also using race-conscious policies. Note that Justice Kagan once again recused herself from the case since she worked on it when she was Solicitor General, so a seven-justice Court will be deciding the case. Scotusblog and the Washington Post offer summaries of the issues.

As the end of the term approaches, the New York Times analyzes the effect on the Supreme Court of working with eight justices, with analysis of cases decided and cases we’re still waiting on. The country is only five months away from a presidential election, and Laura Little of Constitution Daily details what effect the presidential election may have on the Court. When it comes to judicial appointments, she writes, “politics are baked into the cake!”

Finally, the tragedy of the Orlando massacre has many asking if the Supreme Court will weigh in on gun laws in America. The Huffington Post says, “don’t hold your breath.”

Abortion, History of the Court

Introducing “Body Politic”

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ISCOTUS and Oyez are thrilled to announce the launch of Body Politic, an interactive exploration of the Supreme Court’s abortion jurisprudence from Roe v. Wade through today.

Designed to balance both accessibility and depth, Body Politic offers a terrific introduction for students or anyone else just looking for the basic issues, but also offers enough detail and analysis to satisfy the most serious Court-watchers. The site provides a tour of the key cases, information on the issues and the Justices, and perspective on the larger significance of the Court’s work in this area. There are also lots of fascinating clips from Supreme Court oral arguments in the most significant abortion cases, including Roe v. Wade (1973), to Planned Parenthood v. Casey (1992), Gonzales v. Carhart (2007), and this Term’s Whole Woman’s Health v. Hellerstadt.

Check it out and get up to speed on the issues as we all await the Court’s latest contribution to this dramatic line of cases.

First Amendment, News

A Report from the American Constitution Society Annual Convention

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From Guest Blogger Anna Jirschele, Chicago-Kent, Class of 2018

Lawyers, judges, and legal scholars came together in Washington, D.C., last week for the American Constitution Society’s 15th annual National Convention. Vice President Joe Biden welcomed attendees at the dinner on the opening night.

One particularly interesting panel was on “Race, Speech and Inclusion on Campus.” The panelists included Payton Head, former student body president of the University of Missouri; Wendy Kainer, author, lawyer, and commentator; Theodore Shaw, who had led the NAACP Legal Defense Fund and now teaches at the University of North Carolina School of Law; and Geoffrey Stone, professor at Chicago Law School. Dahlia Lithwick, senior editor at Slate, served as the panel’s moderator.

Payton Head began the conversation by sharing his experiences as the victim of his classmates’ racist behavior at the University of Missouri. He explained that he almost transferred schools because he was so uncomfortable with the racism occurring on the college campus he calls home. Instead of transferring, he fought for a more accepting campus. In 2014 he was elected student body president. When asked about handling diversity on campus, he emphasized the importance of communication.

While communication can help mend a college campus riddled with racism, Head noted that words can also be extremely threatening. His experience with racism at the University of Missouri was, in the words of Theodore Shaw, “emotional violence.” Most of the panelists argued that this kind of emotional violence is not always subject to the protections of the First Amendment and should be regulated.

Geoffrey Stone offered a partial dissent. He explained that higher education is arguably one of the “safest spaces” in the country. And further, if schools are supposed to be preparing their students for the real world, it would be doing them an injustice to shield them from rhetoric on a college campus, when the world is far more harsh than the classroom. Kainer echoed Stone’s comments on the importance of giving students a realistic view of what the world will be like after they graduate. Kainer then began to parse out the difference between “emotionally violent” speech and physical violence, and how college campuses and the First Amendment should approach each.

As the panelists discussed solutions for the issues faced by college campuses regarding race, the First Amendment, and inclusion, they all agreed that healthy debate should be encouraged among a diverse student body. Shaw said that as much as he does not value racist speech on campus, there is the risk that regulating any speech on campus could chill speech for all.

OT 2015

In Praise of the Punt

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The Supreme Court punted yesterday in the latest Affordable Care Act contraception mandate case, Zubik v. Burwell. As was evident during oral arguments in March, on this case the justices fell into a predictable 4-4 liberal-conservative divide. The breakdown was the same one that was on display in the last contraception mandate case, Hobby Lobby v. Burwell, where the five conservative justices sided with the religious liberty claimants and against the government. The difference now, of course, is that Justice Scalia is no longer on the Court, so the 5-4 conservative victory has become a 4-4 tie. In the case of an evenly divided court, the lower court decisions stand, a less-than-ideal scenario in Zubik, since the lower courts were divided on the issue (most federal appeals courts side with the federal government, but one sided with the plaintiffs).

So the justices came together and agreed to punt. They issued an unsigned “per curiam” opinion in which they asked the lower courts to attempt to find compromise solutions that will address the concerns aired by each side of the legal dispute. Following oral argument, the Court had requested supplemental briefing on whether there may a way to satisfy both sides. In the Zubik per curiam, the Court announced, “Both petitioners and the Government now confirm that such an option is feasible.” The Court justified its punt:

Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.

It also went to some length to emphasize that this was indeed a punt, and not some trick play for one side or the other:

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.

The White House immediately declared the opinion as demonstrating why the Senate needs to hold hearings on Judge Garland so the Court can return to full strength. President Obama, like the good sports fan he is, called the punt a punt and suggested he would have liked the outcome better if Judge Garland got his promotion: “I won’t speculate as to why they punted,” he said, “but my suspicion is if we have nine Supreme Court justices instead of eight we might have had a different outcome.”

Liberal commentary on the Court’s opinion has predictably echoed the President’s sentiment, although with a healthier dose of hyperbole. In The Week, Scott Lemieux complains that the Court is not doing its job. The unfilled vacancy “means that the nation’s top appellate court does not so much decide a case as beg litigants and lower courts to resolve the disputes so that they don’t have to.” The dispute has been consigned to an “ongoing legal purgatory.” The Supreme Court “is slowly coming undone,” warned Garrett Epps at The Atlantic. The Zubik opinion “is the latest evidence of its slide toward paralysis.” The Supreme Court is “crippled” lamented the editors of the New York Times:

The court’s job is not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation’s laws. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.

At Slate, Dahlia Lithwick puts a more positive spin on what the Court did in Zubik. “This is the court punting in the most elegant way imaginable, by suggesting that it’s always best to leave the courts and the parties to work it out on their own. Both sides will claim victory.” The Editorial Board at the Washington Post concurred, characterizing the Court’s action as exactly the kind of judicial restraint Chief Justice Roberts advocated at his confirmation hearing. “[T]he court dropped a big hint that this matter might be best dealt with through a less polarized, and polarizing, process,” the Post concluded. “We hope the parties take advantage.” Adam Liptak at the New York Times wrote an article that echoed the themes of the Post’s editorial. “The Supreme Court has gone into hibernation”; it is a “diminished” institution. But this is not necessarily a bad thing. He notes that Justice Kagan has credited the Chief Justice for leading the Court in a more consensus-oriented direction. And he quotes law professor Eric Segall suggesting that the Court’s minimalist approach “may lead to a better solution for both sides.”

(See also—The New York Times has a lively online debate between Epps, Segall, and UPenn Law Professor Kermit Roosevelt on the question, “Is a Deadlocked Supreme Court Such a Bad Thing?”)

Weekly Roundup

Weekly Roundup—April 15, 2016

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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.)

Confirmation, HBO’s new movie on the controversy surrounding Justice Thomas’ appointment to the Supreme Court, airs tomorrow. Back in 1991, Nina Totenberg broke the story of Anita Hill’s sexual harassment accusations on NPR. She joined NPR’s politics podcast to recount her experience. Check out the New York Times review of the movie here.

On Tuesday, supplemental briefs were filed on behalf of both parties in the Zubik v. Burwell case. The Court heard arguments in the case involving contraceptive-coverage and religious liberty last month, but, in an unusual move, the justices then requested more information from the parties. Scotusblog examines this unusual request here.

What’s the latest on Supreme Court nominee Merrick Garland? “Republican senators meeting with Judge Merrick B. Garland seem to take quite a long time to simply say ‘no.’” The Washington Post explains more about Garland’s Capitol Hill introductions this past week. Meanwhile, the ABA moves on with its evaluation of the nominee, conducting interviews with colleagues, lawyers who have argued before him, and the nominee himself, reports Tony Mauro.

And looking ahead to next week’s big case, previews on United States v. Texas, the challenge to President Obama’s immigration order, which the Court will hear on Monday, can be found at CNN, Bloomberg, and SCOTUSBlog. Reuters and HuffPost each have stories about those who would be most affected by the Court’s ruling in the case.

Federalism, OT 2015, Voting Rights

What Happened in Evenwel?

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The big surprise from Monday’s Supreme Court decision in Evenwel v. Abbott was not how the Court ruled, but that it was unanimous in doing so. The case involved the way to measure population in applying the Court’s longstanding “one person one vote” standard when drawing voter districts. The basic question: should voting districts be apportioned by the number of eligible voters or by total population? The Court had never squarely answered this question.  At oral arguments last December, observers read the justices as closely divided. The challengers appeared to have a strong case. In the end, however, this was not so. Although there was some disagreement among the justices, they spoke as one in rejecting the challenger’s claim that the Constitution required apportionment to be based on eligible voters.

So what happened? Here are two hypotheses that attempt to explain why such a deeply divided Court produced no dissents in this case.

(1) Practicalities. The challengers in this case argued that when measuring voting districts under the one person, one vote standard, only eligible voters should be counted. But the relatively well entrenched norm today is to measure total residents. Some scholars have questioned whether it would even be feasible to gather accurate measures of eligible voters.  Justice Ginsburg, writing for the majority noted that to adopt voter-eligible apportionment would “upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” The disruption costs and practical impediments likely pulled on the Court, even those justices who appeared sympathetic to the challengers’ claim. 

(2) Federalism. The Court did not rule that apportionment had to be done one way or another. Ginsburg’s opinion for the Court held that there was no constitutional requirement that it be based on eligible voters. The selection of what measure to use is not dictated by the Court; it is left to the states. This is a resolution that aligns with the federalism sentiments conservatives on the Court tend to embrace. By leaving the issue to the states, Justice Ginsburg probably envisions a continuation of the status quo–states, because of the practicality concerns mentioned above, will continue to rely on total population. But Justice Alito, who appears more sympathetic to the eligible-voter standard, may envision that states will respond by moving away from the total-population standard. This decision, then, left the door open for the Court to return to this issue in the future. In his concurrence, Justice Alito wrote that the Court can decide if a state is allowed to use some measure other than total population “if and when” a districting plan of that nature arises.

“By leaving open the possibility of using the population of voters as a redistricting measure in the future, Ginsburg may have won over the court’s conservative justices,” writes The National Law Journal. “The door is now wide open,” write the editors or USA Today, “for Republican legislators to change state or local redistricting policy to include only voters, and send the question back to the high court.” If indeed this issue returns to the Supreme Court at a future day, this time in the form of a constitutional challenge to a state that chooses to rely on eligible voters in measuring voter districts, then the unanimity of Evenwel is unlikely to be replicated.

Weekly Roundup

Weekly Roundup, April 1, 2016

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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.)

Check out the latest reporting and opinion on Obama’s Merrick Garland nomination from Slate, The Washington Post, NPR, Politico, USA Today, and Vox.

George Mason University voted to rename its law school after Justice Antonin Scalia on Thursday afternoon. News reports from the Washington Post, Above the Law, and Wall Street Journal.

Oral arguments in Zubik v. Burwell, the latest religious liberty challenge to the ACA’s contraception coverage requirement, generated a predictably heated debate. “At its core, this case . . . is a case about religion’s role in civil society,” wrote Linda Greenhouse for the New York Times. Further coverage from The Atlantic, NPR and The Economist.

Is Puerto Rico its own sovereign state? This question is at the heart of the challenge in Puerto Rico v. Sanchez Valle. Read more on The Atlantic.

Justice O’Connor’s animated civics game Win the White House teaches students “to compete civilly against opponents with divergent views on issues like immigration and gun control.” Reporting from the New York Times.

On Tuesday, Friedrichs v. California Teachers Association was left in a 4-4 tie at the Supreme Court, leaving in place the appeals court ruling and snatching away what “right to work” advocates hoped would be a major blow to labor unions. Reporting from BloombergView, Reuters, and The Wall Street Journal.

For more on the challenges of an 8-Justice Court, see Richard Wolf’s article in USA Today. He write: “Change has come to the high court, and the justices are dealing with it in fits and starts.”

Weekly Roundup

Weekly Roundup, March 25, 2016

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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 Supreme Court overturned the conviction of a woman for carrying a stun gun to defend against an abusive former partner in Caetano v. Massachusetts. Reporting from Slate and NPR, with a general roundup of March 22nd’s orders from The New York Times.

In Tyson Foods, Inc. v. Bouaphakeo, the Court sided with the workers who sought overtime pay for putting on and taking off protective gear for their “grueling and dangerous” work. Reporting from The National Law Journal, Forbes, The New York Times and AP.

Various news outlets have begun to research President Obama’s Supreme Court nominee Merrick Garland. The New York Times examines Garland’s record and style, while The Hill looks at some of his most intriguing cases. The Washington Post features impressions of Garland from schoolkids he tutors. Politico wrote that Garland has written “few seminal opinions” that encapsulate his legal ideology—and “that may be a good thing.”

Orrin Hatch continues his campaign to defend Senate Republican refusal to hold hearings for any Obama nominee. He writes on Bloomberg View that “[b]y seeking to thrust a confirmation battle into the middle of a particularly bitter presidential election, President Barack Obama carelessly risks further polarizing and politicizing the confirmation process, and further damaging the integrity and public standing of the Supreme Court as an institution.”

For a useful history lesson on the Supreme Court nomination process, check out this piece on Slate. (Short version: It’s political and always has been.)

What has been the impact of the Texas’s abortion regulation that the Court is currently reviewing? The New York Times and Think Progress report.

In this term’s challenge to the Affordable Care Act, the Court heard arguments on Wednesday in Zubik v. Burwell, brought by religious non-profit groups who don’t want to provide access to birth control for female employees and students, as required under the ACA. Writes Dahlia Lithwick on Slate: “In case you believed the court’s conservatives have maybe come around on Obamacare—well, no. They still hate it.” Additional commentary from The Economist and Bill of Health Blog.

Weekly Roundup

Weekly Roundup, March 18, 2016

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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.)

On Wednesday, President Obama nominated Merrick Garland for the Supreme Court vacancy. The White House launched a twitter account (@SCOTUSnom) to push the case for Garland. Coverage from USA Today, Slate, the Los Angeles Times, Reuters, and the New Yorker. In an interview with NPR, Obama called Garland “one of the best judges not just in the country, but of his generation.”

Senate Republicans have not wavered from their promise to block any consideration for Obama’s nominee. Reporting from the Wall Street Journal, the Washington Post, and Roll Call. Jason Steed at The Huffington Post recommended that Republicans should “take the best they can get” and confirm Garland.

Robert Sangers of Death Penalty Focus interviewed retired Justice Stevens on why he has come to believe we should abolish the death penalty.

Anticipating further developments in the battle between the FBI and Apple over Apple’s refusal to unlock the San Bernardino shooter’s iPhone, NPR reviewed the Supreme Court’s past opinions on phone privacy.

A piece on Hong Kong Lawyer reminisced on a visit the Late Justice Scalia made to Hong Kong in February 2016.

Weekly Roundup

Weekly Roundup, March 11, 2016

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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.)

What did Justice Kennedy whisper to Justice Roberts? The National Law Journal wrote about the history of the Justices’ private bench conversations.

At ISCOTUSnow, Chris Schmidt looked at the usually silent Justice Thomas’s questions from the bench last week and a few of his other contributions to oral argument.

In an unsigned opinion, the Court overturned an Alabama Supreme Court ruling and held that states must recognize an adoption by a same-sex parent that occurred in another state. Reporting from SCOTUSblog, Vox, USA Today, and The New York Times. The Atlantic called it a “Writ of Duh.”

Senate Republicans remain unbending in their opposition to considering any potential nominees for Justice Scalia’s seat.  “The partisan divide . . . has all but guaranteed an eight-justice court for the next year,” reported The National Law Journal. “The significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court,” Judge Richard Posner wrote on The Washington Post. Further reporting from Bloomberg Politics, The Originalism Blog, CNN, and Politico.

Justice Ginsburg is publishing a book, “My Own Words,” in January 2017. The publisher describes it as “a selection of writings and speeches by Justice Ginsburg on wide-ranging topics, including gender equality, the workways of the Supreme Court, on being Jewish, on law and lawyers in opera, and on the value of looking beyond U.S. shores when interpreting the U.S. Constitution.”

On Friday, The Supreme Court blocked a Louisiana law that, according to its critics, would leave the state with just a single abortion clinic. Reporting from the New York Times and The Washington Post.