Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of the Project on Fair Representation, which provided counsel to the petitioners in Shelby County v. Holder and Evenwel v. Abbott.

…[In] a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution….
Alexander Hamilton, writing The Federalist No. 78

…I practiced the law, I practic’ly perfected it
I’ve seen injustice in the world and I’ve corrected it…
Alexander Hamilton, rapping in the musical Hamilton

Justice Antonin Scalia’s successor could reaffirm, or significantly reshape, our nation’s jurisprudence in a handful of critical areas, but none as profoundly important as voting rights. For the last twenty-five years, the Court, in a number of landmark cases, has restored the equal sovereignty of the states (Shelby County v. Holder), narrowed the use of race in redistricting (Bush v. Vera and Shaw v. Reno), and avoided the morass of partisan gerrymandering (Vieth v. Jubelirer) – results that most conservatives and libertarians have applauded. However, should Scalia’s replacement join with the current four-Justice liberal bloc in future cases involving these controversies, voting rights jurisprudence in the coming years would be dramatically different.

For now, Scalia’s replacement may confront two flashpoints: a new coverage formula for Section 5 of the Voting Rights Act and the 2020 round of reapportionment and redistricting.

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Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine.

When it comes to jurisprudence on voting rights, the Supreme Court stands at a crossroads. If the Court ends up with a new liberal majority, it could limit the ability of states to pass restrictive voting rules such as voter identification laws, boost minority voting power in legislative and congressional districts under the Voting Rights Act, and continue using the constitutional racial gerrymandering cause of action to protect minority opportunity districts.

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Introduction: The Court after Scalia

By on Aug 30, 2016 at 2:21 pm

In the weeks that followed the February 13 death of Justice Antonin Scalia, it became clear that his absence was having a significant impact on the Court. Not only was the Court granting review in fewer cases than normal, but it deadlocked on several in which it had heard oral argument and issued rulings that had all the hallmarks of a compromise in others.

With Senate Republicans still refusing to act on President Barack Obama’s nomination of Chief Judge Merrick Garland to succeed Scalia, it has become even more clear that the question of who will fill the vacancy hinges on the 2016 presidential election. If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left. But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.

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Tuesday round-up

By on Aug 30, 2016 at 2:13 pm

Yesterday a Virginia school board asked the Supreme Court to review a decision by a federal appeals court in favor of a transgender student who identifies as a boy and wants to use the boys’ bathroom. Amy Howe covers the petition for this blog, with additional coverage coming from Mark Walsh of Education Week.

Yesterday the Court turned down the Libertarian Party of Ohio’s request to have its candidates, Governors Gary Johnson and Bill Weld, listed with their party affiliation on the state’s ballot. Coverage comes from Rick Hasen for his Election Law Blog and Mark Hensch of The Hill.

Briefly:

  • For Cato at Liberty, Ilya Shapiro and Thomas Berry argue that the Court “should step in now” in the case of a political action committee (“PAC”) challenging the maximum election donation limit for newer PACs, even though the Fourth Circuit held the case moot because the limits no longer applied to the PAC.
  • In an op-ed for The Hill, Will Rosenweig – arguing that the next president will affect the country in myriad ways that will never end up at the Court – criticizes the suggestion that “nothing is more important than the Supreme Court” in the next election.
  • At Empirical SCOTUS, Adam Feldman finds (and seeks to explain) “clear differences in the way lower courts have implemented” last Term’s rulings in Hurst v. Florida and Whole Woman’s Health v. Hellerstedt.
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Urging the Justices to resolve the dispute over the use of school bathrooms by trangender students “once and for all,” today a Virginia school board asked the Supreme Court to examine a decision by a federal appeals court in favor of a transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom.  In June, a federal trial court ordered the school board to permit the student, “G.G.”, to use the boys’ bathrooms at Gloucester High School when school begins next month.  But the Supreme Court stepped in and put that ruling on hold, over the protests of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, to give the school board time to file a petition seeking review on the merits.  The board filed that petition today.  Continue reading »

Petition of the day

By on Aug 29, 2016 at 11:02 pm

The petition of the day is:

15-1442

Issue: Whether the Multistate Tax Compact, a multistate agreement that addresses significant aspects of the state taxation of multistate businesses, has the status of a contract that binds its signatory States.

Monday round-up

By on Aug 29, 2016 at 10:34 am

Legal action related to transgender Americans and the likelihood that those disputes will end up at the Supreme Court continue to generate coverage. Cristian Farias of The Huffington Post reports on Texas’s lawsuit challenging the federal government’s recent instructions for schools on implementing transgender-inclusive policies, while at his eponymous blog Lyle Denniston reports on a ruling Friday by a federal judge in Winston-Salem blocking enforcement against three North Carolina residents challenging the state’s “bathroom bill” (H.B. 2) while the measure is tested in courts.

Briefly:

  • Jeff John Roberts of Fortune reports that Google has asked the Court to resolve a dispute over whether the Chrome browser infringes on someone else’s proprietary “web browser process,” a “nebulous phrase” the company would like the Court to define.
  • For the Criminal Justice Section of the American Bar Association, Rory Little reviews the criminal cases from the Supreme Court’s past Term.
  • In an op-ed for Cleveland.com, Avidan Cover argues that there is a “Supreme Court Effect,” in which the “judiciary’s ongoing support for police officers’ unlimited discretion to stop and arrest people” emboldens officers to act aggressively while protecting them from civil and criminal liability for excessive force.
  • At his eponymous blog, Kenneth Jost compares contemporary class-action waivers, in which employers require by contract that employee disputes be resolved individually through arbitration, with “yellow dog” contracts, agreements declared illegal by Congress in 1932 in which employers required potential employees to promise not to join a union, on the grounds that both “similarly force workers to forgo a right seemingly guaranteed by federal labor law.”
  • For his Election Law Blog, Rick Hasen reports that, as a “precursor to asking for an emergency stay from the Supreme Court,” plaintiffs in Ohio have sought a stay from the Sixth Circuit of its recent ruling allowing Ohio to eliminate “Golden Week,” a week allowing early registration and voting for the November election.
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Petition of the day

By on Aug 26, 2016 at 11:11 pm

The petition of the day is:

16-149

Issue: (1) Whether the Federal Employees Health Benefits Act (“FEHBA”) preempts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts; and (2) whether FEHBA’s express-preemption provision, 5 U.S.C. § 8902(m)(1), which expressly “preempt[s] any State or local law” that would prevent enforcement of “the terms of any contract” between the Office of Personnel Management and a carrier which “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits)[,]” violates the Supremacy Clause.

Earlier this year, the Court threw out former Virginia governor Bob McDonnell’s conviction on federal corruption charges and sent the case back to the U.S. Court of Appeals for the Fourth Circuit.  Both sides then asked the court of appeals to put the case on hold for thirty days.  The court of appeals agreed, instructing McDonnell and the federal government to “file a proposed briefing or a joint status report on or before August 29, 2016” – today.

In a filing today, the government and McDonnell’s lawyers asked the court to continue to keep the case on hold for three more weeks.  They explained that the two sides “have been conferring, and that process has progressed, but has not been completed in the Department of Justice.”  The filing also assured the court that the two sides would not ask to postpone proceedings in the case – suggesting that in three weeks we may know whether prosecutors intend to pursue charges against McDonnell (and his wife, Maureen) again.

Friday round-up

By on Aug 26, 2016 at 12:05 pm

Yesterday the Obama administration asked the Supreme Court to leave in place a lower court ruling striking down North Carolina’s controversial election law, which included a requirement that voters provide a government-issued photo ID. Amy Howe covered the request for this blog, with other coverage coming from Lyle Denniston at his blog, Jessie Hellmann of The Hill, Pete Williams of NBC, and Rick Hasen at his Election Law Blog.

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