451px-Abraham_Lincoln_head_on_shoulders_needlepointOn November 13, Justice Elena Kagan hosted the Supreme Court Historical Society’s fourth and final 2014 Leon Silverman lecture. Professor Lucas Morel of Washington and Lee University was the lecturer.

“My topic this evening, President Lincoln, the Supreme Court, and the Civil War, is pretty broad,” Morel began by way of explaining that he would not be discussing some of the old chestnuts traditionally encompassed by that category, such as Ex parte Merryman, and Lincoln’s suspension of habeas corpus, or the Prize Cases, and his blockade of the Southern ports. Instead, Morel concentrated on Lincoln’s sense of justice, particularly as reflected in what Morel considers to be Lincoln’s greatest speech (“It’s not Gettysburg!”): his second inaugural address. Continue reading »

Posted in Everything Else

Tuesday round-up

By on Nov 18, 2014 at 5:42 am

Yesterday the Court issued orders from its November 14 Conference.  It added one new argument to its docket for the Term by granting review in, and immediately consolidating, two cases involving bankruptcy and “underwater” mortgages:  Bank of America v. Caulkett and Bank of America v. Toledo-Cardona.  Lyle Denniston covered yesterday’s orders for this blog; other coverage comes from Jaclyn Belczyk of JURIST.    Continue reading »


Petition of the day

By on Nov 17, 2014 at 10:16 pm

The petition of the day is:


Issue: Whether, as the Ninth Circuit held, in open and admitted conflict with other courts of appeals, a district court may exclude expert testimony as unreliable only when it is based on a “faulty methodology or theory,” or whether, as the Third Circuit and other circuits have held, “any step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible.”

FURTHER UPDATE Tuesday 1:24 p.m.   The Michigan petition — DeBoer v. Snyder — has been docketed as 14-571.   The Kentucky petition — Love v. Beshear — has been docketed as 14-574.  All four of the challenges to the Sixth Circuit’s decision are now formally at the Court, awaiting state responses.

UPDATED Monday 6:05 p.m.  On Friday, the blog posted a story on same-sex marriage filings that day. It did not have a link to the petition in the Tennessee case. It can be read here.


The same-sex marriage constitutional controversy reached the Supreme Court on Monday in its simplest form, testing the constitutionality of a state’s denial of a right to marry for same-sex couples.  That is the sole issue raised in a new petition filed by a Michigan lesbian couple who want to marry and want the right for both parents to adopt their three children.  Michigan denies both.

Continue reading »

Last week’s argument audio

By on Nov 17, 2014 at 2:47 pm

Oyez has posted audio recordings of last week’s oral arguments. The Court heard arguments last week in:

Posted in Merits Cases

FURTHER UPDATE Tuesday 6:46 p.m.  The UNC-Chapel Hill case has now been docketed as 14-954 and has been assigned to District Judge Thomas D. Schroeder of Winston-Salem, in the Middle District. 


UPDATED 6:48 p.m.   The Harvard case has been docketed by the U.S. District Court in Boston as 14-14176.  It has been assigned to District Judge Denise J. Casper.   The UNC-Chapel Hill case does not appear to have been docketed yet.


The saga over the use of race in selecting new college entrants that began with the Supreme Court’s famous ruling in Regents of the University of California v. Bakke nearly four decades ago now has a new chapter — and it is intended to be the final one.  Two lawsuits, filed Monday in federal courts against two major universities, are crafted to eventually put before the Supreme Court an explicit plea to overrule Bakke and later decisions on the issue.

The lawsuits are, in a way, sequels to the Court’s ruling last year in Fisher v. University of Texas at Austin — a case that is itself on the way back to the Supreme Court — but their goal is a more sweeping one than the one advanced so far in the Fisher case.

Harvard University — ironically, the same institution that had provided an affirmative action model that the Supreme Court embraced in the Bakke case — is one of the targets of the new challenges.  The other lawsuit names the University of North Carolina at Chapel Hill.

“Given what is occurring at Harvard and at other schools,” the lawsuit filed in Boston argued, “the proper response is the outright prohibition of racial preferences in university admissions — period.  Allowing this issue to be litigated in case after case will only perpetuate the hostilities that proper consideration of race is designed to avoid.”

The North Carolina complaint, filed in Greensboro, often uses some of the same language as in the Harvard case.  It asserted that “UNC-Chapel Hill and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification.  As in the past, they will use any leeway the Supreme Court grants them to use racial preferences in college admissions — under whatever rubric — to engage in racial stereotyping and other forms of discrimination to advance their social-engineering agenda.”

Both lawsuits were filed by an organization headed by the same civic activist and strong foe of race-based policymaking, Edward Blum, who put together the Fisher case and is now planning to return that case to the Court in coming weeks.   The organization suing now is the Students for Fair Admissions, Inc., a non-profit advocacy group created to represent students who fail to gain admission to major colleges  and believe that their race was the reason; Blum is its president.

He also is president of the Project on Fair Representation, which has been closely tied to the Fisher case.

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal.  Instead, they contend that diversity can be achieved by race-neutral alternatives, so public colleges and those that receive federal funds should be ordered to end, altogether, any use of race in the process.

Besides Bakke, the lawsuits specifically aim at the Court’s 2003 decision in Grutter v. Bollinger.  In last year’s Fisher decision, the lawyers for the disappointed University of Texas applicant, Abigail Noel Fisher, did not ask the Court to strike down the Grutter precedent.  Even so, the resulting decision in Ms. Fisher’s case largely supplanted Grutter with a new and more demanding test for colleges when they use race as a factor in admissions.

Because these cases will proceed initially in federal district courts, the judges assigned to them will not have the power to overrule any Supreme Court decision.  The Court has made it clear repeatedly that, if any of its rulings is to be set aside, only the Justices have the authority to do so.

However, the Harvard and UNC lawsuits clearly were prepared to build a case in lower courts so that, perhaps two or three years from now, the lawsuits could reach the Supreme Court for an ultimate test of affirmative action, at least in college admissions.

Because Harvard is a private university, it was sued under Title VI of the 1964 Civil Rights Act, which bars racial discrimination in education at institutions that receive federal funds — as Harvard clearly does.

UNC-Chapel Hill is a state university, so it is subject to the Fourteenth Amendment’s guarantee of legal equality.

Each lawsuit names only the Students for Fair Admissions as the suing party.  But each also refers to an anonymous applicant who is said to have been highly qualified but did not get into the university being sued, allegedly because of a racial factor in the admissions policy, and each also mentions potential future applicants who seek protection against the chance that they would be denied admission because of their race, based on the admissions policies said to be to blame.

The filings in each case are lengthy, primarily because each goes into extended detail about the admissions policies being challenged, to support the argument that they cannot satisfy “strict scrutiny” and that the same goal of campus diversity could be achieved — and even more successfully — by using race-neutral alternatives to attract minority students.

Among the alternatives suggested in the Harvard case would be the elimination of special admissions opportunities for the children of Harvard alumni.   About 30 percent of such “legacy” applicants are admitted, the complaint said.  That means that there is “a competitive advantage to mainly white, wealth applicants, while undermining the chances for admission of socioeconomically disadvantaged and minority applicants,” it added.

The complaint also contended that Harvard has a policy of giving preferences to applicants whose parents make significant money contributions to the university, and it suggested that “minority students are far less likely to be children of wealth donors.

In the North Carolina-Chapel Hill case, one non-racial alternative the complaint mentioned would be a percentage plan, under which the university would guarantee admission to a set percentage of graduates from high schools in the state.  (The University of Texas at Austin had just such a program, before it added to that a new program in which race plays some role in the admissions process.)

The Harvard complaint, while making a broad-based challenge to its admissions policy overall, is focused on its claim that those policies have the main effect of discriminating against high-achieving Asian-American applicants.

The case against UNC-Chapel Hill focuses on the claimed negative impact on both African-American and Asian-American applicants.  At UNC, the complaint argued, the university claims that it is only using race as a “plus” factor; in reality, the complaint contended, race is the dominant factor in its selection process.




The Supreme Court, taking on a bankruptcy issue that grew out of the collapse of the U.S. housing market, agreed on Monday to sort out when a mortgage debt on a home that has lost its value can be completely wiped out.  At issue in a pair of cases is the so-called “strip off” in bankruptcy of a mortgage that is ranked lower than another loan when the mortgaged property is worth so little that it could not cover either debt.

The Court, in the consolidated cases of Bank of America v. Caulkett and Bank of America v. Toledo-Cardona, will be deciding whether a “strip off” of a mortgage is to be barred in the same way that a “strip down” already is, under a 1992 Supreme Court ruling (Dewsnup v. Timm).

Continue reading »

Today’s orders (UPDATED)

By on Nov 17, 2014 at 9:39 am

The Court granted two cases this morning, consolidating them for one hour of oral argument.  The grants came in Bank of America v. Toled0-Cardona and Bank of America v. Caulkett, both involving mortgage liens and Section 506(d) of the Bankruptcy Code.

The Court did not call for the views of the Solicitor General in any new cases today.  It issued one per curiam opinion, reversing and remanding the decision of the Ninth Circuit in Glebe v. Frost.

The Court apparently did not act on Berger v. ACLU or Walker v. Texas Division, Sons of Confederate Veterans, two cases from North Carolina and Texas, respectively, involving the government speech doctrine and specialty license-plate programs.

We will have more details on today’s orders soon.

Posted in Everything Else

Monday round-up

By on Nov 17, 2014 at 6:35 am

The Jerusalem passport case Zivotofsky v. Kerry, argued earlier this month, continues to generate commentary. At The Volokh Conspiracy, Eugene Kontorovich discusses the significance of the Constitution’s Property  Clause, which gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” to a possible resolution of the case.  And Marty Lederman discusses the same argument at Just Security. Continue reading »

Posted in Round-up
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