Wednesday round-up

By on Jul 22, 2015 at 9:28 am

Briefly:

  • At the Blog of Legal Times (subscription or registration required), Tony Mauro reports on a recent poll indicating that “[p]ublic support for life tenure for U.S. Supreme Court justices is decreasing, while the notion of allowing cameras in the court is more popular than ever.”
  • At Library of Law and Liberty, Mark Pulliam continues his series of posts on the road to Abood v. Detroit Board of Education – the decision that the petitioners in next Term’s Friedrichs v. California Teachers Association have asked the Court to overturn.
  • At Cato at Liberty, Roger Pilon discusses the Court’s decision in the same-sex marriage cases, “defending Kennedy’s conclusion inObergefell v. Hodges but taking exception to his reasoning.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Tuesday round-up

By on Jul 21, 2015 at 8:39 am

Briefly:

  • At Education Week’s The School Law Blog, Mark Walsh reports that,”[j]ust weeks after the U.S. Supreme Court said it would revisit the question of affirmative action in higher education, a new report sheds light on how widespread the use of race in admissions remains.”
  • Lawrence Hurley of Reuters discusses a recent poll indicating that “[m]ost Americans would support imposing a term limit” on Supreme Court Justices.
  • At Crime and Consequences, Kent Scheidegger discusses (and pushes back against) a recent article by Adam Liptak on summary dispositions at the Court this Term.
  • In The New York Times, Andrew Ross Sorkin discusses cases in which some Justices have owned stock in companies that have filed amicus briefs and the possibility that the stocks could be held in a blind trust owned by third parties.
  • AJIL Unbound, the online forum of the American Journal of International Law, is hosting a symposium on the Court’s decision in Zivotofsky v. Kerry, the Jerusalem passport case.
  • In a post at Balkinization, Marty Lederman looks at the impact of the Court’s 2014 decision in Burwell v. Hobby Lobby, including the petitions for certiorari that have been filed by non-profit religious organizations; he concludes that “Supreme Court review is now a distinct possibility (although hardly inevitable).”
  • With the Court having announced at the end of last month that it would hear oral arguments in Friedrichs v. California Teachers Association, in which it has been asked to overrule its decision in Abood v. Detroit Board of Education, Mark Pulliam has a post at Library of Law and Liberty in which he discusses the origins of Abood.
  • At The Legal Intelligencer (subscription or registration required), Charles Kelbley discusses the Court’s opinion in the same-sex marriage cases and contends that “a central part of Kennedy’s opinion did focus on several principles and traditions that demonstrate the reasons why marriage is a fundamental constitutional right and how those reasons apply with equal force to same-sex marriage.”
  • At The Blog of Legal Times (subscription or registration required), Tony Mauro reports on Justice Samuel Alito’s comments in a recent interview with Bill Kristol.
  • In an op-ed for The (Eugene, Oregon) Register-Guard, Hayden Rooke-Ley contends that both of the Court’s recent cases upholding the Affordable Care Act’s individual mandate and tax subsidies “are vintage Roberts: They strengthen the court’s institutional role, but are imbued with arguments that entrench Roberts’ conservative jurisprudence.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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The mystery of Fisher II review

By on Jul 21, 2015 at 12:09 am

Analysis

The volatile constitutional issue of race as a factor in selecting the entering classes at public universities and colleges returns to the Supreme Court next Term, but it is far from clear at this point just why the Justices are stepping back into that enduring controversy, and where it will end up.  The Court has a wide range of options on how to decide a new case involving the University of Texas, and lawyers — perhaps necessarily doing some guesswork — may find it quite challenging to shape their written arguments to cover that range.

The Court, of course, never explains fully at the outset why it is taking on a case, although it sometimes rewrites the legal questions either to suit its own preference or to narrow the scope of what it plans to decide.  But, if it does not do that, the only specific clue of what is at stake is the wording of the questions that the lawyers lay before the Court and the arguments in their opening papers, and those may not be enough to solve the mystery.  That seems true of the Court’s review — for the second time in two years — of a claim that Abigail Noel Fisher was denied admission to the university in Austin seven years ago because she is white.

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Event announcement

By on Jul 20, 2015 at 10:16 am

On July 22 at 1 p.m., the State & Local Legal Center will host a webinar on the recently ended Term’s significant cases affecting state and local government.  The discussion, which offers free CLE, will feature John Bursch, Joe Palmore, and Tony Mauro.

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Monday round-up

By on Jul 20, 2015 at 7:51 am

Briefly:

  • At Conversations with Bill Kristol (video), Kristol interviews Justice Samuel Alito about everything from his path to the Court to same-sex marriage and Philadelphia baseball.
  • In The Weekly Standard, Dan McLaughlin suggests that, for “close watchers of the Court, another theme ran through this term: the breadth and depth of Justice Clarence Thomas’s institutional critique of the Court itself.”
  • In The New York Law Journal, Robert Schonfeld discusses the Court’s decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; he contends that the decision “is significant because it did lay down guidelines for what the court would deem to be a proper use of the ‘disparate impact’ theory.”
  • At Jost on Justice, Kenneth Jost argues that if Richard Glossip, the named petitioner in Glossip v. Gross, is executed in September, “the case will be one more example of a system that defies best efforts to be fair and just or even simply to make sense.”
  • At DRI Appellate Blog, Steven Klepper concludes that, “no matter where you fall on the liberal-conservative spectrum, state supreme court justices’ judgment . . . is like a better indicator than opinions by” federal appellate judges.
  • In the Supreme Court Brief (subscription required), Steffen Johnson looks at the Term’s “greatest hits” for business.
  • In an op-ed for the Supreme Court Brief (subscription required), Erwin Chemerinsky argues that, despite the popular characterization of the just-ended Term as “liberal,” “a closer examination of the cases shows a much more complicated story, including the liberal justices being in the majority in decisions that should be of great concern to progressives.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Friday round-up

By on Jul 17, 2015 at 11:12 am

The Court’s decision in Obergefell v. Hodges, holding that states must license marriages between same-sex couples, continues to spawn coverage and commentary. Elliot Spagat of the Associated Press (via Yahoo! News) reports on comments by Justice Anthony Kennedy, the author of the Court’s opinion, who “likened controversy over the court’s decision to allow gay marriage to public reaction over the 1989 ruling that said burning an American flag was protected free speech.” And at the LGBTQ Policy Journal, Sophia Carrillo looks at the influence of the Court’s 2003 decision in Lawrence v. Texas (and the dissent from that decision) on the same-sex marriage cases. Continue reading »

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Thursday round-up

By on Jul 16, 2015 at 7:43 am

Briefly:

  • In The Huffington Post, Alan Morrison weighs in on Evenwel v. Abbott, the “one person, one vote” case; he argues that, to “assure that states doing reapportionment follow the law . . . there must be one right answer to the question of what the baseline should be for drawing districts. The answer that has consistently been used is population.”
  • In The Washington Post, Chris Cillizza looks at the 2016 presidential election and its potential impact on the Court, describing the stakes as “remarkably high”: “Who wins the White House will shape not only the country over the following four years but could well leave an impact on the court that stretches decades beyond that.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Wednesday round-up

By on Jul 15, 2015 at 8:38 am

Briefly:

  • In a story for The National Law Journal (subscription or registration required), Tony Mauro reports on some of the highlights of Ted Cruz’s comments about the Court and its members in his new autobiography.
  • In another story for The National Law Journal (subscription or registration required), Mauro reports that last night the Court “turned away a full-scale challenge to capital punishment in the case of a convicted murderer in Missouri set for execution at 6 p.m.”
  • In his column for The Atlantic, Garrett Epps looks at Justice Clarence Thomas, who will soon begin his twenty-fifth year on the Court, and suggests that Thomas has “always marched to the beat of his own conservative drum, and lately the rhythms of that drum have become more distinct.”
  • In an op-ed for the Los Angeles Times, Erwin Chemerinsky argues that the “tone” in Justice Antonin Scalia’s recent opinions “is setting a terrible example for young lawyers.”
  • In The Wall Street Journal, Jess Bravin reports that, with its victory in Obergefell v. Hodges, the “next act” for the advocacy group Freedom to Marry will be “going out of business.”
  • The American Bar Association recently hosted a teleforum on the Court’s decision in King v. Burwell and the Chevron
  • At casetext, Michael Foreman describes the Court’s recent decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project as “a significant victory for those who seek to prevent housing discrimination in all its forms,” but he cautions that it also “provides an avenue to try to escape liability by allowing arguments for a very low burden to justify the use of discriminatory policies.”
  • At Cato at Liberty, Ilya Shapiro urges the Court to grant review in a Wisconsin case involving an aide to Governor Scott Walker so that it can “articulate meaningful requirements for specificity and reasonableness for electronic search warrants.”
  • At the American College of Environmental Lawyers, Renee Cipriano characterizes the Court’s recent decision in Michigan v. EPA as one that “raises more questions than it answers,” while in a separate post Leslie Carothers observes that, despite the decision, “commentators on both sides of the issues agree that major benefits of the regulation will not be lost.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Commentary

Amid widening claims that religious liberty in America is under siege, the Supreme Court over the past year and and a half has reacted eight times to one of the most intense and emotionally charged conflicts within that broader controversy.  Only once has the Justices’ reaction to that particular conflict led to a full-scale decision, and yet all of its actions, taken together, do stand for something.

This is the controversy over the contraceptive, or birth-control, mandate in the Affordable Care Act – a high-stakes legal feud that has been unfolding in scores of lawsuits across the country.  It has been running for five years, and so is further along than the just-beginning conflict over the impact on religious belief of the Court’s same-sex marriage ruling last month.

The opposite sides in the birth-control dispute for years have been talking past each other about what the Supreme Court has done about that so far, and what it means, and both sides continue to try to persuade the Court to see the controversy their way.

There is a lot involved, but let’s try to make it simple.

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Event announcements

By on Jul 14, 2015 at 4:14 pm

On July 16, the ABA Section of Administrative Law and Regulatory Practice will host a teleconference discussion of the impact of Michigan v. EPA on cost-benefit requirements. More information is available on the ABA’s website.

Also on July 16, the New York City Bar Association will host its annual Supreme Court in review program. For a full agenda, and to register, visit the New York City Bar’s website.

 
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