FedSoc Blog

SCOTUS Opinion 1/26/2015


by Publius
Posted January 26, 2015, 10:18 AM

SCOTUS Opinion 1/26/2015The Supreme Court released one opinion this morning:

M & G Polymers USA v. Tackett: In an opinion by Justice Thomas, a unanimous Court held that the Sixth Circuit erred in reasoning that collective bargaining agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The judgment of the Sixth Circuit was vacated and the case remanded for application of ordinary principles of contract law.  Per Justice Thomas for the Court:

"This case arises out of a disagreement between a group of retired employees and their former employer about the meaning of certain expired collective-bargaining agreements. The retirees (and their former union) claim that these agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The employer, for its part, claims that those provisions terminated when the agreements expired. The United States Court of Appeals for the Sixth Circuit sided with the retirees, relying on its conclusion in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479 (1983), that retiree health care benefits are unlikely to be left up to future negotiations. We granted certiorari and now conclude that such reasoning is incompatible with ordinary principles of contract law. We therefore vacate the judgment of the Court of Appeals and remand for it to apply ordinary principles of contract law in the first instance."

Justice Ginsburg filed a concurring opinion, which was joined by Justices Breyer, Sotomayor, and Kagan, suggesting that the employer was not necessarily certain to win on remand.

Categories: SCOTUSreport

SCOTUS Opinions 1/21/2015


by Publius
Posted January 21, 2015, 11:04 AM

SCOTUS Opinions 1/21/2015The Supreme Court released three opinions this morning:

(1) Hana Financial v. Hana Bank: In an opinion by Justice Sotomayor, the Court held unanimously that the question whether two trademarks may be tacked for purposes of determining priority is a question for the jury. The judgment of the Ninth Circuit was affirmed.  Per Justice Sotomayor:

​"​Rights in a trademark are determined by the date of the​ ​mark’s first use in commerce. The party who first uses a​ ​mark in commerce is said to have priority over other​ ​users. Recognizing that trademark users ought to be​ ​permitted to make certain mo​​difications to their marks​ ​over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a​ ​new mark with the priority position of an older mark.​ ​This doctrine is called “tacking,” and lower courts have​ ​found tacking to be available when the original and revised marks are “legal equivalents” in that they create th​e​ same, continuing commercial impression. The question​ ​presented here is whether a judge or a jury should determine whether tacking is available in a given case. Because the tacking inquiry operates from the perspective of​ ​an ordinary purchaser or consumer, we hold that a jury​ ​should make this determination.​"​

(2) Gelboim v. Bank of America: In an opinion by Justice Ginsburg, the Court held unanimously that a lower court order dismissing petitioners' case in its entirety removed petitioners from the consolidated multidistrict litigation proceeding, thereby triggering their right to appeal under §1291. The judgment of the Second Circuit was reversed and the case remanded. Per Justice Ginsburg:

​"​An unsuccessful litigant in a federal district court may​ ​take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U. S. C. §1291. The question here presented: Is the right to appeal secured by​ ​§1291 affected when a case is consolidated for pretrial​ ​proceedings in multidistrict litigation (or MDL) authorized​ ​by 28 U. S. C. §1407?​....The Court of Appeals for the Second Circuit, acting on​ ​its own motion, dismissed the appeal filed by​ [petitioners]​ for want of appellate jurisdiction. We reverse the​ ​Second Circuit’s judgment and hold that the ​petitioners' complaint retained its independent status for​ ​purposes of appellate jurisdiction under §1291. Petitioners’ right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multi​district proceedings in all of the consolidated cases.​"​

(3) Dep't of Homeland Security v. MacLean: In an opinion by Chief Justice Roberts, the Court held by a vote of 7-2 that federal air marshal MacLean's disclosure was not "specifically prohibited by law." The judgment of the Federal Circuit was affirmed. Per the Chief Justice:

​"​Federal law generally provides whistleblower protections to an employee who discloses information revealing​ ​“any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5​ ​U.​ ​S. C. §2302(b)(8)(A). An exception exists, however, for​ ​disclosures that are “specifically prohibited by law.”​ ​Ibid.​ ​Here, a federal air marshal publicly disclosed that the​ ​Transportation Security Administration (TSA) had decided to cut costs by removing air​ ​marshals from certain​ ​long-distance flights. The​ ​question presented is whether​ ​that disclosure was “specifically prohibited by law.”​"​ ​According to the majority, the disclosure was prohibited neither by TSA regulations on sensitive security information​ (because they did not count as "law" for purposes of the statute in question), nor by the statutory provision that empowers the TSA to prescribe regulations on information disclosure.  Concerns regarding public endangerment as a result of whistleblower disclosures, while legitimate, must be addressed by Congress or the President, not the Court.

Justice Sotomayor dissented, joined by Justice Kennedy.

Categories: SCOTUSreport

SCOTUS Opinions 1/20/15: Holt v. Hobbs & Teva Pharmaceuticals v. Sandoz


by Publius
Posted January 20, 2015, 12:37 PM

SCOTUS Opinion 1/20/15The Court today issued two merits opinions separately from the order list:

(1)  Holt v. Hobbs, with Justice Alito issuing the opinion for a unanimous Court.  The Court held that an Arkansas correctional policy requiring a Muslim inmate to shave his 1/2 inch beard violated the federal RLUIPA statute.  The Eighth Circuit was reversed and the case remanded for further proceedings:

​"​Petitioner Gregory Holt, also known as Abdul Maalik​ ​Muhammad, is an Arkansas inmate and a devout Muslim​ ​who wishes to grow a​ 1/2​-inch beard in accordance with his​ ​religious beliefs. Petitioner’s objection to shaving his​ ​beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from​ ​growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as​ ​applied in this case, violates the Religious Land Use and​ ​Institutionalized Persons Act of 2000 (RLUIPA)​...which prohibits a state​ ​or local government from taking any action that substantially burdens the religious exercise of an institutionalized​ ​person unless the government demonstrates that the​ ​action constitutes the least restrictive means of furthering​ ​a compelling governmental interest. We conclude in this case that the Department's policy substantially burdens petitioner's religious exercise.​ Although we do not question the importance of the Department’s interests in stopping the flow of​ ​contraband​ ​and facilitating prisoner identification, we do doubt​ ​whether the prohibition against petitioner’s beard furthers​ ​its compelling interest about contraband. And we conclude that the Department has failed to show that its​ ​policy is the least restrictive​ ​means of furthering its compelling interests. We thus reverse the decision of the​ ​United States Court of Appeals for the​ ​Eighth Circuit.​"​

​Justice Ginsburg filed a concurring opinion in which Justice Sotomayor joined, and Justice Sotomayor also filed a concurring opinion.​

​(2) Teva Pharmaceuticals USA v. Sandoz with Justice Breyer issuing the opinion of the Court and holding that a clear error rather than de novo standard applies to appellate review of a trial court's resolution of subsidiary factual matters in the course of construing a patent claim.  By a vote of ​7-2 the decision of the Federal Circuit is vacated and remanded:

​"​I​n ​Markman​ ​v.​ ​Westview Instruments, Inc., 517 U. S.​ ​370 (1996), we explained that a patent claim is that “por­tion of the patent document that defines the scope of the​ ​patentee’s rights.”​ ​Id.,​ ​at 372. We held that “the con­​​struction of a patent, including terms of art within its​ ​claim,” is not for a jury but “exclusively” for “the court” to​ ​determine.​ ​Ibid. That is so even where the construction​ ​of a term of art has “evidentiary underpinnings.”​ ​Id.,​ ​at​ ​390.​ ​Today’s case involves claim​ ​construction with “eviden­tiary underpinnings.​"...​And, it requires​ ​us to determine what standard the Court of Appeals​ ​should use when it reviews a trial judge’s resolution of an​ ​underlying factual dispute. Should the Court of Appeals​ ​review the district court’s factfinding​ ​de novo​ ​as it would​ ​review a question of law? Or, should it review that factfinding as it would review a trial judge’s factfinding in​ ​other cases, namely by taking​ ​them as correct “unless​ ​clearly erroneous?” See Fed. Rule Civ. Proc. 52(a)(6). We​ ​hold that the appellate court must apply a “clear error,”​ not a de novo, standard of review."

​Justice Breyer's opinion for the Court was joined by all justices except Thomas and Alito.  Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Categories: SCOTUSreport

SCOTUS Opinions 1/14/2015


by Publius
Posted January 14, 2015, 10:39 AM

SCOTUS Opinions 1/14/2015The Court issued two opinions today:

(1) T-Mobile South, LLC v. City of Roswell. (Telecomms case)  By a vote of 6-3 the judgment of the Eleventh Circuit is reversed and the case remanded. The issue and outcome are summarized in the opening paragraph of Justice Sotomayor's opinion for the Court:

"The Telecommunications Act of 1996 provides, in relevant part, that '[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.' 110 Stat. 151, 47 U. S. C. §332(c)(7)(B)(iii). The question presented is whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers. We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice."

Justice Sotomayor was joined by Justices Scalia, Kennedy, Breyer, Alito, and Kagan.  Justice Alito also filed a concurring opinion.  Chief Justice Roberts dissented, joined by Justice Ginsburg, and by Justice Thomas as to Part I.  Justice Thomas also filed a separate dissenting opinion.

(2) Jennings v. Stephens. (Habeas case).  By a vote of 6-3, the judgment of the Fifth Circuit is reversed and the case remanded. Justice Scalia delivered the opinion of the Court, compressed here into the following summary:

"Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability....[A]n appellee who does not cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary....Since Jennings did not cross-appeal the denial of his Spisak theory [rejected below], we must determine whether urging that theory sought to enlarge his rights or lessen the State’s under the District Court’s judgment granting habeas relief....Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim."

Justice Scalia was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas filed a dissenting opinion, which Justices Kennedy and Alito joined.

Categories: SCOTUSreport

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam Opinion


by Publius
Posted November 17, 2014, 10:02 AM

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam OpinionThe Order List is here.

(1) The Court granted cert today in Bank of America v. Caulkett and Bank of America v. Toledo-Cardona.  The question presented in those cases is: "Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral."

(2) The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument was granted in several cases: B&B Hardware v. Hargus Indus., Alabama Dept of Revenue v. CSX Transp., and Hana Financial v. Hana Bank.

(3) Prof. Jeffrey Fisher (Stanford) was appointed counsel in Ohio v. Clark.

(4) The Court issued a per curiam opinion reversing the Ninth Circuit in Glebe v. Frost, a habeas case.  Frost had been convicted of several bank robberies but argued that his state trial court improperly forced him to chose between a theory of duress and contesting criminal liability.  The state supreme court (Washington) agreed, but deemed the error non-structural and ultimately harmless in light of the evidence presented and the proper jury instructions issued.  The District Court dismissed Glebe's habeas petition but the Ninth Circuit reversed, finding structural error  Per SCOTUS' reversal of the Ninth Circuit today:

"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court of Appeals had power to grant Frost habeas corpus only if the Washington Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Here, the Ninth Circuit held that the Washington Supreme Court unreasonably applied clearly established federal law by failing to classify the trial court’s restriction of closing argument as structural error. That decision cannot stand. Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. Neder v. United States, 527 U. S. 1, 8 (1999). Only the rare type of error—in general, one that “‘infect[s] the entire trial process’” and “‘necessarily render[s] [it] fundamentally unfair’”—requires automatic reversal. Ibid. None of our cases clearly requires placing improper restriction of closing argument in this narrow category."

Categories: SCOTUSreport

SCOTUS Orders: No new grants, one original action, no action on King v. Burwell


by Publius
Posted November 03, 2014, 10:35 AM

SCOTUS OrdersThere were no new cert grants today (though the Court did grant the filing of a complaint in an original action involving the states of Florida and Georgia, see below).  No action was taken on the latest Affordable Care Act case (King v. Burwell)--the Court may be waiting to see what the DC Circuit does en banc. The order list is here.

There were a few notable orders in pending cases:

1) Texas v. New Mexico (original action): A. Gregory Grimsal was appointed special master

2) Florida v. Georgia (original action): Florida's motion for leave to file a bill of complaint was granted.  The question presented is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region.

3) Young v. UPS:  Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted.  The question presented in this case is whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Notable cert denials included: The Episcopal Church v. The Episcopal Diocese of Fort Worth:  Questions presented: (1) Whether the First Amendment or Jones v. Wolf requires courts to enforce express trusts recited in general-church governing documents (as some jurisdictions hold), or whether such a trust is enforceable only when it would otherwise comply with state law (as others hold); (2) whether retroactive application of the neutral-principles approach infringes free-exercise rights; and (3) whether the neutral-principles approach endorsed in Jones remains a constitutionally viable means of resolving church-property disputes, especially in light of Hosanna-Tabor v. EEOC.

Categories: SCOTUSreport

New Post-Decision SCOTUScast: Halliburton Co. v. Erica P. John Fund, Inc.


by SCOTUScaster
Posted July 23, 2014, 1:31 PM

On June 23, 2014, the Supreme Court issued its opinion in Halliburton Co. v. Erica P. John Fund, Inc. This case presented two questions. The first was whether the Supreme Court should overrule or modify its decision in Basic Inc. v. Levinson, to the extent that it recognizes a presumption of classwide reliance derived from the “fraud-on-the market theory,” which posits that a company’s material misrepresentation regarding a security traded in the open market that affects the price of the security is presumed to have been relied on by a plaintiff who purchased the security and suffered a loss; and second whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

In a unanimous opinion delivered by Chief Justice John Roberts, the Court noted that under section 10(b) of the Securities Exchange Act of 1934 and the SEC’s rule 10(b)(5), investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant's misrepresentation in deciding to buy or sell a company's stock. In Basic, the Court held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information-including material misstatements. Given that Congress can change the law, Halliburton failed to provide the “special justification” necessary for the Court to overrule its prior decision in a statutory case. For the same reason, class action plaintiffs may rely on the Basic presumption to avoid having to directly prove in the first instance that the misrepresentation affected the stock price at the class certification stage. But nothing in Basic or any other Supreme Court decision prevents defendants from defeating this presumption at the class certification stage through evidence that the misrepresentation did not in fact affect the stock price, and courts should give them the opportunity to do so. The Court vacated and remanded the decision of the Fifth Circuit.

To discuss the case, we have Adam Pritchard, who is the Frances and George Skestos Professor of Law at the University of Michigan School of Law.

Click here to view this article on the source site »

Categories: SCOTUSreport

Is Stanley Fish a Generation Behind on Textualism?


by Publius
Posted July 20, 2012, 9:28 AM

At FedSoc's SCOTUSreport site, John Ohlendorf, an Olin-Searle-Smith Fellow at Northwestern University School of Law, responds to Stanley Fish's recent review of Reading Law, a new book Justice Scalia and Bryan A. Garner.  Ohlendorf writes:

Despite his qualms about [Reading Law's] central position, Fish has high praise for the book, which he calls entertaining and “wonderful.” Along the way, he also dispatches Living Constitutionalism as “a form of political gerrymandering rather than as a form of interpretation.”

In this post, I’d like to respond to Fish’s critique. In brief, Fish articulates two lines of attack: 1) Statutory meaning is not “‘in the text’ in the sense Scalia and Garner insist on,” and 2) All interpretation “begins and ends” with “the assumption or specification of an intention without which there would be no text . . . .” Both arguments draw on Fish’s influential body of scholarship dating back to the 1970s; both arguments show their age. The first argument has teeth only against an archaic version of statutory formalism that has been roundly rejected by modern textualists; the second has little relevance to the “second generation” of textualism that has emerged over the last decade. . . .

Read the full post here.

Categories: SCOTUSreport

Did Roberts Underestimate the Effect of His Decision on Medicaid?


by Publius
Posted July 12, 2012, 4:14 PM

At SCOTUSreport, Steven Teles--professor political science at Johns Hopkins and author of The Rise of the Conservative Legal Movement--points to what he believes is a largely neglected aspect of Chief Justice Roberts' decision in the ACA case:

the Medicaid part of the decision, which was probably extracted from some of the liberals as Roberts’ pound of flesh for upholding the mandate, really is a big deal in raw policy terms. At least in the short term, it really throws a monkey wrench in the basic structure of Obamacare, although I’m not quite sure that Roberts appreciated how much. Expansion of Medicaid is, at least in the short term, the most important mechanism in the law for getting to universal coverage, and it would have its greatest impact on reducing the uninsured in states with relatively stingy Medicaid eligibility (like Texas and Florida)—the same states that are now threatening not to participate. That creates a potentially very weird vacuum in those states, between the very poor (and, remember, senior citizens in nursing homes) on traditional Medicaid and those higher up the income scale who will be in the exchanges. You could solve that problem by pulling those who would have been in expanded Medicaid into the exchanges, but I’m not 100% sure that HHS will be able to get away with doing so. Furthermore, the structure of federal-state aid conditionality is at the core of how we’ve chosen to organize a big chunk of the American welfare and regulatory state. While I’m sympathetic to Michael Greve’s argument in his recent, fantastic book The Upside Down Constitution, that this structure is deeply screwed up, it is also quite deeply embedded. If Roberts is using the decision in NFIB v. Sibelius to open up a broader reassessment of federal grants, that would be a very, very big deal.


Categories: SCOTUSreport

Is the Criticism of Citizens United Manufactured Hysteria?


by Publius
Posted July 12, 2012, 7:47 AM

Professor John McGinnins writes at FedSoc's SCOTUSreport:


Critics of Citizens United have intimated that it will result in a huge increase of for-profit corporate independent expenditures. President Obama played to such fears when he claimed in his 2010 State of the Union address that the decision “opened the floodgate for special interests–including foreign corporations–to spend without limit on our elections.”

At the time, it was widely reported that the president was falsely characterizing the decision: Citizens United did not invalidate prohibitions on campaign expenditures by foreigners, be they individuals or corporations. But it is also now clear that not many for-profit corporations make independent expenditures directly on behalf a candidate. Moreover, for-profit corporations give less than 20% of so-called Super PAC money used for independent expenditures for direct support of candidates. And many, if not most, of these donating corporations appear to be shells for individual contributions.  (In my view, Congress and state legislatures should require such shell corporations to disclose the individuals behind them: Citizens United expressly permits disclosure laws). Publicly traded corporations appear to give less than 0.5% of all Super PAC funds. Thus, the amount of for-profit corporate treasury funds being spent in elections as a result of Citizens United represents a very small portion of total election expenditures. Citizens United has not released a floodgate of for-profit corporate independent expenditures. The president was in this respect no better a pundit than he was a legal analyst.

The New York Times recently reported that corporations are giving more to 501(c)(4) “social welfare” organizations, which can use a portion of their funds to run issue advertisements in elections. But this increase has nothing to do with the doctrine of Citizens United. . . .

Categories: SCOTUSreport

Was Roberts Wrong to Apply the Canon of Constitutional Avoidance to the Mandate?


by Publius
Posted July 11, 2012, 7:44 AM

At FedSoc's SCOTUSreport, Georgetown law professor Nicholas Quinn Rosenkranz argues that Chief Justice Roberts should not have applied the "canon of constitutional avoidance" to the individual mandate:

In his ACA decision, Chief Justice Roberts concludes that the individual mandate can be sustained as an exercise of the taxing power, even though he concedes that it is read “more naturally as a command to buy insurance than as a tax.”  His key move is an application of the canon of constitutional avoidance, which he explains as follows: “The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd. The canon applies when a statute is ambiguous—when it can plausibly be read to mean two different things. . . . But the individual mandate is not ambiguous in the same sense that “vehicle” is ambiguous. . . . 

Whether the individual mandate is called a “penalty” or a “tax,” it means what it means and requires what it requires.

So when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense.  This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. . . .

You can read is full post here.

Categories: SCOTUSreport

Citizens United—The Most Important Decision of the Roberts Court?


by Publius
Posted July 10, 2012, 8:59 AM

At SCOTUSreport, Northwestern University law professor John McGinns discusses what he sees as the most important decisions by the Supreme Court under Chief Justice Roberts.  His post begins:

Although it might not be widely recognized, the most important decisions of the Roberts Court to date have been Citizens United v. FEC and American Tradition Partnership v.  Bullock, the case decided in June that reaffirmed Citizens.  Their importance does not lie in what President Obama and much of the press emphasize about them.  The portion of their holdings that permits for-profit corporations to spend money directly advocating the election or defeat of candidates has had little effect on political campaigns. Instead what is crucial about the decisions is that five justices on the Court analyzed political speech at election time through the prism of ordinary First Amendment principles.  One might not think that development extraordinary, except that the dissenters in these cases and campaign finance “reformers” in general want to place election campaigns outside the ordinary protections of the First Amendment.

At stake is nothing less than how much information voters will get and thus how sound our political decisions will be in the long run. . . .

Categories: SCOTUSreport

Announcing the Re-Launch of FedSoc’s SCOTUSreport


by Publius
Posted July 03, 2012, 12:54 PM

The Federalist Society is proud to announce the re-launch of SCOTUSreport.com--a storehouse of news and analysis on the Supreme Court.  Its blog features original commentary, including:

Check it out!

Romney’s Potential High Court Picks?


by Justin Shubow
Posted April 20, 2012, 8:09 AM

Now that Mitt Romney is the presumptive Republican presidential nominee, Reuters reports that speculation as to his possible Supreme Court picks is beginning. Among the frequently mentioned frontrunners are:

Paul Clement, who served as U.S. solicitor general under President George W. Bush and is now a lawyer in private practice, is the favorite of many conservatives. Clement argued last month for the Supreme Court to strike down Obama's 2010 healthcare law, and he is defending laws that ban same-sex marriage and that target illegal immigrants.


Clement, 45, would be "at the top of any short list right now," said Curt Levey, executive director of the Committee for Justice, a group that advocates for conservative nominees.


Asked about Clement, Mary Ann Glendon, a co-chairwoman of Romney's Justice Advisory Committee, voiced "unbounded admiration" for him.


"He's the type of person who fits the mold that the governor has pledged to look for," Glendon said, adding that "it's much too soon to speculate about names."


Mentioned as often as Clement is Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.


Kavanaugh, 47, sits on a court that produced four sitting justices. He has deep roots in Washington, D.C., having worked in the Bush White House and assisted in the 1990s investigation that nearly led to President Bill Clinton's ouster.


Kavanaugh is known for elaborate opinions such as a 65-page dissent he wrote in November exploring how an 1867 tax law barred courts from considering Obama's healthcare law until 2015.


A third possibility, Judge Diane Sykes, is often mentioned as a likely Romney nominee if the next person to leave the Supreme Court is Justice Ruth Bader Ginsburg, the court's senior woman justice. Ginsburg has survived cancer twice.


Sykes, 54, was appointed to a Chicago-based U.S. appeals court in 2004, overcoming Democratic criticism of her record in abortion-related cases. Last year, she pleased advocates for gun rights when she wrote an opinion saying Chicago could not enforce a ban on firing ranges within city limits.


Supreme Court to Hear Texas Affirmative Action Case


by Justin Shubow
Posted February 21, 2012, 3:32 PM

The Supreme Court today granted cert to Fisher v. University of Texas, an affirmative action case.  The Huffington Post reports:

Affirmative action is heading back to the Supreme Court, and this time its prospects for survival are poorer than ever.

The Court announced on Tuesday that it has agreed to hear a challenge to the University of Texas' affirmative action program, which is used in sorting through applications after the automatic admission of all in-state applicants who graduated in the top 10 percent of their high school class.

The state's top 10 percent law was passed as a race-neutral way of facilitating diversity on campus after a federal appeals court in 1996 banned affirmative action in Texas' public universities. Then in 2003, the U.S. Supreme Court -- in a majority opinion written by Justice Sandra Day O'Connor for herself and the Court's four liberals -- approved of certain types of race-conscious admissions practices in higher education for the purpose of achieving a diverse student body. In response, the University of Texas reinstated affirmative action, this time to assess applicants who would not be automatically admitted under the top 10 percent law. . . .

Justice Elena Kagan has recused herself, likely because of her participation in the early stages of the case when she served as U.S. solicitor general.

The Federalist Society recently co-hosted a debate on the case at the Heritage society.  It pitted James Ho and Loren AliKhan versus the Honorable Gail Heriot and Roger Clegg.  The video of the event can be found here.


Categories: SCOTUSreport




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