June 24, 2013

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canninghere. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.

17 comments:

Bender said...

Just to be clear --

In Hollingsworth, the challengers already have the benefit of all the legal rights of marriage under California's domestic partnership law. The only issue in that case is the usage of the word "marriage."

In Windsor, the challenger fully enjoyed both the use of the word "marriage" and the rights thereto for the entirety of her relationship with her partner, until she died. The only issue in that case is money, specifically the avoidance of estate taxes by claiming a marital deduction.

In the one case, there is absolutely no real injury. And the other is about nothing more than cold hard cash.

Neither case is about "spending one's life with the person he loves," etc.

ricpic said...

If less excitement means less legislating from the bench I'm all for it.

gerry said...

If so, that will be the excitement of no excitement. Get ready.

Ready! Set! Pfffftht!

I enjoy informed intuition.

It's so much better than unrelenting blind terror.

Ann Althouse said...

"In Hollingsworth, the challengers already have the benefit of all the legal rights of marriage under California's domestic partnership law. The only issue in that case is the usage of the word "marriage.""

Right, which means the case could be done minimalistically and substantively. That's the same as what I think may happen in Fisher. The substantive result is about something narrow about the facts of the case and has little broader application.

Bob Ellison said...

9:59 - Comment From Paul
What is the argument against allowing cameras/audio recording in the court room? From Amy: Ah, such a great question and so little time to answer. The arguments are, to summarize my views, fairly unconvincing, but I don't get to vote on the issue.


Fascinating.

Ann Althouse said...

Hollingsworth also has the narrow fact that the Calif. courts found a full-scale right, and then it was pared back to domestic partnership, so there's room to say there's no legitimate interest in depriving ss couples of the word "marriage" and nothing more.

Lem the artificially intelligent said...

When I was a child I used to save the meat for last... the best for last.

Of course the Supremes don't operate under such infantile parameters. This is coincidence in its purest form.

Bob Ellison said...

Lem, according to Scotusblog, the decisions come in reverse seniority order.

Anonymous said...

When I was a child I used to save the meat for last... the best for last.

If you don't eat your Vance, you can't have any Hollingsworth! How can you have any Hollingsworth if you don't eat your Vance?

Bob Ellison said...

10:13 - Amy Howe: Chief Justice files a concurring opinion (in the judgment only) joined by Alito; Justice Scalia dissents, for himself; Justice Thomas dissents in an opinion joined in part by Justice Scalia.

TMI.

Simon said...

Fisher comes down per AMK; CA5 vacated and remanded. Per scotusblog: "The holding is because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect."

Simon said...

Fisher is 7-1, only Ginsburg dissents.

jacksonjay said...


Immensely exciting?

Calypso Facto said...

Immensely exciting?

The lonely lives of lawyers, Taranto might quip.

jacksonjay said...


Exciting is Game 6 in Miami!

Nonapod said...

Not to be a stick in the mud, but I don't find the grand proclamations of our unelected overlords particularly exciting. Depressing is more like it.

Rusty said...


"Immensely exciting morning at the Supreme Court."

Only a committed constitutional law nerd would writ that.