A closely divided Court today denied North Carolina’s request to allow the state to enforce three provisions of its controversial 2013 election law when voters go to the polls for this fall’s general elections. The state needed five of the eight Justices to agree to halt a lower court’s ruling that blocked the law, but it came up one short – illustrating the impact of the death of Justice Antonin Scalia, who likely would have joined the Court’s other conservative Justices in voting for the state.

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Sherrilyn A. Ifill is the president and director-counsel of the NAACP Legal Defense and Educational Fund, which filed an amicus brief in support of respondents in Fisher v. University of Texas at Austin.

How will the confirmation of a ninth Justice affect the future of diversity in higher education? After years of going back and forth to the Supreme Court over litigation in Fisher v. University of Texas at Austin and its predecessors – and decades of debating the meaning and merits of affirmative action on campuses across the nation – it might seem as if sweeping developments lie just over the horizon if and when the Court’s composition changes.

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Roger Clegg is president and general counsel of the Center for Equal Opportunity.

I’ve been asked to discuss what will happen in the area of racial preferences – a.k.a. “affirmative action” – if Justice Antonin Scalia’s successor is a conservative.

Well, since Justice Scalia was a conservative, then what will happen is basically what has been happening. The new Justice will line up with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who are pretty much categorically opposed to such discrimination, and will be in opposition to Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who can be counted on to defend politically correct racial preferences more or less categorically. And so it will continue to be a Kennedy Court.

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Wednesday round-up

By on Aug 31, 2016 at 10:26 am

On Monday Senator Chuck Grassley suggested that he might be willing to consider President Barack Obama’s nominee, Chief Judge Merrick Garland, if enough senators push for a hearing after the November election. Coverage comes from Sam Levine of The Huffington Post and Nolan McCaskill of Politico, with commentary from Rick Hasen at his Election Law Blog,.

Jess Bravin of The Wall Street Journal reports that the Justice Department has told the Court that it made “several significant errors” – understating the time spent in no-bail detention by certain undocumented immigrants with criminal records – in a 2003 immigration case, Demore v. Kim, in which the federal government ultimately prevailed. Commentary comes from Kevin Johnson at ImmigrationProf Blog.


  • In its latest newsletter, the Shakespeare Oxford Fellowship reports that the late Justice Antonin Scalia and several other Justices were “Oxfordians” – that is, they believed that Edward de Vere, the seventeenth Earl of Oxford, was the “true author” of the works historically attributed to Shakespeare.
  • For the faculty blog at UC Hastings College of the Law, Rory Little notes that the first week of arguments in the October sitting – and seven of eight cases in total – involve criminal law, a “somewhat unprecedented calendaring wrinkle” Little attributes to “hesitancy in certiorari consideration last Spring by an evenly-divided eight-Justice Court.”
  • The faculty blog at Loyola Law School, Los Angeles, introduces Michael Guttentag’s latest law review article, which focuses on “the first Supreme Court insider trading case in almost twenty years.”
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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.


  • 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:


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.

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