The following is an opinion piece by Roger Clegg, president and general counsel of the Center for Equal Opportunity, for our program on Race and the Supreme Court.

When it comes to vindicating the principle of racial equality, the Supreme Court has a lousy record.   Consider:  Dred Scott.  Plessy.  Korematsu. The kindest thing that can be said is that its record is not strikingly worse than the other two branches of the federal government, and better than a lot of state governments.

As a critic of politically correct as well as politically incorrect discrimination, I would add some other names to the list: Weber.  Fullilove.  Grutter. Oh, and Griggs.

Read the rest of this entry »

Commentators continue to weigh in on last Thursday’s decision in Citizens United v. FEC.  In Slate, Barry Friedman and Dahlia Lithwick characterize the timing of the decision as “terrible” in light of the nation’s economic woes, and they describe the outcome as somewhat unexpected given the conservative-leaning Court’s recent decisions to uphold the Voting Rights Act (in NAMUDNO) and disparate-impact tests (in Ricci).  Kenneth Jost also criticizes the Court’s decision as overly broad, opining that such expansive decisions should be reserved for instances in which the Court needs to protected endangered constitutional rights.  And at The New York Times, Adam Liptak describes Justice Stevens’s “full-throated” and disappointed dissent, noting that his recent opinions have been united by the theme that the Court has “lost touch with fundamental notions of fair play.”

Read the rest of this entry »

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on January 15.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Read the rest of this entry »

To help illustrate the terms and concepts you will often encounter in discussions of the Supreme Court, we have written an imaginary Supreme Court case.  We will be creating permalinks to this post on the blog as well as on SCOTUSwiki.

Pretend that the plaintiff (Mr. Lyon) is suing the defendant (his employer, the state-run Animal House Zoo).  Mr. Lyon, who is white, scored higher than Mr. Behr, who is black, on an exam that qualifies employees for promotions.  When the exam was scored, however, the zoo threw out the results because it worried that promoting a white candidate over a black candidate would leave it vulnerable to allegations that it had violated Title VII of the 1964 Civil Rights Act, which prohibits racial discrimination in employment.  Mr. Lyon sued the Animal House Zoo, arguing that by throwing out the results of the exam, the zoo violated under his rights under Title VII. (The Supreme Court addressed a case with similar facts last year when it decided Ricci v. DeStefano.)

Here, we’ll look at the life of our hypothetical case, Lyon v. Animal House Zoo, focusing on proceedings in the Supreme Court.

Read the rest of this entry »

Following the Supreme Court’s request for the views of the executive branch in U.S. Chamber of Commerce v. Candelaria (09-115) – a case involving an Arizona statute that imposes penalties on employers for hiring illegal aliens – a New York Times editorial urges the Solicitor General to recommend a cert. grant on the ground that state laws like the one at issue encroach on federal authority to set immigration policy and should therefore be overturned.

A Washington Post editorial encourages the Court to strike down as unconstitutionally vague the honest services fraud statute challenged in two cases before the Court on Tuesday, Black and Weyhrauch.  An opinion piece at the Huffington Post, at least, sees the final days of the statute as numbered based on its reception by the justices during oral argument.  Briefly, the New York Times reports that Chicago is one of the cities most likely to be affected by a ruling overturning the statute.  The case even gets brief mention in the London Times.

Read the rest of this entry »

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference today.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Read the rest of this entry »

The Court heard argument yesterday in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., a class action arbitration dispute previewed by Vivian Wang on Tuesday. Courthouse News Service provides a recap of the argument.

Events from earlier in the week continue to garner attention.  Concurring Opinions has a post from Adam Steinman on Tuesday’s opinion in Mohawk Industries v. Carpenter, an attorney-client privilege dispute.  He raises the question whether “Justice Thomas’s opinion contravenes the Supreme Court’s ‘tradition’ that a new Justice’s first opinion be a unanimous one.” Ashby Jones at the WSJ Law Blog follows up on Tuesday’s argument in the honest services fraud cases, Weyhrauch v. United States and Black v. United States, predicting that if the fraud statute is struck down in full, “[e]xpect defendants convicted under the law to rush the courthouse door.”

Read the rest of this entry »

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ next private conference on Friday, December 4.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Read the rest of this entry »

The Miami Herald previews Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a case to be argued on Wednesday that raises the question whether the Florida Supreme Court violated the rights of property owners by upholding a state project that affects private beachfront property.  David Savage at the Chicago Tribune and the local Destin Log also cover the story.

Read the rest of this entry »

During a slow week at the Court, the amicus briefs filed Monday in the gun rights case McDonald v. Chicago continue to be the biggest news.  At Balkinization, David Gans describes the “overwhelming case” made by the Constitutional Accountability Center in its amicus brief (of which he is a co-author) for the Court to rejuvenate the Privileges or Immunities Clause; at the same time, Gans aims to quell concerns that such a move would endanger the constitutional rights of non-citizens.  Douglas Berman of Sentencing Law and Policy sifts through the briefs for arguments about criminal justice implications. And at The Volokh Conspiracy, Orin Kerr segues from originalist arguments in the briefs to a discussion of originalism and the Sixth Amendment right to counsel.

The Jurist notes the filing of other amicus briefs yesterday in the terrorism support case Holder v. Humanitarian Law Project.

Read the rest of this entry »

In the Wall Street Journal, Anne Tergesen discusses both the recent rise in age-discrimination claims and the Supreme Court’s recent decision in Gross v. FBL Financial Services Inc. (2009), which requires plaintiffs alleging age discrimination to establish that their age was the sole cause of the employer’s actions.  However, last month Congress introduced new legislation that would override the Supreme Court decision by requiring plaintiffs to prove only that age was “one factor behind an employment decision.”

At the WSJ Law Blog, Ashby Jones has a brief profile of Michael Carvin and Noel J. Francisco, who represent the petitioners in Free Enterprise Fund v. PCAOB (oral argument scheduled for Dec. 7), the challenge to the constitutionality of part of the Sarbanes-Oxley Act.  BusinessWeek also profiles Carvin and Francisco.

Read the rest of this entry »

Roll Call (subscription only) has an editorial by Simon Lazarus in which he argues that Congress is pushing back against recent Court decisions that encroach on Congress’s domain.  Lazarus cites four examples of legislation Congress introduced to reverse the Court’s decisions and a fiery reproach of the Court’s conservatives from Senator John McCain.

On the heels of yesterday’s news that the victorious firefighters in Ricci v. DeStefano are suing in federal district court for promotions based on the test upheld by the Court in June, Connecticut Employment Law Blog reports that black firefighters are trying to intervene in the case.  Concurring Opinions provides an extensive explanation of both the disparate impact arguments at play in the new firefighter case, Briscoe v. City of New Haven, and how those arguments differ from those made in Ricci.

Read the rest of this entry »

The Court’s decision not to review a challenge by a Native American group to the Washington Redskins mascot leads Monday’s coverage. The Wall Street Journal, USA Today, NPR, and the hometown Washington Post all report on the Court’s denial of cert. in Harjo v. Pro-Football Inc.

Read the rest of this entry »

The discussion of Monday’s arguments in Graham v. Florida and Sullivan v. Florida has continued through the end of the week.  At Concurring Opinions, Alex Kreit comments on the arguments, highlighting in particular Chief Justice Roberts’s interest in the role that a juvenile offender’s age could play in Eighth Amendment proportionality review.  Kreit speculates that the Chief Justice’s proposal “might provide an avenue for a majority of the Court to come together” on the issue of juvenile life without parole, but cautions that the Justices could still diverge even after agreeing on the basic premise of proportionality.  US News & World Report continues its coverage of Graham and Sullivan as well.  Gerry Shih, writing for the Bay Area blog of the New York Times, explores the cases’ potential implications for a new San Francisco ordinance banning officials from reporting undocumented juvenile offenders to federal immigration authorities.

Read the rest of this entry »

The ABA Journal has a new article on sentences of life without parole for juvenile defendants, an issue raised by two cases – Graham v. Florida and Sullivan v. Florida – coming before the Court on November 9.  Graham and Sullivan argue that the imposition of a life sentence on a minor violates the Eighth Amendment, in light of the Court’s ruling in Roper v. Simmons in 2005 that the execution of juveniles is cruel and unusual.

Read the rest of this entry »