Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- we would not expect orders granting certiorari today.

Plain English / Cases Made Simple

This is our archive of posts in Plain English. You may also be interested in these resources:

Supreme Court Procedure
Glossary of Legal Terms
Biographies of the Justices

Most of the time, the Supreme Court decides cases with a careful eye to what is known as precedent – that is, its earlier cases dealing with the same or similar topics.  Precedent plays a major role in important cases argued earlier this Term involving constitutional challenges to, for example, Michigan’s ban on the use of affirmative action at its public universities, the overall limits on how much an individual can contribute to candidates for federal office, and prayer at town council meetings.  But on Monday, the Court will take on a constitutional issue for which there is no real precedent because the Justices have never confronted it before: when can the president appoint senior officials and judges without first getting approval from the Senate?

Both sides in the case – National Labor Relations Board v. Noel Canning – have tried to fill the void left by a lack of precedent with arguments based on the text of the Constitution, the understanding of the Constitution’s drafters, and the past practice of other presidents.  After the oral argument, the Court will have the final say.  Going forward, its decision will significantly affect the balance of power between the president and the Senate when it comes to filling vacancies in the government.  Let’s talk about the case in Plain English. Continue reading »

On Wednesday morning, in Town of Greece v. Galloway, the Justices heard oral arguments in a lawsuit brought by two residents who argue that the town council’s practice of beginning its meetings with a prayer violates the Constitution.   (I previously previewed the oral argument in Plain English.)  A court of appeals had ruled that although prayers are permissible, these suggested that the town was endorsing Christianity.  When the hearing was over, it looked like the prayers would survive.  If that happens, though, a win for the town may have less to do with the Justices’ strong convictions that the prayers are on firm constitutional ground than with their sense that a ruling allowing the prayers to continue would create fewer challenges for the courts than the alternatives.  Let’s talk about the oral argument in Plain English.  Continue reading »

Thirty years ago, in Marsh v. Chambers, the Supreme Court held that the Nebraska legislature could begin its legislative sessions with prayers led by a chaplain who was employed by the legislature.  But the Court has never settled when legislative prayers go too far and cross the line separating church and state.  Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents.  Today, in Town of Greece v. Galloway, the Court will hear oral arguments about whether the town’s prayers are constitutional, but its decision could have a wider impact on the law governing the intersection of church and state.  Let’s talk about the case in Plain English. Continue reading »

Today’s oral argument in Bond v. United States was a spirited one, but one that sounded a lot more like a law school lecture than the daytime drama suggested by the facts of the case.  (My Plain English preview of the case is available here.)  And at the end of that lecture, and despite the government’s fervent defense of the laws at issue in the case as an essential part of the nation’s efforts to combat chemical weapons, including in the ongoing conflict in Syria, it looked like the Court was poised to put real limits on when and how Congress can rely on its power to enter into treaties to then pass laws putting those treaties into effect.

Carol Anne Bond was charged with violating federal laws prohibiting the use of chemical weapons when she tried to poison her husband’s mistress.  Her lawyer, former Solicitor General Paul Clement, began with the idea that, if the federal laws at issue really do “reach every malicious use of chemicals,” then they exceed the powers given to Congress by the Constitution.  The fact that the laws were passed to implement a treaty does not, he said, somehow enlarge Congress’s powers.

Paul Clement for petitioner (Art Lien)

Paul Clement for petitioner (Art Lien)

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One of the fundamental principles of our government is that Congress does not have unlimited power; instead, it only has the power that the Constitution gives it.  For example, as we saw during the 2012 challenge to the Affordable Care Act, Congress cannot use its power to regulate trade between the states to justify requiring everyone to buy health insurance, though it can impose a tax that has essentially the same effect; it also cannot make it a federal crime to have a gun near a school.  But what about the provision of the Constitution that gives Congress (and the Senate in particular) the power to approve a treaty with other countries?  Can Congress then use that power to pass laws to put the treaty into effect in the U.S., even if it wouldn’t otherwise have had the constitutional power to do so?   That is the question before the Court this morning in Bond v. United States.  But that weighty issue comes to the Justices in an improbable story that seems more like an episode in a soap opera.  Let’s talk about the case of Carol Anne Bond, spurned spouse, in Plain English.  Continue reading »

In late June, the Court ordered a lower court to take a tougher look at the University of Texas’s consideration of race as a factor in its admissions process, but it allowed the program to survive, at least for now.  Today the issue before the Court was different, and the measure being challenged was in a sense the opposite: the Court heard oral argument on whether an amendment to the Michigan constitution that bans (rather than encourages) the use of affirmative action at public universities violates the Constitution.   Going into the oral argument, it seemed very likely that at least the five most conservative Justices on the Court would uphold the ban.  That may ultimately be the result, but the case may also be less of a cakewalk for the state than it might have expected.  Continue reading »

As I noted earlier this week, the new Term has been described as a “season of sequels.”  The “sequel” theme may be at its zenith on Tuesday afternoon, when – in a rare afternoon argument – the Court will return to a controversial issue that was on its docket quite recently:  the use of affirmative action by public universities.  In late June, the Court issued its decision in Fisher v. University of Texas at Austin, a challenge to that university’s consideration of race in its undergraduate admissions process.  The Court sent the case back to the lower court with instructions to take a closer (and tougher) look at the policy – including whether there are any alternatives that could achieve a diverse student body without using race.  Next week, in Schuette v. Coalition to Defend Affirmative Action, the Court will confront what this blog’s Stephen Wermiel has called the “mirror image” of the Fisher case.  In Fisher, the Court was considering whether the Constitution allows a university to (voluntarily) consider race as a factor in admissions; in Schuette (pronounced shoot-ee), the issue is whether the Constitution allows a state to do the opposite:  prohibit universities from using race as a factor.  Let’s talk about the new case in Plain English. Continue reading »

This morning the Justices heard oral argument in McCutcheon v. Federal Election Commission, a challenge to the constitutionality of the two caps – also known as the “aggregate limits” – that federal law imposes on the combined campaign contributions that you can make to (1) candidates for federal office and (2) political parties.  (I previewed the oral argument in Plain English last night.)  When the argument ended, there was no clear sign of consensus on the Court:  although it seems likely that at least five of the nine Justices will strike down one of the aggregate limits, there was a chance that another would survive.  Let’s talk about the oral argument in Plain English.  Continue reading »

This morning, for the first time since June, the Justices returned to the bench.  Some Court watchers have described this new Term as a “season of sequels,” because in several cases the Justices have been invited to revisit and potentially overrule prior rulings on a number of controversial issues.

The first of those “sequels” comes tomorrow, when the Justices hear oral arguments in McCutcheon v. Federal Election Commission, in which the Court will return to the question of what restrictions the Constitution allows the government to put on the role of money in elections.  In 2010, in the controversial Citizens United decision, the Justices ruled by a vote of five to four that corporations and labor have a free speech right to spend money in elections.  Tomorrow’s case involves a different kind of restriction – one on contributions to candidates and political parties, rather than direct spending in elections – but it too may end with the Court limiting Congress’s ability to regulate money in politics.

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On Monday, July 15, the blog will begin publishing a symposium on National Labor Relations Board v. Noel Canning (docket 12-1281), one of the most important constitutional cases to go before the Supreme Court in the new Term starting in October.  It provides a test of presidential authority to appoint individuals to government positions when the Senate is not available to consider them.  This post explains, in non-legal terms, how that case arose, and discusses its implications.


From time to time in its history, the Supreme Court is drawn into a controversy that goes to the heart of the division of powers among the branches of the national government.   With its power to interpret the meaning of the Constitution, exercised since 1803, the Court is in a position to overrule the actions of the other two branches of government.  Overruling Congress happens far more often than overruling the President, but that, too, can happen.  The Court will soon be considering whether to do that again in a case of deep significance for President Obama, and for his successors in the White House.

Continue reading »

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