Plain English / Cases Made Simple

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Four years ago, in a case called Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court reviewed a challenge to the constitutionality of the preclearance provisions of the Voting Rights Act.  As I explained in an earlier post, that portion of the Act was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures – both major changes and even for something as seemingly innocuous as moving a polling place across the street.  In that case, the Court ultimately dodged the constitutional question, handing the utility district a victory on another ground.  But at the same time, the Court fired off a cautionary shot to Congress, admonishing it that “[t]hings have changed in the South,” where most of the state and local governments that have to comply with the preclearance requirements are located, and that the burdens imposed by the preclearance requirements “must be justified by current needs.”

Chief Justice Roberts' opinion in Voting Rights Act, Section 5 (Art Lien)

Chief Justice Roberts’ opinion in Voting Rights Act, Section 5 (Art Lien)

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Frequently asked questions: Orders

By on Jun 24, 2013 at 8:48 am

We expect the Court to issue orders from the June 20 Conference today at 9:30 a.m.  (All times are Eastern.)  We will be live blogging beginning at around 9 a.m.   We have put together a list of some of the commonly asked questions about orders that we have received during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.

Question:  What are orders?

Answer:  Orders are actions that the Court took at its most recent Conference, last Thursday.  They are released to the public and the press as a list.  Two of the most common kinds of orders (and the ones in which we tend to be most interested) are orders granting or denying requests to review a case on the merits – actions known as granting or denying “cert.” (short for “certiorari”).

Question:  What is the difference between “orders” and “opinions”?

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And it has all come down to this.  Over four years ago, superlawyers Ted Olson and David Boies – who opposed each other in the Bush v. Gore presidential election case – came together to challenge California’s ban on same-sex marriage on behalf of two California couples.  In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law – are constitutional.  But then again, it might not . . . .  So let’s talk about the same-sex marriage cases and what the Court could do with them in Plain English.

Let’s start with United States v. Windsor, the challenge to the Defense of Marriage Act (DOMA), which may wind up as the less complicated of the two.  (More background on the case can be found in my earlier posts here, here, and here.)  And let’s be clear on what this case is not about:  it is not about whether there is a constitutional right to same-sex marriage.  Instead, it is about whether Congress can treat married same-sex couples differently from married opposite-sex couples in federal laws and programs like Social Security benefits, immigration, and income taxes.  Continue reading »


Conceding that it is hard to draw the constitutional line, the Supreme Court on Thursday attempted once more to spell out when the government may use its money to try to control what people are allowed to say if they take the money.   Between the lines, the opinion seems to say that those who get the money can keep getting it even if what they say does not square with the government’s program goals. They just have to pay for such contradictions with their own money.

If that is the true meaning of the decision in Agency for International Development v. Alliance for Open Society International (docket 12-10), free speech under the First Amendment has made something of a gain.

Chief Justice Roberts announces the opinion (Art Lien)

Chief Justice Roberts announces the opinion (Art Lien)

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We expect the Court to issue opinions tomorrow morning at 10 a.m.  We will be live blogging beginning at around 9 a.m.  (All times are Eastern.) We have put together a list of some of the commonly asked questions about opinion announcements that we have gotten during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.

Question: What opinions will the Court issue?

Answer: Unlike some other courts, the Court doesn’t announce in advance which cases will be decided on a particular day.  The only time we have a good sense is the very last day, when the Court issues its final rulings.

Question:  How many opinions will the Court issue?

Answer:  The Court also does not announce in advance how many opinions it expects to release on any particular day.

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Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

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(Photo by Images Money/Creative Commons)

(Photo by Images Money/Creative Commons)


Showing a strong suspicion that big drug companies with deep pockets may be using their money to shield shaky patent rights, the Supreme Court on Monday for the first time cleared the way for antitrust lawsuits to challenge payoffs between brand-name drugmakers to keep would-be competitors who make generic substitutes temporarily out of their market.

But winning such lawsuits will hardly be easy, because the Court refused to start with the premise that such payments are probably illegal.  The five-to-three decision in Federal Trade Commission v. Actavis (docket 12-416) was based far more on antitrust than patent law, and was at least a warning that settling lawsuits — at least in the drug industry — is a practice not necessarily free from risk.  (Justice Samuel A. Alito, Jr., took no part in the ruling.)

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UPDATED Tuesday pm:  Arizona officials have announced that they will now pursue the suggestion offered by the Court’s opinion on how the state might be able to gain a right to require proof of citizenship for voters.  The official statement is here.



In a ruling that might easily be misunderstood if not read very closely, the Supreme Court on Monday simultaneously strengthened Congress’s hand in expanding the ranks of eligible voters, and yet assured states that they retain the ultimate power to decide who gets to vote.  The apparent bottom line: states cannot now require voters to show proof that they are U.S. citizens, but the Court has given them a plan that could gain them that power.

The decision in the case of Arizona v. Inter Tribal Council of Arizona (docket 12-71) had major potential for sorting out the dual roles of Congress and the states in deciding eligibility to vote, and that was even more vital in the midst of a new national controversy over efforts among some states to narrow eligibility.  The end result will give both sides in that controversy encouragement, but perhaps rather confusing legal guidance.

Justice Scalia announces the opinion this morning (Art Line)

Justice Scalia announces the opinion this morning (Art Lien)

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The Supreme Court long ago ruled that an inventor who discovers a phenomenon in nature, or figures out a “law of nature,” cannot get an exclusive right to use or sell that by obtaining a patent from the federal government.  Natural phenomena are the basic tools with which every would-be inventor starts, so locking up the right to use them in a monopoly held by a specific patent owner will frustrate others who might want to look for new ways to interpret that phenomena, the Court has said.

The exclusion of natural substances from eligibility for patents was the theory on which the Court relied Thursday in its unanimous ruling that a company cannot get a patent monopoly on the use and study of human genes that it isolates in the bloodstream, and them takes them out — without changing their natural character — for research.

The case involved a Utah company’s patent for having isolated, outside the human body, two basic genes that contain natural phenomena which suggest that a woman who has them is at significantly higher risk of developing either breast cancer or ovarian cancer.   The company had claimed that the act of locating these genes in blood, and then extracting them for study, was a true invention, something that did not exist before.

The Court said the company actually did not create anything at all, but simply extracted the genetic material from its location in human blood, and setting it apart for study.

The Court, however, said that the company might be eligible to get a patent when it created a synthetic form of those genes — in other words, a laboratory imitation of them.   Such imitations, according to the ruling, do not exist in nature, and so do not run counter to the rule against patenting nature.

(The decision was announced in the case of Association for Molecular Pathology v. Myriad Genetics.)

June is traditionally a busy month at the Supreme Court, with the nine Justices issuing a flurry of opinions before they head out of town for the summer.  (Yes, it’s nice work if you can get it.)  And as a general rule, June is often when we see decisions in some of the Court’s highest-profile cases – remember the media frenzy last June when the Court finally announced its ruling in the challenge to the Affordable Care Act, also known as “Obamacare”?  This year is no exception:  on Monday, a sharply divided Court upheld a Maryland law that allows police to take DNA samples from people who are arrested for “serious” crimes, and Court watchers are still waiting on cases involving same-sex marriage and affirmative action.  But civil rights groups are also watching another case closely:  Shelby County v. Holder, in which the nine Justices hold the future of the Voting Rights Act in their hands.

Notables of the civil rights movement seated in the Supreme Court to hear challenge to Section V of the Voting Rights Act include John Lewis, Al Sharpton and Jesse Jackson. (Art Lien)

Notables of the civil rights movement seated in the Supreme Court to hear challenge to Section V of the Voting Rights Act including John Lewis, Al Sharpton and Jesse Jackson. (Art Lien)

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