Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the April 18 Conference. On both Tuesday and Wednesday we expect one or more decisions in argued cases; we will be live blogging both days beginning at 9:45 a.m.

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

Analysis

Amid signs that the ruling was a very easy one to reach, the Supreme Court on Monday allowed the state of Michigan to deny a man accused of murder a legal defense that he previously had but then lost the right to use at a second trial.  Allowing the withdrawal of a mental defect defense after the fact, the Court ruled unanimously, did not violate the man’s constitutional rights to fair treatment.   It took the Court less than four weeks to prepare that ruling.

Justice Ruth Bader Ginsburg wrote for the Court in Metrish v. Lancaster (docket 12-547), a case that had been argued on the final hearing day of the Term, on April 24.   The decision, while interpreting generously the power of a state supreme court to cast aside a string of lower state court rulings allowing a legal defense, did not appear to make much new law on retroactivity doctrine. Continue reading »

Analysis

The Obama administration is making a sustained effort to keep the youngest girls who are sexually active from having easy access to the pregnancy-preventing drug known as “Plan B.”    Taking another step toward what may be an ultimate test in the Supreme Court, the administration will ask a federal judge in New York at a hearing Tuesday to put on hold his decision to make Plan B available over the counter — without a prescription –to women of all ages.

Such access, the federal lawyers will argue, should be open only to those who are fifteen years old or older — if they can prove their age.  That will run counter to the ruling earlier this month by Senior U.S. District Judge Edward K. Korman of Brooklyn, that the government by Wednesday must lift all restrictions on retail sales of at least one of two current versions of Plan B.

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Analysis

Virginia went to the Supreme Court with one argument, and only one, for its policy of limiting access to state public records to people who live in Virginia.  That did not seem to work well at the argument in February, but that is not the test that counts.  The Court decided the case Monday, and Virginia won unanimously – primarily on its chosen argument.

The Court, in a decision written by Justice Samuel A. Alito, Jr., upheld the power of a state to limit records access to state residents, on the theory that this gives those individuals some help in monitoring the performance of state government agencies.  The case was McBurney v. Young (docket 12-17).

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Since the Supreme Court began this Term in October 2012, the Justices have heard oral arguments in several potentially historic cases, involving front-page issues such as affirmative action, same-sex marriage, and voting rights.  But today the Justices heard a little over an hour of arguments on a very different but still consequential question:  whether human genes can be patented.  One former Solicitor General – no stranger himself to high-profile cases – has called Association for Molecular Pathology v. Myriad Genetics the most interesting case in which he has ever been involved.  And it quickly became clear that the Justices – although obviously not scientists – also found the case fascinating.  We won’t know more than that until the Court issues its decision, probably in late June, but it seems likely that at least five Justices are poised to agree with the challengers that at least some of the human genes at issue in the case cannot be patented.

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When the Supreme Court granted review in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act, last December, it asked the United States, Edith Windsor, and the Republican House leaders defending the law to weigh in on a second issue:  whether the Court could hear the challenge at all.  It even appointed a “friend of the court,” Harvard law professor Vicki Jackson, to argue that it cannot.

Under any circumstances, the Court’s request for briefing on this question would not be something to take lightly.  But after yesterday’s argument in the Proposition 8 case, when it became apparent that there might well be five votes to hold that the sponsors of the California initiative lacked a legal right to defend the initiative in court, all eyes focused today even more closely on the first fifty minutes of oral argument, which the Court had set aside to consider the question of its authority to hear the case.  During the fifty-plus minutes of oral argument, several Justices did indeed express doubts about at least one of the propositions before them:  whether the Court lacked authority to hear the case because the United States – which had asked the Court to review the lower court’s decision striking down DOMA – agreed with the lower court that DOMA is unconstitutional; and whether the Bipartisan Legal Advisory Group, representing the House Republican leaders, did not have the legal right (known as “standing”) to be in the case.  But unlike yesterday, it did not look like there might be five votes on either proposition to keep the Court from moving on to the merits of the DOMA challenge. Continue reading »

After more than an hour of oral arguments this morning in Hollingsworth v. Perry, the challenge to the constitutionality of California’s ban on same-sex marriage, it came down to this:  attorney Charles Cooper, representing the proponents of that ban, Proposition 8, returned to the lectern for his ten minutes of rebuttal time.  He immediately confronted a question from Justice Anthony Kennedy, whom many regard as the critical vote in this case.  Kennedy told him bluntly to “address why you think we should take and decide this case.”  And with that, the Justice may have confirmed that the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all – a prospect that would be (to say the least) anticlimactic but seemed to be a real possibility by the end of the morning.

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At ten o’clock tomorrow morning, the Justices will hear one hour of oral arguments on the constitutionality of California’s Proposition 8, which amended that state’s constitution to prohibit same-sex marriages.  The Court will then return on Wednesday morning to hear nearly two hours of arguments on the federal Defense of Marriage Act (DOMA), which defines marriage for federal laws and programs – including things like income taxes, estate taxes, and Social Security survivors’ benefits – as a union between a man and a woman only.

Under any circumstances, the same-sex marriage cases would shine a spotlight squarely on the Court, but that spotlight will be even brighter given the recent coverage of the dramatic growth in public support for same-sex marriage, reflected not only in recent polls but also in statements by Republican Senator Rob Portman – who was on Mitt Romney’s short list for potential vice-presidential candidates – and former President Bill Clinton, who signed DOMA into law in 1996.  Let’s start with the Proposition 8 case – which currently goes by the name of Hollingsworth v. Perry – and talk about the issues in the case in Plain English.

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On Wednesday morning, the Court spent seventy-six minutes – well more than the one hour originally allotted – deliberating the constitutionality of Section 5 of the Voting Rights Act of 1965, which requires states and local governments with a history of discrimination to get permission from the federal government before making any changes, no matter how small, to their voting procedures.  (I previewed the issues in the case last week.)  By the time the Justices left the bench that day, it seemed almost certain that five of them would vote to put a halt to Section 5 as it currently operates.

First up on Wednesday morning was lawyer Bert Rein, representing Shelby County in its challenge to the statute.  He began by reminding the Court of its 2009 decision in Northwest Austin Municipal Utilities District No. 1 v. Holder, in which it acknowledged that “the South had changed” and “questioned whether current remedial needs justified” the costs – both financial and to the jurisdictions’ autonomy – of the preclearance requirement.  But Justice Sonia Sotomayor quickly jumped in, observing that even if the South as a whole has changed, Shelby County itself has not.  Because Shelby County’s track record of discrimination at the polls remains poor, she suggested, it “may be the wrong party bringing this” case.  Continue reading »

Today is the deadline to file amicus, or “friend of the court,” briefs in Hollingsworth v. Perry, which is scheduled for oral argument on March 26.  In that case, the Court will consider a challenge to the constitutionality of California’s Proposition 8, which amended that state’s constitution to limit “marriage” to unions between a man and a woman.  (I discussed the issues in Hollingsworth in Plain English late last year.)  At the Supreme Court and in other courts, amicus briefs are filed by individuals, entities, or groups that are not directly involved in a particular case, but nonetheless believe that they have an interest in it and want to make sure that the Court considers their point of view.

Because Hollingsworth is a case about the constitutionality of a state law, so far the United States hasn’t gotten involved in it.  But in a parallel case at the Court, the federal government is refusing to defend the constitutionality of a federal law which refuses to recognize same-sex marriages for purposes of things like federal taxes, Social Security benefits, and immigration; that case, United States v. Windsor, will be argued on March 27, the day after Hollingsworth.  (This is not a coincidence.)  And with the President’s remarks in his inaugural address contending that the country’s “journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” the question for many Court watchers shifted from whether the federal government would file an amicus brief supporting the challengers to Proposition 8 to what such a brief might say.  Continue reading »

Analysis

Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court, the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.

The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward.  That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”

The ruling marked the first time that the Court had encountered a five-year-old law in which Congress, reacting to government arguments that it needed added surveillance powers to pursue the “war on terrorism,” broadly expanded federal agencies’ authority to monitor telephone, e-mail, and other communications between the U.S. and other countries, using high-volume computer-driven techniques.

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