Plain English / Cases Made Simple

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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.

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The Supreme Court’s Term recently ended with major rulings on affirmative action, voting rights, and gay rights. Those cases received lots of media coverage. But beyond the splashy headlines, there are some important things the average observer doesn’t know about these landmark decisions.

Affirmative action

The affirmative action ruling addressed whether and when the Constitution permits public universities to use race as a factor in making admissions. Some more quick legal background: the Constitution’s Fourteenth Amendment says that the states (including state universities) must provide individuals equal protection of the laws; the same standards governing affirmative action probably apply to private, non-governmental universities too because of federal civil rights laws.

Most people expected the case – which involved the University of Texas – to strictly limit affirmative action in a five-to-four ruling with the conservatives outvoting the more liberal Justices. That made sense, because in the ten years since the Court last ruled that universities could account for race in admissions, it has moved significantly to the right. Justice Sandra Day O’Connor, who had been regarded as the “swing vote” on the Court, retired and was replaced by the more conservative Samuel Alito. On other ideological questions, the new conservative majority has been pretty aggressive about limiting or overruling important precedent with which it disagreed.

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New Texas voting disputes

By on Jul 3, 2013 at 7:05 pm

For nearly forty years, the state of Texas has had to ask official permission in Washington before it could put into effect any change in the way its citizens vote.  A week ago, state officials — relying on the Supreme Court’s new ruling on federal voting rights law — said they would no longer have to do that.  Now, however, efforts have begun in two federal courts, 1600 miles apart, to keep that obligation intact.

Those efforts — in Washington, D.C., and San Antonio — are quick sequels to the Court’s decision last week in Shelby County v. Holder (docket 12-96), striking down one key section of the Voting Rights Act of 1965, but leaving other parts of the law on the books and presumably functioning.   One of those other parts, the 1965 law’s Section 3, could provide a method for keeping in force Washington’s legal supervision of Texas voting laws and procedures under another, still standing provision, Section 5.

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In some ways, it was déjà vu all over again.  Just like last year, when it upheld the individual mandate of the Affordable Care Act, the Court saved the biggest cases of the Term – this time, challenges to California’s ban on same-sex marriage and the federal Defense of Marriage Act – for last.  Just like last year, there were long lines for seats in the courtroom; this time, they formed more than eighteen hours before the Justices would take the bench.  And just like last year, there was pandemonium outside (although, unlike last year, there were no belly dancers to be found).

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The federal Defense of Marriage Act defines “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

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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