Yesterday, the nine Justices of the Supreme Court convened in a packed courtroom to hear oral arguments in two high-profile cases.  But the real drama came before the oral arguments even started, when Chief Justice John Roberts announced that Justice Anthony Kennedy would deliver the Court’s decision in Schuette v. Coalition to Defend Affirmative Action, the challenge to an amendment to the Michigan constitution that bans the use of affirmative action by public universities there.  (My earlier Plain English coverage of the case is available here.)

Justice Kennedy began by explaining what “this case is not about.”  It is not about whether state universities can voluntarily consider race in their admissions process, nor is it about whether it’s a good idea for them to do so.  Instead, Kennedy emphasized, the question before the Court is whether voters can choose to prohibit state universities from considering race.  And the answer to that question, we learned yesterday, is yes.

Justice Sotomayor dissents in Schuette. (Art Lien)

Justice Sotomayor dissents in Schuette. (Art Lien)

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Wednesday round-up

By on Apr 23, 2014 at 6:10 am

Yesterday was a big day at the Court, with two opinions and two arguments in high-profile cases.  In Schuette v. Coalition to Defend Affirmative Action, the Court upheld Michigan’s ban on the use of affirmative action by public universities there.  Kali rounded up early coverage of, and commentary on, that decision for this blog.  Other coverage comes from Nina Totenberg of NPR, Mark Walsh at Education Week’s School Law blog, Jaclyn Belczyk of JURIST, and Howard Mintz of the San Jose Mercury News.  Commentary comes from Mike Sacks for The Daily Beast, Ilya Shapiro at Cato at Liberty, Daniel Fisher at Forbes, Michael Dorf at Verdict, Ruthann Robson at Constitutional Law Prof Blog, and Marci Hamilton at Hamilton and Griffin on Rights.  In Navarette v. California, the Court upheld a traffic stop that was based on an anonymous tip and resulted in arrest.  Lyle Denniston covered the decision for this blog, with other coverage coming from Katie Barlow and Nina Totenberg at NPR and from Amy Mathieu at JURIST; commentary comes from Tim Lynch at Cato at Liberty. Continue reading »

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Petition of the day

By on Apr 22, 2014 at 10:17 pm

The petition of the day is:

Amgen Inc. v. Harris
13-888

Issue: (1) Whether the Ninth Circuit erred in holding that respondents, in seeking to prove their claims under the Employee Retirement Income Security Act (ERISA), could invoke the presumption of class-wide reliance approved by this Court for securities claims in Basic Inc. v. Levinson; (2) whether the Ninth Circuit erred in holding that a fiduciary of a company’s employee-retirement plan must act — with respect to publicly-traded securities — on non-public information about the company in order to avoid liability under ERISA; and (3) whether the Ninth Circuit erred in holding that the “presumption of prudence,” which protects ERISA fiduciaries from liability in certain circumstances, applies only if the relevant retirement-plan language requires or encourages a fiduciary to invest in the employer’s own stock.

Analysis

Starting with one unproved claim from an unknown source, letting it lead to a supposition, and then allowing it to justify taking action, the Supreme Court in a closely divided ruling Tuesday gave police broad new authority to turn anonymous tips into traffic stops, and then, often, into arrests.  Dividing five to four, the Court rejected the argument that police must find specific proof of what an anonymous tipster reports before they may stop a motorist on the highway. Continue reading »

This morning, a divided Court upheld an amendment to the Michigan constitution that prohibits the use of affirmative action by public universities in admissions.  Justice Kennedy announced the judgment of the Court in an opinion that was joined by the Chief Justice and Justice Alito.  Justice Scalia filed an opinion, concurring in the judgment only, that was joined by Justice Thomas, while Justice Breyer filed his own opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion (joined by Justice Ginsburg) and summarized her dissent from the bench.

Coverage of the decision comes from this blog, Bloomberg, The New York Times, Detroit Free Press, ABC, CNN, NBC, CBS, the Associated Press (via Yahoo! News), Legal Times, USA Today, The Washington Post, The Wall Street Journal, Reuters, the Los Angeles Times,  and Politico.

In the blogosphere, additional coverage and commentary come from the Constitution Daily, NPR’s the two-way, National Review Online’s The Corner, ThinkProgress, and the Election Law Blog.

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Today the Court heard oral argument in Susan B. Anthony List v. Driehaus and American Broadcasting Companies v. Aereo.  Writing for this blog, Mark Walsh provides an “’view’ from the Court” for this big day.  Early coverage in the first case, a First Amendment challenge to an Ohio law that criminalizes false statements in political campaigns, comes from Jaclyn Belczyk of Jurist, Paige Winfield Cunningham of Politico, Joan Biskupic of Reuters, Sam Hananel of the Associated Press, and Deirdre Shesgreen of USA Today.  Rick Hasen of Election Law Blog and Eugene Volokh of The Volokh Conspiracy provide early commentary. This blog’s Lyle Denniston covers the argument in Aereo, which involves copyright issues for paid Internet streaming of free TV.  Other coverage comes from Greg Stohr and Alex Barinka of Bloomberg News, Lawrence Hurley of Reuters, David G. Savage of the Los Angeles Times, Adam Liptak of The New York Times, Richard Wolf of USA Today, Brent Kendall of The Wall Street Journal, Cecilia Kang of The Washington Post, and Julian Hattem of The Hill.  Early commentary comes from Megan McArdle of Bloomberg View, Daniel Fisher of Forbes, and J.J. Colao also of Forbes. Lastly, video coverage of the case comes from Reuters with Amy Howe of this blog and BTIG’s Rich Greenfield.

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Analysis

It has been all of thirty years since George Orwell’s “1984,” but imagery from that novel can still be scary, indeed.  The image of a “Ministry of Truth” was floated in the Supreme Court’s chamber on Tuesday, and it drew the Justices away from the constitutional issue actually before them.

When the Justices agreed to hear the case of Susan B. Anthony List v. Driehaus, they stuck to the question: when can an individual go into federal court with a claim that a law which regulates speech violates the First Amendment?  They were not, it seemed, going to review whether the law at issue did violate that amendment.  One would not have known that after Tuesday’s argument.

Michael A. Carvin for petitioners (Art Lien)

Michael A. Carvin for petitioners (Art Lien)

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It’s a blessing and a curse.  One advantage of retaining experienced counsel for a Supreme Court argument is the likelihood that the Justices well might listen more carefully before dismissing what counsel has to say.  But Monday’s argument in POM Wonderful v. Coca-Cola showed the downside:  the Justices are more likely to speak their minds frankly.  And you know it isn’t going well for your client when one of the Justices, speaking frankly, repeatedly complains that your client is “cheating” its customers.

Kathleen M. Sullivan for respondent (Art Lien)

Kathleen M. Sullivan for respondent (Art Lien)

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Analysis

In the digital age, perhaps only someone as old as Justice Stephen G. Breyer (or older) would fret about what might happen to a store that sells “phonograph records.”  It is doubtful, in the extreme, whether there are any of those anymore, but no matter:  Breyer and other Justices searched on Tuesday for ways to demonstrate that they want to be careful about what they do about today’s modes of entertainment.

With a new method of watching TV via an Internet connection before the Court for analysis, the Court moved back and forth between killing that novelty by forcing it to pay sizable fees to download copyrighted TV programs, or giving it a fighting legal chance to survive as a cheaper alternative to cable.

Paul Clement for petitioners (Art Lien)

Paul Clement for petitioners (Art Lien)

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It’s the second-to-last week of oral arguments of the Term, and some of the last big cases are being argued. The courtroom is packed and filled with anticipation, not so much for the first case to be argued today but the second.

The first case is Susan B. Anthony List v. Driehaus, in which the underlying issue is Ohio’s statute prohibiting false political speech, though before the Court is a drier question of who may challenge such a law and when. This is a pretty interesting case in and of itself, especially if one reads the amicus brief of the Cato Institute and the humorist P.J. O’Rourke.

Thurgood Marshall's son and widow seated in courtroom as opinion in Schuette is announced. (Art Lien)

Thurgood Marshall’s son and widow seated in courtroom as opinion in Schuette is announced. (Art Lien)

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