Editor's Note :

Editor's Note :

On Monday we expect the Court to issue orders from the June 23 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. We will begin live-blogging at 9 a.m.

[Disclosure: As of June 1, I’m a member of the faculty at the University of Texas School of Law, the parent university of which was the respondent in Fisher II. Needless to say, what follows is my personal opinion, and in no way reflects the views of my employer.]

It’s hard to view today’s ruling in the second Fisher v. University of Texas at Austin, in which the Court upheld the University of Texas’s race-conscious admissions program by a four-three vote, as anything other than a stunning surprise. For starters, in his twenty-eight years on the Supreme Court, Justice Anthony Kennedy had never previously voted to uphold a race-based affirmative action program against a constitutional challenge. Add to that the bottom line of the Supreme Court’s 2012 ruling in Fisher I – which seemed to be a not-so-thinly-veiled hint to the court of appeals that a majority of the Justices had serious qualms with the constitutionality of the UT approach, one which the Fifth Circuit politely ignored on remand in reaffirming its earlier decision. Then there was the subsequent grant of certiorari by an eight-Justice Court in Fisher II (with the recusal of Justice Elena Kagan), a move that would’ve been odd if, with Justice Antonin Scalia, the remaining eight Justices were evenly divided. And finally, there was the oral argument last December, in which Kennedy repeatedly expressed frustration “that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that Fisher [I] sought to give. And that just – we’re just arguing the same case. . . . It’s as if nothing has happened.”

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A view from outside the Court

By on Jun 23, 2016 at 10:22 am

Supreme Court 6/23/16 Decisions

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We live-blogged this morning as the Court issues opinions. The transcript is available here.

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Thursday round-up

By on Jun 23, 2016 at 6:10 am

At Fortune, Jeff John Roberts reports on Justice Elena Kagan’s use of a link shortener in her dissent in the Fourth Amendment case Utah v. Strieff; he observes that, “in the bigger picture, any controversy over the Google link is just a tiny part of a larger record-keeping problem for the Supreme Court and other important institutions.” Commentary on the decision comes from David Fontana, who focuses on Justice Sonia Sotomayor’s dissent at PrawfsBlawg.  Janell Ross of The Washington Post suggests that, although Sotomayor’s “view wasn’t embraced by the court,” “it is something that broad swaths of Americans, and especially black and Hispanic Americans, agree with.”

Criticism of Sotomayor’s dissent comes from the editorial board of The Wall Street Journal, Theodore Kupfer at National Review, and John McGinnis at Library of Law and Liberty.  At The Weekly Standard, Ethan Epstein observed that Sotomayor’s opinion “was greeted with the rapture usually reserved for John Oliver videos,” while in a post at National Review’s Bench Memos, Howard Slugh criticizes an article on the dissent, arguing that it “distorts the majority opinion beyond recognition.”  Continue reading »

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Petition of the day

By on Jun 22, 2016 at 11:10 pm

The petition of the day is:

15-1419

Issue: (1) Whether Wayne State University (WSU), a unique, autonomous institution, free from all relevant state control, who receives a minority share of its funding from the State, and who is responsible for its own debts, is a “person” under the False Claims Act (FCA); and (2) whether WSU’s Board of Governors, a creation of the State and a properly formed corporation in every respect, is a “person” under the FCA.

This post — which is an updated version of posts that we have published in earlier Terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs.  If you have a question that you don’t see answered here, please feel free to ask it during tomorrow’s live blog.

ORDERS

Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the Court took at its most recent Conference, which are reflected in a document (“the order list”) that the Court releases to the public.  The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert.,” short for “certiorari”), but the Court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits. We do not expect orders tomorrow, only opinions.

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On Monday morning, the Justices issued five decisions in argued cases. This leaves the Court with eight cases to decide between now and the end of June. The Justices will take the bench tomorrow at ten o’clock to rule on one or more of these eight cases, which are summarized below the jump.

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In its Conference of June 23, 2016, the Court will consider petitions involving issues such as whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for secular reasons; whether the term “aggrieved” in the Fair Housing Act imposes a zone-of-interests requirement more stringent than the injury-in-fact requirement of Article III; and whether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of the Sherman Act.

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Today I am happy to present the first interim Stat Pack for the October Term 2015. As we approach the last few weeks of the Term, several key trends are beginning to reveal themselves. You can view the Stat Pack in its entirety here.

Below, you can view each portion of the Stat Pack individually and review my takeaways from this version of the Stat Pack.

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Wednesday round-up

By on Jun 22, 2016 at 7:35 am

Commentary on Monday’s ruling in Encino Motorcars v. Navarro, in which the Court held that courts should not defer to a Department of Labor regulation on overtime for service advisers at car dealerships, comes from Ruben Garcia, who at Hamilton and Griffin on Rights suggests that, once the department fills the gaps left in the Fair Labor Standards by Congress, it “seems that the agency’s judgment should be given deference.”  At the Ross Runkel Report, Ross Runkel similarly observes that “all DOL has to do is explain why it is doing what it is doing. That’s not asking much.”  And at Federal Regulations Advisor, Leland Beck notes that “[w]hat is clear is that SCOTUS is unanimous on the point that courts owe no deference to a regulation that lacks sufficient reasoning.”   Continue reading »

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