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Tuesday round-up

This afternoon at one o’clock the Court will hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, the challenge to an amendment to the Michigan constitution that prohibits public universities in that state from using affirmative action.  Nina Totenberg previews the case for NPR and suggests that “[t]he clear odds are that the justices will sustain it.”  Other previews come from Jess Bravin and Douglas Belkin in The Wall Street Journal and Vinay Harpalani at ISCOTUSnow, while in the San Jose Mercury News Howard Mintz discusses what the case might mean for California’s Proposition 209, that state’s seventeen-year-old ban on affirmative action.  Ken Jost also discusses the case at his eponymous Jost on Justice blog, observing that “[s]upporters of race-based admissions policies fear — and their opponents hope — that a Supreme Court ruling to reinstate the Michigan measure will encourage other states to follow suit in prohibiting racial preferences in university admissions. That could be a decisive turning point in a war that traditional civil rights groups already seem to be losing.” 

Commentary on Schuette comes from Richard Kahlenberg, who in an op-ed for The Wall Street Journal argues that “[a] ruling in Schuette that promotes race-neutral strategies to boost minority admissions would reinforce the message the court tried to deliver last term in Fisher v. University of Texas but has largely fallen on deaf ears.”  And at Angry Bear, Beverly Mann explains why she “expect[s] that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.”

Debate on last week’s oral arguments in McCutcheon v. FEC, in which the Court is considering the constitutionality of aggregate caps on campaign contributions, continues, particularly with regard to the role that originalism can and should play in the Court’s decision.  In The Atlantic, Lawrence Lessig contends that the federal government “should have used originalism to sway originalist Justices,” while in the New Republic, Jeffrey Rosen argues that Justice “Thomas’s definition of corruption – and the one embraced by the Court in Citizens United — is far narrower than the one the Framers of the Constitution endorsed.”  Rick Hasen responds to these arguments at his Election Law Blog; at the Constitutional Accountability Center’s Text and History Blog, David H. Gans responds to Hasen, criticizing what he characterizes as Hasen’s “faulty originalism.”  In another post at the Text and History Blog, Gans discusses the case and the oral arguments more generally.  He urges the Court to “uphold the federal aggregate contribution limit and reaffirm the Constitution’s promise of a representative democracy, not ‘for the rich more than the poor,’ but one ‘dependent on the people alone.’”

Other coverage of, and commentary on, the Court focuses on the extent to which the Roberts Court is an “activist” Court.  In The New York Times, Adam Liptak suggests that, “[i] f judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.”  Rick Hasen responds to Liptak’s analysis at his Election Law Blog.


  • Jess Bravin of The Wall Street Journal interviewed Justice Anthony Kennedy recently.  Kennedy discussed the inner workings of the Court (here) and legal blogging (here).
  • At the Brennan Center for Justice, Andrew Cohen responds to an editorial in The Wall Street Journal that criticizes Attorney General Eric Holder and cites the Court’s decision in Crawford v. Marion County Election Board, in which the Court – in an opinion authored by now-retired Justice John Paul Stevens – upheld Indiana’s voter ID law, in defense of North Carolina’s new voter ID law.  Cohen emphasizes “that Justice Stevens has been a fierce and public critic of the Court’s decision” in Shelby County v. Holder, in which the Court struck down the provision of the Voting Rights Act used to determine which state and local governments must comply with the Act’s preapproval requirement.
  • At Crime and Consequences, Kent Scheidegger looks at the week ahead at the Court.
  • The editorial board of The Washington Times weighs in on Arab Bank v. Linde, in which the bank has asked the Court to intervene in an international discovery dispute.  The board concludes that, “it seems to us that if Americans wouldn’t like it if a foreign court ordered an American bank to turn over records in violation of U.S. law, the courts here ought to think twice about the implications of the lawsuit.”
  • Michael Kirkland of UPI discusses Justice Scalia’s recent remarks in an interview with New York magazine, in which the Justice – among other things – explained that he believes in the devil.
  • George Mason’s Law and Economic Center previewed the October Term 2013 (video).
  • At More Than Twenty Cents, Andrew Suszek uses the television series Game of Thrones to predict how the Justices will vote on same-sex marriage when the issue returns to the Court.

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Oct. 15, 2013, 8:32 AM),