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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, February 21, 2012

Supreme Court Watch

Rachel Maddow had a good segment last night on the Republican presidential candidates' billionaires, particularly Mitt Romney's (well one of them) who did things like out gay journalists in efforts to stop criticism and full disclosure of his activities promoting certain viewpoints.  I'm sure, though his blog seems selective on the issues (where are all the posts on commandeering physicians and patients to give ultrasounds etc.?), that Eugene Volokh types would find this sort of thing ill advised.

All the same, it does provide evidence of the power of deep pockets and helps point to the motivation for campaign finance laws.  RM notes how things are going after Citizens United, but we aren't talking corporations here, but powerful individuals.  Since there is so much focus, including from her, about the whole "corporations are people my friend" (didn't McCain have such an affectation?), this would have been a good chance to remind (like Justice Ginsburg did in supporting taking the Montana Supreme Court case for review) that it goes beyond that.

The problem is the "fact" that this sort of spending is not "corrupting," no matter who does it. Well, at least outside of judicial elections, non-citizens, government employees in some cases and perhaps some other exception Kennedy and at least four justices will find. Maddow should think about having Rick Hasen on to talk about this issue, since I think people are not fully aware of the fact, especially since so much focus has been put on the corporations angle.  She and others can also remind people that eight justices upheld disclaimer and disclosure limits, showing the value of DISCLOSE Act type legislation. 

Meanwhile, the Supreme Court today accepted for review a University of  Texas affirmative action case, Kagan recused.  The university had a "top 10%" policy of accepting the top tenth of high school graduates, which  promoted "underrepresented minorities" without specifically using race as a factor, though that clearly was the intention.  After all, why else accept the top tenth of very different academically successful schools? This sort of approach just might satisfy Justice Kennedy, who left open the possibility of some concern for racial balancing, but not in a way that directly affected a student. The plan had some success and then the university added another race conscious policy, here argued to be unnecessary.  Will AK again fail to find a policy he can uphold? Will Alito help water down another O'Connor keynote opinion?*

To round things out, the USSC came back from their hiatus (putting aside the previous orders, including the one alluded to above on Montana) to split time in the health care orals, hand down some orders and some mostly uncontroversial opinions. One of mild interest involves a Kagan/Sotomayor split, Sotomayor joining the other liberals in partial dissent involving applying defining "in custody" pursuant to Miranda to the prison context.  Another such split the other way involved another of a handful of "per curiams" in recent years that appear to be fairly trivial in nature, a sort of fact correction approach that the USSC is not usually involved in, this one from Alito's old haunting grounds. 

And, the Prop 8 defenders reportedly are going -- somewhat surprisingly -- to seek en banc review, delaying USSC involvement. Their chances are unclear, the likes of Judge Kozinski showing some interest in same sex rights.  One complication is that given size of the circuit, the norm is not to have every judge take part.  To be continued yet again.


* The NYT article explains things helpfully:
Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.
The LAT article is a bit more vague.