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

Monday, June 17, 2013

Supreme Court Watch: Not Quite Yet

The end of the term is approaching, so the big ticket cases (affirmative action, Voting Rights Act, same sex marriage) will be decided soon. Today was something of a preview with cases the general public might not care about though they are not totally without interest.  Five cases that are helpfully summarized here, and of course, you can check SCOTUSBlog.

As noted at the link, some interesting splits -- Scalia/Thomas split three times though not quite glaringly. The notable (for sentencing fans) constitutional ruling is probably Alleyne, a ruling that cleaned up an exception to a rule first placed about a decade ago, Breyer joining on mostly for doctrinal neatness. Scalia usually went along, but split with Thomas in this specific instance, which might be of some importance to that area of law, but honestly, probably isn't that important day to day even for criminal defendants. At least, such is my uninformed view.

The other criminal case split 5-4 on predictable lines, though the majority split conservative/more conservative, with Scalia/Thomas in the latter camp. Contra here, "Shorter reasonable, moderate, thinking person’s conservative Sam Alito: “The Fifth Amendment does not entail a right to remain silent" is a bit too blithe.  The ruling involved the state being able to negatively reference silence during a certain type of interrogation.  The dissent looks to be right on a practical level, but it also seems to be a narrow ruling.  He could have remained silent.  Even the dissent doesn't say silence in all cases will save you from negative comment.

A forgotten case that looks a bit notable allows the feds to move along on a case against brand name drug companies that try to keep cheaper versions off the market.  One of the interesting match-ups is also one of the longer opinions of the term (the Court favors short opinions of late). It looks to me to be a fairly narrow split on the proper reach of a law protecting the privacy of records as applied to litigation.  Principles of privacy and discretion to obtain information in civil litigation to protect the public arise here and both sides have positive values to raise.

The last case involves an Arizona voting id law that the majority (by Scalia) decided 7-2 (Thomas/Alito dissenting) wrongly overrode a federal provision, particularly because the Election Clause gives the feds discretion (Kennedy concurred to note he would not focus on that) to override state law (by design).  At first, reading Scalia wrote the opinion seemed a red flag, but it turned out to be an avoidance sort of ruling. Limited one -- the opinion noted that Arizona did have a constitutional power to set voter qualifications as well as to insure that voters met them.[Election Blog provides more dynamics here.]

But, Arizona had a way to raise a claim that the feds here was not appropriately allowing them to do this.  Thus, the voters might lose in the end, if the additional requirement (or something like it) was shown to be necessary and not otherwise a violation of the federal constitution. So, ball in the state's court to press the issue and see how the courts decide. Me personally, I think the law likely to be constitutionally problematic and/or not necessary to defend state voter qualifications, the federal rule of taking an oath satisfactory and additional requirements leading to denial of voting rights with racial and class discrimination implications.

 Not apparently big on the grant scene either. To be cont.


* Justice Thomas' dissent did what "isn't done" -- he directly (not just to an article with the name in the title) cited Bush v. Gore.

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