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

Monday, June 24, 2013

Supreme Court Watch

The prelude was handing down orders, including a per curiam "bad boy" to the 9th Circuit.  You know, rather normal.  More importantly, they (as most expected) granted the Canning recess appointment case.  Wonder how the situation will be politically by the time it is argued/decided. An abortion protest case was also granted -- devil will likely be in the details.

Onward to the main event. The general sentiment was that conservative justices were going to be writing most of the remaining opinions, Alito deemed likely to be the author of a major employee rights case. So it was.* Per SCOTUSBlog (tweet): "Major 5-4 victories for employers and losses for employees in discrimination rulings today."  Expect to find some cynical blog posts like this one on how business tends to win.  Not always, but more so these days.  Conservatives picked more justices after all.

Breyer did write an opinion, again writing for five (while two concurred) as to the reach of a federal law (this one related to the military) covering sex offenders after they leave prison.  This time, Alito also concurred, but Roberts (not Kennedy) was the second concurrence.  Breyer's last ruling here (U.S. v. Comstock) was seen by some as a broad reading of the Necessary and Proper Clause that might imply a win in the PPACA cases.  Roberts concurred to warn against an reading too much into the opinion no federal police power, no “great substantive and independent power” of that sought enumerated or implied. See also, his opinion in PPACA. Scalia/Thomas dissented, Scalia concurring in part to note Thomas went too far for even him.

SCOTUSBlog also summarizes: "Drug companies prevail in suit over inadequate drug warnings. Claims are preempted by federal law. 5-4."  Usual suspects. The big ticket case decided today is the Fisher affirmative action case.  They punted.  You can tell by the 7-1 vote.  The solo dissent was a brief one by Justice Ginsburg that has some good lines about how race is going to be addressed somehow, so let's not be overly coy about it.  Also, the program is okay, no need to send it back because the lower court allegedly didn't apply strict scrutiny.  If the matter had to be put to a head, her opinion would probably be the right one. 

But, especially since (as Scalia noted in his concurrence; Thomas reached out and said he would overrule) the petitioner didn't ask Grutter to be overruled, this is a way to handle things. Taking this long to say pretty little (some want to read more into it; maybe) is curious, leading to some likelihood that the Court was more divided on the question originally. Kennedy's ruling makes some degree of sense -- the lower court very well might have been too lenient about scrutinizing though doubt it was totally unreasonable to applying Grutter.  But, a dissenter is now the swing vote.

So, the employee cases are losses, but the left yet again (see Arizona voting rights case) got more than one might expect.  We still have VRA, the marriage cases, a tricky Native American adoption case and a Takings case. And, maybe something else of interest, including orders.


*This essay supports the dissent, but makes a telling point: the majority rejected the stance of the EEOC.  If a matter of policy and reasonably open to dispute, deference should be given to the administrative agency. 

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