Supreme Court Watch: Breyer Edition

Today, the Court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections. If the Court’s destination seems fantastical, just wait until you see the journey.

Richard Hasan doesn't seem to agree with this somewhat ironic opening salvo by 4/5 of the justices who joined Shelby.  Breyer wrote the majority opinion of this re-districting case that was a call for a "do over" that Prof. Hasen does argue does help the cause of racial minorities with claims of discrimination to some degree.  Two cases come to mind -- the recess appointment case, where Breyer wrote the opinion that rejected the Obama Administration's position but on narrower grounds than the dissent (Kennedy joined that too).  And, the Fisher case where Kennedy in effect punted and waited for another day to decide affirmative action though doing so by including a few tidbits that suggests the test in place has bite. Time will tell how this will work out. 

Breyer also wrote a 5-4 opinion that was a mixed result in a pregnancy discrimination case, this time Roberts joining the liberals with Alito concurring in judgment. Scalia and Kennedy wrote dissenting opinions, the latter a personal statement akin to his Hobby Lobby opinion that though he is not agreeing with application here, the concern for discrimination in this field is quite important.  This sort of thing might not impress some, but it leaves open the realistic hope that such people aren't lost causes.  Anyway, the claimant has a chance to win, but has a harder time of it now.  Ginsburg joined the opinion without comment.

The Supreme Court also had a couple of opinions yesterday, suffice to say, they were rather technical. The saving grace was one was written by Justice Kagan, so it had some charms to the reader.  Kagan even managed earlier in the term to make an interstate conflict opinion not too bad. Three justices dissented from the denial of cert. (again, the opinion was by Breyer) in a death penalty case.  And, a patent lawyer got off easy for perhaps giving too much discretion to a client writing a petition to the Court.  On special petitions, Paul Clement is 1-2 ("lost and found" petitioner earlier was not given a second chance). To complete the theme, Breyer and Kennedy also testified in front of Congress, including providing some opinions on criminal justice. 

Finally, doing a search, "lesbian" over at Oyez.com (oral arguments) pops up Smith v. California (1959), which ultimately was decided on "scienter" requirement grounds. It involved a lesbian pulp, homosexual friendly literature ultimately getting a mixed level of protection in the courts.  Listening to the oral arguments a bit, there was a reference to the Supreme Court deciding a case involving The Moon Is Blue, a "hey I am naughty, I said 'virgin' " sort of film from the 1950s that some M*A*S*H fans might recall.  The Supreme Court, with only a reference to an earlier ruling saying promotion of adultery or the like isn't a legitimate ground to ban a film, overturned a lower court ruling upholding a locality blocking the film.

Those little snapshots of SCOTUS history are worth noting.