Saturday, June 27, 2015

As The Case May Be

Don't have too much to say right now about the Supreme Court's all-but-over term.  Here's a piece I posted a few weeks ago on then-upcoming cases.  Of more interest may be Denver Guy's comment, where he bravely predicted the results.

How'd he do?  Read the following and judge for yourself.  (And see my comments, remembering I haven't read these cases, just the reporting on them.  I'll try to update when all the cases are in.)

1. Obergefell vs. Hodges. I think the S.Ct will strike down on equal protection grounds all State Constitutional and Statutory definitions of marriage that require the parties to be of different sexes. They will leave open the question of whether marriage, by any other name, equally protects the citizens' rights to marry each other one on one. The next case will be Colorado and other states that have parallel civil union and marriage statutes. If separate but equal is (again) ruled insufficient, the last case will be whether states can eliminate all references to marriage in their statutes and change the name formally to civil unions.

I think the Court went further than this.

2. King vs. Burwell. I actually think Roberts will join the conservatives this time and rule that the ACA says what it says, arming the Republican Congress with the leverage to amend the statute. As PJ Guy says, it won't amount to much - just a test of who can spin the result and subsequent amendments better.

Both Roberts and Kennedy joined the liberals.

3. Zivotofsky vs. Kerry. The President wins the question of who decides what nations are recognized by the US passport authorities (Jerusalem is left disputed, Israel supporters get to rail against the S.Ct.)

The Court did indeed declare, 6-3, this is the President's call.

4. Elonis vs. U.S. Kennedy champions free speech and Facebook threats - crimes require intent. This also doesn't make too much difference - courts have always had to decide if threats are credible (would a reasonable person be alarmed).

A pretty easy call.  It's distressing the vote wasn't unanimous, with Justice Thomas showing once again a troubling, limited view of free speech.

5. Texas vs. Inclusive Communities Project. Fair Housing Act is constricted again, as I think a majority does not like disparate impact as a basis for discrimination claims. Never forget the three levels of deceit: lies, damnable lies, and statistics.

It was a good year for the liberals, as once again Kennedy joins them in a 5-4 opinion.  Some claim that the opinion has certain limitations built in, but the big question is always more important than the small qualifications.

6. Arizona State Legislature vs. Arizona Independent Redistricting Commission. I think the S.Ct declines to rule that the "people" can operate as a sort of "legislature of the whole," to create redistricting committees. Republicans in Arizona and Democrats in California both lose.

Arizona can use an independent commission for redistricting.  This is a 5-4 Ginsburg opinion, so I guess it's considered a liberal win, though I'm not entirely sure why.

7. Michigan vs. EPA. No call on the EPA case. The regulation at issue is aimed at real pollutants like mercury. I think it is clear that EPA has authority to act, but I don't know if they violated their own procedures for developing the reg.

A 5-4 Scalia opinion saying the air pollution rule went too far.  Once again, the vote aligns along political lines.

8. EEOC vs. Abercrombie & Fitch. No call on the head scarf case. I would lean toward the right of businesses to present the look they want as long as it is for business purposes. Could a Vampire retail outlet bar employees from wearing crosses? I think so.

I'm a little surprised the hijabs won 8-1.

9. Horne vs. U.S.D.A. I think this S.Ct. is gradually cutting back the authority of the Commerce Clause, and so will undo the price support system for raisins.

The conservatives finally win one, 5-4, dealing with the great raisin scourge.

10. Walker vs. Texas Division, Sons of Confederate Veterans. States should win the right to restrict what they put (say) on their specialty license plates. It simply is not too great a burden on public speech to require someone who wants to sport a confederate flag to buy a bumper stick vs. having it on their license plate created by the State. Equal Protection does not mean every special interest group has a right to make the State speak on its behalf.

I wrote about this earlier.  The case didn't seem especially political to me, so I was disappointed that the liberals voted in lockstep, joined by the predictably anti-confederate Justice Thomas.

11. City of Los Angeles vs. Patel. No call on whether cities can require motels to keep guest registries to facilitate police activities.

Limiting inspection powers (at least for now), the liberals take this one 5-4 with help from--who else?--Justice Kennedy.

12. Glossip vs. Gross. No call on whether States can decide how to execute death sentences. But if the States lose, look for several to reinstitute the firing squad, which was never declared cruel or unusual, and is still allowed by the Fed. military in cases of dissertion, I believe.

A 5-4 Alito opinion allowing states to execute as they wish.  It's depressing how so many of these vote splits are political.

13. Ohio vs. Clark. No call on whether teachers can testify in place of 3-year-olds who are too young to take the stand. It seems to me that babies are evidence, not accusers, and therefore the teacher would be testifying as to her personal observation of the evidence, not conveying hearsay evidence.

Unanimous decision allowing the testimony by sidestepping the Confrontation Clause and claiming the statements weren't made to create evidence.


Blogger New England Guy said...

Difficult to predict since it boils down to mainly to the question of what will Kennedy do and occasionally what does Roberts think is statesmanlike. Both I think involve more judgments of human psychology than of legal reasoning.

Will be interesting to see what legal scholars and historians think of this court 10-20 years from now. Might depend on future appointments and direction. Geoffrey Stone (acting Dean I think of U Chicago Law) was in town a few years back and prognosticated the Supreme Court "breaking" (or at least the process for appointments) if one of the "conservatives" (whatever that means) left while Obama (or presumably Clinton) were in office or if a "liberal" (what say?) left during some hypothetical Republican president. Interesting times (in the Chinese sense) lie ahead

4:48 AM, June 27, 2015  
Anonymous Denver Guy said...

Thanks for the repost. I would give myself 6.5 out of 10 so far. My biggest surprise was the Fair Housing Act case. What happened to "the best way to stop discriminating on the basis of race is to stop discriminating on the basis of race." I take some solace that Kennedy stated plainly that statistical evidence of disparate impact alone could not support a FHA claim of discrimination, and he warned against using quotas to resolve disparate impacts. But what does he expect will happen? 2% instead of 10% of the residents in a particular condo turn out to be African American. This statistic is meaningless, as there are thousands of reasons this might be the case, most of which are entirly innocent. Yet the gov't may continue to force property owners to spend a fortune to defend their housing practices, or create race conscious "remedies" for something that was not the result of bad intent. Or more likely, create secret quotas, which no one will ever challenge, just to avoid the hassle and keep the gov't of their backs.

6:11 AM, June 28, 2015  
Anonymous Denver Guy said...

To avoid another possible half point, I'm upping my prediction on Glossip to letting States pick there lethal injection solution themselves. I just don't think the S.Ct wants to be scrutinizing chemical formulas, and it isn't like States are insensitive to the need to complete executions quickly and painlessly.

Note, I'm leaning toward a win for the EPA on the Clean Air Act. The Court is clearly up on defference to Congressional intent (see Burwell).

6:18 AM, June 28, 2015  
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2:22 AM, July 13, 2015  

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