As we’ve been saying, the Obama Department of Justice has been taking a licking at the Supreme Court, managing to lose some decisions by a 9-0 margin. Damon Root compiles greatest hits and quotes me (thanks) on the Hosanna-Tabor case. [Reason]
Posts Tagged ‘Supreme Court’
SCOTUS resolves one unclarity of federal wage and hour law
Only 1,999 unclarities left to go. I explain yesterday’s decision in Sandifer v. U.S. Steel Corp., the “don/doff” case, at Cato at Liberty (& welcome SCOTUSBlog readers).
Supreme Court and constitutional law roundup
- SCOTUS to hear case of Susan B. Anthony List v. Driehaus, First Amendment challenge to state laws regulating truth of political speech [IJ/Cato amicus cert brief]
- Groups of law professors file amicus briefs in Halliburton Co. v. Erica P. John Fund, Inc. arguing that retreat from “fraud on the market” theory is consistent with modern scholarship on capital market efficiency [John Elwood] and sound statutory construction [Elwood, Bainbridge]
- Behind the Michigan affirmative action plan in Schuette, including colorful background of litigant BAMN (“By Any Means Necessary”) [Gail Heriot, Federalist Society “Engage”]
- Court dismisses Mulhall v. UNITE HERE (challenge to employer cooperation agreement with union as “thing of value”) as improvidently granted [Jack Goldsmith, On Labor, earlier]
- Affordable Care Act saga has taken toll on rule of law [Timothy and Christina Sandefur, Regulation]
- Lol-worthy new Twitter account, @clickbaitSCOTUS, with content like “The nine words no appellate advocate wants to read” [re: Madigan v. Levin]
- Drug War vs. Constitution at Supreme Court, 1928: Drug War won by only one vote and you might not predict who wrote the most impassioned dissent [my Cato post]
A constitutional showdown for the Drug War — in 1928
Presumptions of guilt without actual evidence? It squeaked by at the Supreme Court by only one vote, in a case that should be better known [my new Cato post]
“Government should not force people into unions”
Columnist George Will cites the Cato Institute amicus brief in Harris v. Quinn, the Supreme Court case over whether states may properly herd home caregivers reimbursed by government checks into collective representation [syndicated]. Earlier here. More: Ilya Shapiro, Michael Greve.
More: Reports on the oral argument from Ilya Shapiro, Cato, and from Reuters.
Supreme Court on civil procedure: calm and unanimous
One (Hood v. AU Optronics) went for plaintiffs, the other (Daimler AG v. Bauman) for defendants, but both were unanimous, in another indication that the work of the Justices rises well above the silly caricature offered by critics like Sen. Elizabeth Warren (“wholly owned subsidiary of Big Business,” etc.) I explain at Cato at Liberty. While Justice Sotomayor in a separate concurrence took a different approach to the problems of general jurisdiction, it arrived at the same place with respect to the unreasonableness of suing Daimler in California over faraway conduct.
For more on the Warren outburst, see Ramesh Ponnuru last September. Earlier links on the AU Optronics case here and here. Similarly: Josh Blackman.
More: While concurring in the result of Daimler v. Bauman, Justice Sotomayor sharply differed on the reasoning, which resulted in some unusually strong language directed at her from Justice Ginsburg writing for the other eight Justices [Blackman] Eugene Volokh considers the foreign-law angle. (& welcome Amy Howe/SCOTUSBlog readers)
Recess appointments at the Supreme Court
Explainers by Trevor Burrus and William Baude at Forbes and by Nina Totenberg at NPR . “Noel Canning” is a packaging company in Yakima, Wash., not a person like Noel Coward, but confusingly enough is represented by Noel Francisco of Jones Day, who is a person. Coverage of yesterday’s Supreme Court argument from Cato’s Ilya Shapiro, who says the argument went very badly for the administration’s claims of executive power. “At one point during argument, SG Verrilli argued for Schroedinger’s Senate: in session re 20th Am, not in session for Recess Appts Clause.” [@ishapiro] Cato’s brief in the case is here.
“Will Supreme Court open the ‘lawsuit laundromat’?”
The Supreme Court will decide momentarily whether to review two more “musty washing machine” class actions. “The legal rules at play in the washing machine cases will have impact on a much broader array of businesses, which is why industry and technology groups have flooded the Supreme Court with briefs expressing their concern.” In particular, if the courts develop a liberal standard for “predominance,” it will often be feasible for lawyers to assemble class actions that include consumers who are not bothered by an alleged defect, as well as those that are. [James Copland, Washington Examiner] Earlier here and here.
How could lawprofs have gotten the ACA case so wrong?
Again and again, as legal challenges to ObamaCare made their way forward, leading law professors dismissed as frivolous or inconsequential arguments that wound up convincing many or most Justices on the Supreme Court. David Hyman via Stephen Bainbridge:
Almost without exception, law professors dismissed the possibility that PPACA might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong,
but never in doubt.
Related: NYU Prof. Jonathan Haidt, who has written powerfully about the lack of ideological diversity in academia, has this page of resources on the subject. And don’t forget my book Schools for Misrule.
More: Nick Rosenkranz at Volokh back in April.
Fifty years ago today…
…the U.S. Supreme Court heard argument in what was to become one of its most celebrated tort reform decisions. A profitable national manufacturer had been sued in a distant rural state in which it was decidedly unpopular, resulting in a runaway jury verdict which it sought to challenge on appeal. Pointing out the disadvantages of unpredictable and locally variable tort standards, the corporation’s lawyers pushed for a more uniform and modern standard of liability suited to a nationwide market, which the high court agreed unanimously to develop for the occasion and impose on state courts. And ever since 1964, the winning party in the case — that is to say, the New York Times Company — has taken a sympathetic editorial interest in the plight of other national businesses subjected to runaway verdicts in local courts.
Well, OK, maybe not that last sentence. But the rest of it did happen, in the celebrated case of New York Times v. Sullivan.