Posts Tagged ‘Supreme Court’

Supreme Court roundup

A Cato-centric list:

Supreme Court’s past refusal to enforce plain language of Contracts Clause cries out for review, but in Minnesota life insurance dispute only Gorsuch is up for the task [Roger Pilon, related Cato podcast] More: John McGinnis;
In Collins v. Virginia, all Justices except Alito agree “that the cops need a warrant to enter your curtilage [area immediately surrounding your home] even if they are doing so to search a vehicle parked there.” [Kevin Underhill, Lowering the Bar, earlier here and here]
SCOTUS agrees 8-1 that arrest can constitute First Amendment retaliation even if also backed by probable cause, a position urged by Cato in its brief [Lozman v. City of Riviera Beach; Heidi Kitrosser, SCOTUSBlog]
Audio: I join Yuripzy Morgan on her WBAL radio show to discuss Husted v. A. Philip Randolph Institute, recent case on Ohio’s maintenance of voter rolls;
Last winter I observed that neither wing of the Court seemed to be angling for a Culture War knockout at the Masterpiece Cakeshop oral argument, and predicted Kennedy might dispose of the case this way [New York Daily News flashback, more on cert grant and on Court’s decision, Cato Tumblr links on the case]
Through pretextual police stops, government stealthily revives that hated institution of colonial days, the general warrant [Jay Schweikert on Cato cert amicus in Johnson v. U.S.]

Filed under: constitutional law, Fourth Amendment, Supreme Court

Courts and political logjams

What one observer sees as a logjam or political gridlock, of course, can look to another like the welcome avoidance of bad legislation. But that’s not the only reason the courts are reluctant to assume one or another new power on the logic that the political branches have wrongfully failed to act in some area. In a new Cato at Liberty post, I cite a notable passage addressing this point in Monday’s Gill v. Whitford decision on redistricting.

Filed under: constitutional law, Supreme Court

Court sidelines gerrymander cases

By February, clues were in plain sight that the Supreme Court was not inclined to hand down a “big” landmark decision this term on gerrymandering. That was confirmed yesterday when the Court got both cases off its plate without reaching the merits, instead disposing of them for now on issues of standing (Gill v. Whitford, Wisconsin) and timing (Benisek v. Lamone, Maryland). Strikingly, both decisions were unanimous as to result, a clue as to the carefully limited scope of what was decided, and both cases can continue in the courts below with their legal theories mostly intact. “The Court has kicked the issue of partisan gerrymandering down the road. States shouldn’t,” I write in a new Cato commentary on the decisions.

Filed under: Maryland, redistricting reform, Supreme Court, Wisconsin

What Not To Wear, Minnesota polling place edition

In its decision yesterday in Minnesota Voters Alliance v Mansky, the Supreme Court ruled that a Minnesota law banning political apparel at polls ran afoul of the First Amendment. The ruling was 7-2, a classic line-up in which the conservatives, Ginsburg, and Kagan joined in a strong free speech stand while Sotomayor and Breyer were more deferential toward speech restrictions. Cato had urged in a brief that the law be overturned.

For the majority, Chief Justice Roberts wrote that while the aim of Minnesota’s law was constitutionally acceptable (keeping peaceful order and preventing electioneering at the polls) the details of its drafting were not. “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable.” So the proposition is not that states can’t regulate the wearing of campaign paraphernalia into the polling place, but that Minnesota needs to come up with rules that are more readily enforced in an even-handed way. More: Eugene Volokh; Trevor Burrus; Andrew Grossman on Twitter (“decision is exceedingly narrow and will only hit the most outlier state laws. Still, a nice win for expressive rights.”)

Filed under: campaign regulation, First Amendment, Supreme Court

Partisan gerrymandering: what the Court could do

At Five Thirty-Eight, Galen Druke provides a helpful breakdown of the different ways the Supreme Court might resolve or fail to resolve the Wisconsin and Maryland partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone. Briefly, the Court could 1) find partisan gerrymandering unconstitutional, and accept the theory of either the Wisconsin or the Maryland case, which are quite different from each other; 2) find it unconstitutional and announce or at least gesture toward a standard other than those urged in the two cases; 3) duck the whole thing on grounds such as standing or mootness; 4) reject the Wisconsin and Maryland theories while leaving the door open (as in Vieth) for a future case to bring in the right theory; 5) reject the suits and all future claims of this sort as not justiciable, which would require Anthony Kennedy’s crossing to join the conservatives’ position in earlier cases; 6) kick the cases to next term, when they could be joined by a North Carolina case; or 7) splinter in some way that resolves the case without letting one of the above outcomes command five votes. A decision of some sort is expected by the end of the term June 25.

Filed under: redistricting reform, Supreme Court

Supreme Court: class actions can’t be brought back time after time

Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it.

Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite?

Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business.

Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA).

The Senate might want to quiz future liberal nominees – yes, there will be such – on whether they more favor the Ginsburg or the Sotomayor approach to these issues.

[cross-posted from Cato at Liberty]

Filed under: class actions, Ninth Circuit, Sonia Sotomayor, statutes of limitations, Supreme Court, tolling

Revisiting Williamson County Regional Planning Commission v. Hamilton Bank

The plight of a Pennsylvania property owner faced with an onerous new ordinance on private graveyards gives the Supreme Court a chance to revisit and revise a 30-year-old decision that requires the targets of takings to go through state court litigation first before suing in federal court for compensation [Ilya Shapiro, Trevor Burrus, and Meggan DeWitt on Cato merits amicus in Knick v. Township of Scott, which follows a cert amicus earlier] More: Ilya Somin.

Filed under: eminent domain, Supreme Court

Michael Greve on Epic Systems and arbitration clauses

On the Supreme Court’s modern development of doctrine favorable to private arbitration, George Mason lawprof Michael Greve is as usual stimulating and surprising [Law and Liberty] And NYU lawprof Sam Estreicher writes that “class action lawsuits are the wrong way to settle employment disputes….Epic Systems may well prove beneficial to workers, a qualified blessing in disguise.” [Bloomberg via Jonathan Adler] More: Christopher Murray, Federalist Society “Courthouse Steps” podcast.

Filed under: arbitration, constitutional law, Supreme Court

Wedding cake cut five ways

I’ve got a piece up at the Weekly Standard on yesterday’s Masterpiece Cakeshop decision, on which a Supreme Court uniting 7-2 on result — but split five ways as to particulars — found the Colorado Civil Rights Commission to have operated unfairly, thus managing to dodge a substantive decision about the limits of forced expression. “Next time you run this process, skip the religious animus” is not the same as proclaiming a First Amendment right for the baker to turn down the wedding, though it may convey a significant message for the future in its own right.

More commentary: Ilya Shapiro (“the real action is foreshadowed by the concurring opinions”), Eugene Volokh (“will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary”), John Corvino (opinion could put a brake on “rushing to dismiss our opponents as ‘despicable'”), David French (Kennedy’s emphasis on comparing the case with cake inquiries that offend other bakers bodes well for religious service providers), and Richard Epstein (“the worst kind of judicial minimalism”; what does the not-yet-legality of gay marriage at the time have to do with anything? and can Colorado reopen the case?), and earlier here. And you can listen to my guest appearance yesterday on the popular Clarence Mitchell IV (C4) show on Baltimore’s WBAL.

Filed under: discrimination law, on TV and radio, religious liberty, Supreme Court

Constitutional law roundup

“Allegation: Maplewood, Mo. officials trap low-income motorists in a repeated cycle of arrests and jailing over traffic violations by requiring them to pay fines and bonds irrespective of their ability to pay. A Fourteenth Amendment violation? The district court did not err, says the Eighth Circuit, in allowing the case to proceed.” [John Kenneth Ross, IJ “Short Circuit” on Webb v. City of Maplewood]
“Does the Excessive Fines Clause Apply to the States? You’d think we’d know that by now — but the Supreme Court hasn’t spoken to this.” [Eugene Volokh]
“SCOTUS Bingo: The Slaughterhouse Cases” [Sheldon Gilbert on Heritage “SCOTUS 101” podcast with Elizabeth Slattery and Tiffany Bates; Eighth Circuit occupational licensure case]
Should committing a crime unrelated to guns or violence lead to lifetime forfeiture of gun rights? [Ilya Shapiro and Matt Larosiere on Cato amicus brief in Kanter v. Sessions, Seventh Circuit]
“A Debt Against the Living: An Introduction to Originalism,” Federalist Society podcast with Michael McConnell and Ilan Wurman discussing Wurman’s new book]
A new and better Article V? [proposal for an “amendment amendment“]

Filed under: Article V, constitutional law, guns, occupational licensure, petty fines and fees, Supreme Court