The Supreme Court

[Green Habit]

Gonna be another huge year with United States v. Windsor and Hollingsworth v. Perry coming to the bench this year, eh?

[E.H. Ruddock]

Lots of stir here in SC regarding the case going to the Court of the adopted Native American girl. I'm not sure why they won't uphold the S.C. Supreme Court ruling, though.

CNN has a decent write-up of it; http://www.cnn.com/2013/01/04/justice/n ... ?hpt=hp_t2


Adoptive Couple v. Baby Girl, a Minor Child Under the Age of Fourteen Years (12-399).

[Green Habit]

Well -- he did not -

Those are the profound four words that the transcript recorded as his first spoken words in oral argument since 2006.

It sounds like he was making a joke instead of asking a question, though, so some may say his silent streak will soon continue. The audio should come out in about a week or so.

[simple schoolboy]

Well -- he did not -

Those are the profound four words that the transcript recorded as his first spoken words in oral argument since 2006.

It sounds like he was making a joke instead of asking a question, though, so some may say his silent streak will soon continue. The audio should come out in about a week or so.

Comparing Clarence Thomas to Samuel L.'s character in Django:

http://www.bostonglobe.com/arts/movies/2012/12/25/tarantino-blows-spaghetti-western-django-unchained/hcwJVvWEtMNrlUlatAF1dK/story.html

Samuel L. Jackson plays crusty, waxen Stephen as a vision of depraved loyalty and bombastic jive that cuts right past the obvious association with Uncle Tom. The movie is too modern for what Jackson is doing to be limited to 1858. He’s conjuring the house Negro, yes, but playing him as though he were Clarence Thomas or Alan Keyes or Herman Cain or Michael Steele, men whom some black people find embarrassing.

[Green Habit]

The Court just granted what could be Citizens United II--a challenge to the limits one can contribute to an individual or party. The case is McCutcheon v. FEC.

http://www.fec.gov/law/litigation/McCutcheon.shtml

Meanwhile, there's another case that the Court didn't act on yet which would definitely be Citizens United III: a challenge to contributions in elections, as opposed to expenditures.

http://www.scotusblog.com/case-files/ca ... ed-states/

Opinions are coming down in a few minutes--if there's anything interesting I'll post it here.

[4/5]

The Court just granted what could be Citizens United II--a challenge to the limits one can contribute to an individual or party. The case is McCutcheon v. FEC.

http://www.fec.gov/law/litigation/McCutcheon.shtml

Meanwhile, there's another case that the Court didn't act on yet which would definitely be Citizens United III: a challenge to contributions in elections, as opposed to expenditures.

http://www.scotusblog.com/case-files/ca ... ed-states/

Well, this could certainly be interesting.

[Green Habit]

The Court just granted what could be Citizens United II--a challenge to the limits one can contribute to an individual or party. The case is McCutcheon v. FEC.

http://www.fec.gov/law/litigation/McCutcheon.shtml

Meanwhile, there's another case that the Court didn't act on yet which would definitely be Citizens United III: a challenge to contributions in elections, as opposed to expenditures.

http://www.scotusblog.com/case-files/ca ... ed-states/

Well, this could certainly be interesting.

SCOTUS denied cert today in that Danielczyk case that I linked to.

[4/5]

So the Court ruled 5-4 that Amnesty International lacked standing to bring a suit on the government's wiretapping programs.

[Green Habit]

So the Court ruled 5-4 that Amnesty International lacked standing to bring a suit on the government's wiretapping programs.

This Court is too strict on Article III standing in general.

[kahli sana]

The Court just granted what could be Citizens United II--a challenge to the limits one can contribute to an individual or party. The case is McCutcheon v. FEC.

http://www.fec.gov/law/litigation/McCutcheon.shtml

Meanwhile, there's another case that the Court didn't act on yet which would definitely be Citizens United III: a challenge to contributions in elections, as opposed to expenditures.

http://www.scotusblog.com/case-files/ca ... ed-states/

Well, this could certainly be interesting.

SCOTUS denied cert today in that Danielczyk case that I linked to.

Hate to be that guy, but, umm...in English? I clicked through to the link, but they just said it was denied. What does that mean?

[Green Habit]

Hate to be that guy, but, umm...in English? I clicked through to the link, but they just said it was denied. What does that mean?

Awwww, I was hoping for an "English, motherfucker! Do you speak it?" quote. Are you asking what the case was about, or what the Court did to deny it?

[kahli sana]

Hate to be that guy, but, umm...in English? I clicked through to the link, but they just said it was denied. What does that mean?

Awwww, I was hoping for an "English, motherfucker! Do you speak it?" quote. Are you asking what the case was about, or what the Court did to deny it?

I think I understand the case (putting limits on biennial contributions is unconstitutional as it limits free speech and isn't supported by sufficient government interest), but the denial is where I came up question marks.

I suppose I could find an online law dictionary and look up certiorari, but asking you seems like a quicker solution with a higher likelihood of understanding.

[Green Habit]

Hate to be that guy, but, umm...in English? I clicked through to the link, but they just said it was denied. What does that mean?

Awwww, I was hoping for an "English, motherfucker! Do you speak it?" quote. Are you asking what the case was about, or what the Court did to deny it?

I think I understand the case (putting limits on biennial contributions is unconstitutional as it limits free speech and isn't supported by sufficient government interest), but the denial is where I came up question marks.

I suppose I could find an online law dictionary and look up certiorari, but asking you seems like a quicker solution with a higher likelihood of understanding.

Hehe. There are very few cases that the Supreme Court is obligated to hear by law--the grand majority are at their discretion as to whether or not to hear them. The losing party in a case will petition a writ of certiorari, asking SCOTUS to hear the case. If four of the nine justices agree that it should be heard, the cert petition is granted--if not, it's denied--and the grand majority of cert petitions are denied. The few that are granted usually arise from some conflict among the lower courts, or if there's simply a precedent that enough Justices think is wrong.

[kahli sana]

Hate to be that guy, but, umm...in English? I clicked through to the link, but they just said it was denied. What does that mean?

Awwww, I was hoping for an "English, motherfucker! Do you speak it?" quote. Are you asking what the case was about, or what the Court did to deny it?

I think I understand the case (putting limits on biennial contributions is unconstitutional as it limits free speech and isn't supported by sufficient government interest), but the denial is where I came up question marks.

I suppose I could find an online law dictionary and look up certiorari, but asking you seems like a quicker solution with a higher likelihood of understanding.

Hehe. There are very few cases that the Supreme Court is obligated to hear by law--the grand majority are at their discretion as to whether or not to hear them. The losing party in a case will petition a writ of certiorari, asking SCOTUS to hear the case. If four of the nine justices agree that it should be heard, the cert petition is granted--if not, it's denied--and the grand majority of cert petitions are denied. The few that are granted usually arise from some conflict among the lower courts, or if there's simply a precedent that enough Justices think is wrong.

Ahh... So basically, the cert petition is the document asking the SC to hear the case, but not enough justices thought it was worth hearing, so the last appellate decision is final. Thanks, GH!

[4/5]

So the Court ruled 5-4 that Amnesty International lacked standing to bring a suit on the government's wiretapping programs.

This Court is too strict on Article III standing in general.

At the same time, I didn't really think the states had standing to challenge Obamacare before it went into effect. But in general I agree with you.

Maryland v. King is pretty interesting. Is it a 4th amendment/privacy rights violation to administer warrantless DNA tests to people who have been arrested when the DNA test is not for the crime they committed, nor one they are suspected of, but rather to be compared to a database of past crimes.

Thanks for bringing scotusblog to me. Probably my favorite blog on the interwebz.

[Green Habit]

Thanks for bringing scotusblog to me. Probably my favorite blog on the interwebz.

Then you probably read that Section 5 of the Voting Rights Act is probably doomed:

http://www.scotusblog.com/2013/02/argum ... ril-maybe/

I don't buy the argument that preclearance itself is unconstitutional, but I don't like the notion that it can apply to some states/localities and not others. If you're going to have preclearance, let's have it for everyone. I wonder if the Court is able to make a clever argument in that regard.

[4/5]

Thanks for bringing scotusblog to me. Probably my favorite blog on the interwebz.

Then you probably read that Section 5 of the Voting Rights Act is probably doomed:

http://www.scotusblog.com/2013/02/argum ... ril-maybe/

I don't buy the argument that preclearance itself is unconstitutional, but I don't like the notion that it can apply to some states/localities and not others. If you're going to have preclearance, let's have it for everyone. I wonder if the Court is able to make a clever argument in that regard.

Section 2 of the 15th amendment: "The Congress shall have power to enforce this article by appropriate legislation."

I just read the last few blog posts and one said the Court already rejected the "equality of the states" argument last time. I'm on board with the idea that Congress needed to update the Section 4 preclearance formula when they renewed VRA65. But since that's unlikely I guess the next best thing would be if the Court decides that Shelby doesn't have standing (funny that I'm saying that after you just mentioned it yesterday) because any formula Congress could come up with would still require them to obtain preclearance.

What do you make of Scalia's comments?

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote 25 in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.

[Green Habit]

Section 2 of the 15th amendment: "The Congress shall have power to enforce this article by appropriate legislation."

Well, I don't think that clause (which is used in other amendments as well) can give Congress carte blanche power to do whatever it wants. For example, if it passed a law saying that it would forbid people from advocating repeal of the 15th Amendment, I'm sure that would be quickly struck down under the First Amendment. For a more real life example, the Court struck down an Oklahoma law with different drinking ages for men and women under the Equal Protection Clause, despite the presence of the 21st Amendment giving states the power to regulate alcohol.

I just read the last few blog posts and one said the Court already rejected the "equality of the states" argument last time. I'm on board with the idea that Congress needed to update the Section 4 preclearance formula when they renewed VRA65. But since that's unlikely I guess the next best thing would be if the Court decides that Shelby doesn't have standing (funny that I'm saying that after you just mentioned it yesterday) because any formula Congress could come up with would still require them to obtain preclearance.

I should probably make something clearer--I don't think that Section 5 is unconstitutional. I wish it was based on the "equality of the states" argument, but unfortunately I can't find anything in the Constitution that mandates that. Then again, I'm not as clever as the Justices are, and maybe they could find a way if they so choose.

My preferred change in the law is to apply preclearance to every state, but barring that I could be on board with updating the Section 4 formula as you suggested. And I'm pretty certain that Shelby County would always have standing since they are directly targeted by Section 5--it just doesn't mean that they could ever win on the merits, though.

(BTW, this "equality of the states" argument could come up again with Chris Christie trying to legalize sports betting in NJ despite a federal law limiting it only to Nevada, Oregon, Montana, and Delaware. Such a bullshit law.)

What do you make of Scalia's comments?

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote 25 in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.

Those were bad, but they weren't as bad as the death penalty comments.

[4/5]

Well, I don't think that clause (which is used in other amendments as well) can give Congress carte blanche power to do whatever it wants. For example, if it passed a law saying that it would forbid people from advocating repeal of the 15th Amendment, I'm sure that would be quickly struck down under the First Amendment. For a more real life example, the Court struck down an Oklahoma law with different drinking ages for men and women under the Equal Protection Clause, despite the presence of the 21st Amendment giving states the power to regulate alcohol.

Good point. I would simply argue that in this particular case they had/have a legitimate interest in restricting the rights of some states and localities to change their election policies without preclearance in order to protect the 15th amendment. I don't love that it treats states differently either, especially since it does so based on 1970s data. But even if the course Congress has chosen isn't ideal, this seems to be more of a political question than a constitutional question IMO.

Those were bad, but they weren't as bad as the death penalty comments

This rings a bell but I'm drawing a blank.

[Green Habit]

Those were bad, but they weren't as bad as the death penalty comments

This rings a bell but I'm drawing a blank.

They were actually from when the Court last addressed the VRA four years ago, referring to the fact that it was passed 98-0 in the Senate:

The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.