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 Post subject: Re: The Supreme Court
PostPosted: Thu March 21, 2013 4:37 am 
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So I guess we can still sell our shit second hand.


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 Post subject: Re: The Supreme Court
PostPosted: Mon March 25, 2013 3:48 pm 
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http://www.volokh.com/2013/03/25/suprem ... witterfeed

Quote:
Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit challenging the constitutionality of the so-called Michigan Civil Rights Initiative. The U.S. Court of Appeals for the Sixth Circuit, sitting en banc held 8-7 that the initiative was unconstitutional. As Lyle Denniston reports for SCOTUSBlog, the timing of the grant is something of a surprise given that the Court has yet to rule in the Fisher case, which involves a constitutional challenge to the use of race in public university admissions. Were the Court to rule that any and all use of race in admissions violates the Equal Protection Clause, there would be nothing for the Court to consider in Schuette.
Bolded mine. You might want to tune into SCOTUSBlog in the morning the next couple of days, because Fisher might be coming down soon.

The argument used by the Sixth Circuit to strike down the initiative in question is quite clever. It's been quite curious for me to think about for quite some time.

http://www.ca6.uscourts.gov/opinions.pd ... 86p-06.pdf

Quote:
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants’ motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.


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 Post subject: Re: The Supreme Court
PostPosted: Tue March 26, 2013 2:10 pm 
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Since SCOTUSblog is off having fun with the SSM cases today and they didn't live blog, they didn't report immediately on the other dog sniffing case:

http://www.supremecourt.gov/opinions/12 ... 4_jifl.pdf

Quote:
Held: The investigation of Jardines’ home was a “search” within themeaning of the Fourth Amendment.
Quote:
SCALIA,J., delivered the opinion of the Court, in which THOMAS,GINSBURG, SOTOMAYOR,and KAGAN,JJ., joined. KAGAN,J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR,JJ., joined.ALITO,J., filed a dissenting opinion, in which ROBERTS,C. J., and KENNEDY and BREYER,JJ., joined.


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 Post subject: Re: The Supreme Court
PostPosted: Tue March 26, 2013 3:37 pm 
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I think :| is the right smiley for this:



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 Post subject: Re: The Supreme Court
PostPosted: Tue March 26, 2013 3:49 pm 
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From what I'm picking up on my Twitter feed, it sounds like Kennedy isn't the only one that isn't eager to make a sweeping ruling, and that Scalia (surprise surprise) was the only one ready to make a firm declaration. I'm sure there will be some notable sound bites from him soon enough. They may even decide that the Prop 8 supporters lack standing.


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 Post subject: Re: The Supreme Court
PostPosted: Tue March 26, 2013 7:23 pm 
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CNN's nut graph on their lead Supreme Court story is interesting:
A "deeply divided" high court seemed "groping for answers," CNN's Jeffrey Toobin said of today's arguments in same-sex marriage case.

Not sure if they are trying to be funny or they just need a copy editor with a dirty mind.


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 Post subject: Re: The Supreme Court
PostPosted: Tue March 26, 2013 9:37 pm 
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Green Habit wrote:
Since SCOTUSblog is off having fun with the SSM cases today and they didn't live blog, they didn't report immediately on the other dog sniffing case:

http://www.supremecourt.gov/opinions/12 ... 4_jifl.pdf

Quote:
Held: The investigation of Jardines’ home was a “search” within themeaning of the Fourth Amendment.
Quote:
SCALIA,J., delivered the opinion of the Court, in which THOMAS,GINSBURG, SOTOMAYOR,and KAGAN,JJ., joined. KAGAN,J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR,JJ., joined.ALITO,J., filed a dissenting opinion, in which ROBERTS,C. J., and KENNEDY and BREYER,JJ., joined.


I don't know if its surprising that it came down this way, but generally the conservatives on the court love the drug war. The 4th Amendment usually goes out the window when drugs are involved. Drug dogs can be used as probable cause generators even if they are wrong the vast majority of the time provided that they are certified by someone.


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 Post subject: Re: The Supreme Court
PostPosted: Tue March 26, 2013 10:23 pm 
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simple schoolboy wrote:
Green Habit wrote:
Since SCOTUSblog is off having fun with the SSM cases today and they didn't live blog, they didn't report immediately on the other dog sniffing case:

http://www.supremecourt.gov/opinions/12 ... 4_jifl.pdf

Quote:
Held: The investigation of Jardines’ home was a “search” within themeaning of the Fourth Amendment.
Quote:
SCALIA,J., delivered the opinion of the Court, in which THOMAS,GINSBURG, SOTOMAYOR,and KAGAN,JJ., joined. KAGAN,J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR,JJ., joined.ALITO,J., filed a dissenting opinion, in which ROBERTS,C. J., and KENNEDY and BREYER,JJ., joined.


I don't know if its surprising that it came down this way, but generally the conservatives on the court love the drug war. The 4th Amendment usually goes out the window when drugs are involved. Drug dogs can be used as probable cause generators even if they are wrong the vast majority of the time provided that they are certified by someone.
Scalia and Thomas are actually pretty key swing votes in a fair amount of 4th Amendment cases. Then, there's also this, although his reasoning is a bit specious:

http://www.volokh.com/2011/10/07/scalia ... -on-drugs/

Quote:
Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

Federal judges ain’t what they used to be,” he said during a rare appearance before the Senate Judiciary Committee..

The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. “It’s not as elite as it used to be,” he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.


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 Post subject: Re: The Supreme Court
PostPosted: Wed March 27, 2013 2:11 pm 
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The court continues to follow the Walmart v. Dukes trajectory of making it difficult to certify class action lawsuits....

http://www.supremecourt.gov/opinions/12 ... 4_k537.pdf


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 Post subject: Re: The Supreme Court
PostPosted: Wed March 27, 2013 5:44 pm 
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Regarding DOMA, the consensus seems to suggest that Gingburg/Breyer/Sotomayor/Kagan would strike it down on 14th Amendment grounds, while Kennedy would strike it down on federalism grounds. If Kennedy goes that route, I wouldn't be surprised if Thomas jumps on board as well. For lefties, however, that federalism route might be a battle won but a war lost.


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 Post subject: Re: The Supreme Court
PostPosted: Mon April 01, 2013 4:40 pm 
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Green Habit wrote:
Regarding DOMA, the consensus seems to suggest that Gingburg/Breyer/Sotomayor/Kagan would strike it down on 14th Amendment grounds, while Kennedy would strike it down on federalism grounds. If Kennedy goes that route, I wouldn't be surprised if Thomas jumps on board as well. For lefties, however, that federalism route might be a battle won but a war lost.

Besides personal preference and politics, I don't understand how a believer in states' right could rule that DOMA is constitutional.

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 Post subject: Re: The Supreme Court
PostPosted: Mon April 01, 2013 4:47 pm 
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4/5 wrote:
Green Habit wrote:
Regarding DOMA, the consensus seems to suggest that Gingburg/Breyer/Sotomayor/Kagan would strike it down on 14th Amendment grounds, while Kennedy would strike it down on federalism grounds. If Kennedy goes that route, I wouldn't be surprised if Thomas jumps on board as well. For lefties, however, that federalism route might be a battle won but a war lost.
Besides personal preference and politics, I don't understand how a believer in states' right could rule that DOMA is constitutional.
Part of me wonders if Roberts will try to get two 9-0 votes on this case: throw out Prop 8 unanimously on a lack of standing, and on DOMA, everyone either says it violates the 10th or 14th Amendment. Scalia is the one that I think will be the least likely to cooperate--I'm guessing he doubles down on his Lawrence dissent no matter what.


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 Post subject: Re: The Supreme Court
PostPosted: Sun April 14, 2013 5:45 pm 
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Green Habit wrote:
Part of me wonders if Roberts will try to get two 9-0 votes on this case: throw out Prop 8 unanimously on a lack of standing, and on DOMA, everyone either says it violates the 10th or 14th Amendment. Scalia is the one that I think will be the least likely to cooperate--I'm guessing he doubles down on his Lawrence dissent no matter what.
Actually, after thinking about this some more, and reading an article to back up my thoughts, if the Court really wanted to coffin corner the SSM issue back to the 1 yard line, consider this: They could rule that the petitioners lack standing, vacate the judgments of all the lower courts, and remand to the district court with instructions to order a default judgment in favor of the plaintiffs without ruling on the merits.

http://verdict.justia.com/2013/04/11/pr ... k-standing

Quote:
The Consequences of a Denial of Standing to the Proposition 8 Sponsors: Common Ground and Divergent Opinions

But if the Court finds no sponsor standing, what happens next? There seem to be a number of answers that have been offered by various talking heads. In the space below, the first of a two-part series of columns, I explain, albeit in necessarily abbreviated terms, what I think should and might happen.

For starters, if sponsor standing is found to be lacking, everyone agrees (or certainly ought to agree) that the Ninth Circuit opinion invalidating Proposition 8 on the merits and creating law of the Ninth Circuit that could conceivably affect other states and also other issues in the Circuit would be vacated, that is, figuratively erased. Beyond that, there is also broad agreement that the two named same-sex couples in the Hollingsworth case who sought marriage licenses from the county clerks in Alameda and Los Angeles counties, respectively, should get their licenses. But exactly why and how these two named couples would get the relief they seek is where commentators seem to diverge.

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated. The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.” A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask: If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place? There are a few reasons. First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court. (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail. But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.) So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held. Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

As Professor Marty Lederman and I and others have pointed out, under the law of the Ninth Circuit (and perhaps also that of the Supreme Court), a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants’ interactions with other persons. In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs without ordering the defendants to give licenses to anyone else.
The way I understand it, if SCOTUS were to do this, it would render the "enforce but don't defend" tactic that California and the Obama administration have been doing as rather impracticable. Same-sex couples could get their relief, but they'd all have to go to court separately to get it. That forces the government to go all in if they really want to get to the merits.

I'm not sure as to how CA would work, but apparently the White House was concerned that if Obama didn't enforce DOMA, the House could try to completely stall Congress with articles of impeachment:

http://www.nytimes.com/2013/03/29/us/po ... e-act.html

Quote:
When President Obama decided that his administration would no longer defend the Defense of Marriage Act in court, he was presented with an obvious question with a less obvious answer: Would he keep enforcing a law he now deemed unconstitutional?

A debate in the White House broke out. Some of his political advisers thought it made no sense to apply an invalid law. But his lawyers told Mr. Obama he had a constitutional duty to comply until the Supreme Court ruled otherwise. Providing federal benefits to same-sex couples in defiance of the law, they argued, would provoke a furor in the Republican House and theoretically even risk articles of impeachment.

Two years later, that decision has taken on new prominence after Chief Justice John G. Roberts Jr. accused Mr. Obama from the bench on Wednesday of not having “the courage of his convictions” for continuing to enforce the marriage law even after concluding that it violated constitutional equal protection guarantees. The chief justice’s needling touched a raw nerve at the White House. “Continuing to enforce was a difficult political decision,” said an aide who asked not to be identified discussing internal deliberations, “but the president felt like it was the right legal choice.


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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 12:49 pm 
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GH, what you posted sounds this is becoming a ploy to make the Democrats take a party level stand on SSM.

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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 1:15 pm 
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broken iris wrote:
GH, what you posted sounds this is becoming a ploy to make the Democrats take a party level stand on SSM.
Heh. I actually would be surprised if a pro-SSM plank wasn't on the Democrats' platform come the 2016 convention.


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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 4:37 pm 
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Any thoughts on the gene patents case? I find that one far more interesting than the SSM debate.

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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 4:45 pm 
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broken iris wrote:
Any thoughts on the gene patents case? I find that one far more interesting than the SSM debate.
I agree that that one will have a larger overall impact. Patent law gives me a headache to look at, though.


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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 4:57 pm 
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I don't understand how parts of the human genome can be patented. The essence of human existence is now owned by companies? I'm all for capitalism, but this seems crazy to me. What am I missing here?


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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 5:11 pm 
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turned2black wrote:
I don't understand how parts of the human genome can be patented. The essence of human existence is now owned by companies? I'm all for capitalism, but this seems crazy to me. What am I missing here?



Quote:
Myriad prevailed at the United States Court of Appeals for the Federal Circuit, twice, by 2-to-1 decisions. One of the majority opinions said that DNA was a chemical, not an information medium, and that disconnecting DNA from the chromosome changed it enough structurally to qualify for patenting.


Yeah, that doesn't make a lot of sense to me either. That would imply that basically any component of anything would be patentable regardless of it's origin or frequency in nature.

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 Post subject: Re: The Supreme Court
PostPosted: Mon April 15, 2013 5:37 pm 
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broken iris wrote:
turned2black wrote:
I don't understand how parts of the human genome can be patented. The essence of human existence is now owned by companies? I'm all for capitalism, but this seems crazy to me. What am I missing here?



Quote:
Myriad prevailed at the United States Court of Appeals for the Federal Circuit, twice, by 2-to-1 decisions. One of the majority opinions said that DNA was a chemical, not an information medium, and that disconnecting DNA from the chromosome changed it enough structurally to qualify for patenting.


Yeah, that doesn't make a lot of sense to me either. That would imply that basically any component of anything would be patentable regardless of it's origin or frequency in nature.


Yeah, this makes no sense to me.
It also reminds me of something my wife's old pharmaceutical company is fighting. Basically, smaller pharma companies are sidestepping patent laws by combining two or three patented drugs, then patenting that new drug for themselves.
So according to our government, you can combine two patented things or use a component of something that is already patented and not only NOT break patent laws, but then turn around and patent that thing (you basically stole) for yourself.


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