- The 173rd, maybe? “This is not the first time [Linda] Greenhouse has misrepresented the views of her opponents” [Ilya Somin; more from ABA Journal on federalism argument against DOMA as supposed anti-federal-power “Trojan horse”] Was it improper for trial judge Vaughn Walker and appeals judge Stephen Reinhardt not to have recused themselves from Prop 8 case? Legal Ethics Forum bloggers weigh in [John Steele, Richard Painter, etc.] Funny graphic by Cato social media team about Cato’s “odd couple” joint brief with Constitutional Accountability Center [CAC] “Right and Left Continue to Change Where they Stand on Standing” [Ilya Somin] And if you’re going to be on Capitol Hill this Friday and are interested in the DOMA and Prop 8 cases, be sure to attend the panel discussion at which I’ll be joined by Ilya Shapiro and Mary Bonauto;
- On courts’ role in advancing liberty [Roger Pilon exchange with Ramesh Ponnuru] Incidentally, Cato’s “Mr. U.S. Constitution” is now on Twitter at @Roger_Pilon; and he discusses Cato’s high-profile SCOTUS amicus program [here]
- Cook County official has creative theories about federal supremacy [Illinois Watchdog]
- Amicus brief: Congress can’t assert perpetual jurisdiction over anyone and everyone, and that goes for ex-sex offenders too [Trevor Burrus]
- “What are the Weirdest Constitutional Arguments Ever Asserted in Court?” [Orin Kerr and Volokh readers]
- As Court considers voting act in Shelby County case, Chief Justice Roberts sees problem with pretending it’s still 1965 [Ilya Shapiro; more on VRA, 2010 Abigail Thernstrom backgrounder, National Affairs]
Posts Tagged ‘Supreme Court’
When lightning strikes at the high court
An inmate filing pro se gets certiorari, then follows through with a unanimous nine-Justice SCOTUS win, Thomas, J., correcting the Third Circuit. Credit Justice Alito? [Max Kennerly]
Comcast Corp. v. Behrend
As I noted in this morning’s roundup, the Supreme Court spoke on Wednesday about class certification in an antitrust case from Philadelphia. Although a rather narrow and technical ruling it was not devoid of interest, or so I argue in a new post at Cato at Liberty.
Hollingsworth v. Perry oral argument
I’ve got a flash reaction op-ed up at the New York Daily News site.
P.S. @gideonstrumpet: “I was indeed joking.“
Same-sex marriage at the Supreme Court: a scorecard
On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.
The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
Read On…
SCOTUS: courts should defer to agency’s interpretation of its own regs
Justice Scalia and the Ninth Circuit, cats and dogs lying down together? The conservative justice was the only dissenter the other day in a 7-1 Supreme Court decision overturning the Ninth Circuit in the consolidated cases of Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. In doing so, the Court upheld (as the Ninth Circuit had not) the entitlement of the Environmental Protection Agency, and by implication other federal agencies, to deference in interpreting the meaning of its own regulations — so-called Auer deference, as distinguished from Chevron deference in the interpretation of Congressionally enacted statutes. Roger Pilon at Cato sorts it out and concludes that there is nothing paradoxical about the line-up: Scalia is distinctively vigilant against the dangers of excessive delegation of legislative power to executive-branch regulators, and deference tends to intensify the effects of such delegation. (Update: omitted link included now)
Court: reselling foreign editions here doesn’t infringe copyright
The Supreme Court ruled that the first-sale doctrine of copyright law protects the rights of someone who buys books abroad for resale here, whether or not the publisher approves. [Kirtsaeng v. John Wiley & Sons: Joe Mullin/Ars Technica, SCOTUSBlog, Margot Kaminski/Concur Op (“this is all statutory interpretation” and subject to change by Congress; conflict with existing international trade agreements), earlier here and here] More: Chris Newman.
Supreme Court applies stage hook to artful class action dodgers
The decision in Standard Fire Insurance Co. v. Knowles was 9-0, Justice Breyer writing for the Court, and signals’ Justices’ impatience with lawyerly gamesmanship intended to evade CAFA (the Class Action Fairness Act of 2005). I’ve got a short commentary at Cato, which filed an amicus brief on the side that prevailed [decision in PDF, background at SCOTUSBlog, earlier here etc., my new Cato post; more on stage hooks](& SCOTUSBlog, Ted Frank/PoL (“Miller County [Arkansas] trial lawyers had collected hundreds of millions of dollars of legal fees from forum-shopped class-action settlements; the class members whom they purportedly represented likely didn’t even get 10% as much.”))
More: Andrew Trask (“The Supreme Court is envisioning the class action as a procedural aggregation device, rather than a corporate deterrent or a trust-like entity. This is good news for defendants.”); Alison Frankel, Reuters. And I’m quoted on the case in Alex Daniels’ account in the March 20 Arkansas Democrat-Gazette (sub-only).
Gabelli v. SEC: statute of limitations on alleged undiscovered fraud
Yesterday by a 9-0 vote the Supreme Court agreed with a Cato amicus brief that the Securities and Exchange Commission has no power to seek fines or penalties after the statute of limitations has expired on challenged conduct by arguing that it did not discover the conduct until recently. I’ve got a discussion at Cato at Liberty. (& SCOTUSBlog, which also hosts this opinion analysis by Jonathan Macey)
Nice raisin crop you’ve grown there. Now hand over 47% of it to the state.
Max Boot, who has written a new book on the history of guerrilla movements, tells how Shamil, firebrand leader of a celebrated 19th-century Muslim insurgency in Chechnya and Dagestan, began to lose the allegiance of “many ordinary villagers who balked at his demands for annual tax payments amounting to 12 percent of their harvest.” Instead, they switched their allegiance to the rival Russian czar, whose demands were more modest.
Compare the pending case of Horne v. U.S. Department of Agriculture, where, as my Cato colleague Ilya Shapiro explains,
the USDA imposed on the Hornes (long-time California raisin farmers Marvin and Laura Horne) a “marketing order” demanding that they turn over 47% of their crop without compensation. The order — a much-criticized New Deal relic — forces raisin “handlers” to reserve a certain percentage of their crop “for the account” of the government-backed Raisin Administrative Committee, enabling the government to control the supply and price of raisins on the market. The RAC then either sells the raisins or simply gives them away to noncompetitive markets—such as federal agencies, charities, and foreign governments—with the proceeds going toward the RAC’s administration costs.
The U.S. government denies that it owes anything to the Hornes under the Takings Clause, and also says that to contest the legality of what has been done to them, the Hornes are obliged to pay the USDA what it demands — $438,000 for the raisins not handed over, plus $200,000 or so in penalties — and then sue in the Court of Federal Claims to get it back. The Supreme Court has granted certiorari and will hear oral argument March 20.