SCOTUS opinion watch

[Torie]

Apparently, four cases likely to be published in a few minutes (based on two boxes of opinions being observed (apparently typically there are two opinions per box). You can monitor it all on this blog. Will the AZ mapping case be decided?

And the answer is no. Three decisions, all involving procedural lacunae, an attorneys' fee case, a case about the review standard for denial of a visa for a citizen spouse, and the reviewability of a Board of Immigration Appeals' decision. Until this Thursday then, when the next batch of decisions is due.

[Torie]

The marriage equality opinion of SCOTUS may be coming out at 10:00 this morning, EDT, in about 30 minutes. If not that decision, it will be some other decision, or decisions.

One can follow the live blog here, to monitor the action. The blog writers laughs at the buzz that it will be the SSM decision, saying nobody knows. Hey, maybe it will be the AZ redistricting decision.

[Torie]

Two criminal procedure cases decided, and Justice Alito wrote two more that are coming up.

The third case, Davis v Ayala, another criminal procedure case, reversing the 9th Circuit, on the usual 5-4 block vote pattern, finding harmless error.

Fourth case Walker v. Texas Division, Sons of Confed Veterans. Breyer writes for the majority in a 5-4 decision, picking up Thomas' vote of all people, reversing the 5th circuit, holding that vanity license plates are government speech, and thus the government is free to censor what is on the plates.

A goodie from the blog:

"Lovers of Justice Scalia and/or the confrontation clause should DEFINITELY check out Scalia's concurrence in the judgment in Ohio v. Clark. It is some sharply worded stuff -- accuses Alito of "shoveling dirt" on the grave of the key precedents, and using intentionally confusing "dicta" to try to undermine the clause's protections."

One more case to go ...

And it is ... from either Kennedy, Scalia or Roberts ...

Oh from Thomas - Reed v. Town of Gilbert.  This was a 1st amendment unanimous decision, albeit with three concurring opinions, that the town of Gilbert's sign regulations were content based, and thus nixed not surviving strict scrutiny. So government can regulate speech on license plates, because they're government property or something, but not signs because they are not, or whatever. Localities have trouble getting the SCOTUS memo that they should not mess with free speech, absent compelling reasons to do so.

So nothing really sexy for Forumites to feast upon. Next batch of cases is this coming Monday.

Given the schedule of when cases were heard, and how work loads are allocated, and the seniority order and all, the blog thinks this means Kennedy is writing a civil rights case about discriminatory effect versus intent with respect to the fair housing law, which could mean anything as to the result. Kennedy is a swing vote on that set of issues is my impression.

One final blog goodie before I go:

"Kennedy in Davis v. Ayala separately provides a passionate discussion on the problems with solitary confinement with a quote from Dostoyevsky."

And there you have it!

[Torie]

Good morning. We await the next set of case decisions of SCOTUS, which will start being announced in about 15 minutes. The blog action is here.

Two boxes of decisions again, so that means 3-4 cases will be announced.

Kimble v. Marvel Entertainment. Spider-Man case. 6-3 decision affirming 9th Circuit. Alito, Roberts, and Thomas dissent. Court chooses to hew to its prior precedent in Brulotte v Thys Co. A contract requiring the payment of royalties after a patent expires remains unenforceable. Written by Kagan the most junior justice, so any justice could have written the next opinion other than Kagan. You don't mess with precedent with respect to a mere statute, the prior interpretation being one that contracting parties have relied upon.

Los Angeles v. Patel, 5-4 decision written by Sotomayor affirming 9th circuit again. Statute struck down as facially unconstitutional, because it failed to provide for pre compliance review. The question in this case was whether a Los Angeles ordinance that required hotel owners to keep registries of guests, and allowed officers to search them without any suspicion is unconstitutional under the Fourth Amendment. With the name Patel you know it's a motel. Hey, it rhymes!

Kingsley v. Hendrickson. Pretrial detention case. Breyer writes the decision. Vote is 5-4. Under Section 1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim. Typical block vote, with Kennedy the swing vote. Application of a subjective good faith test is rejected.

Horne v. Department of Agriculture. Written by Roberts reversing the 9th circuit (the 9th circuit seems to be ground zero for SCOTUS doesn't it?). Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property. Hands off my raisons! It is 5-4 as to at least some parts. Breyer, Ginsburg and Kagan partly concur, partly dissent. Sotomayor dissents in full. This is a major blow to government's program of trying to boost prices by keeping crops off the market. Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking. It does not mean that the raisins have not been appropriated for government use, nor can the government make raisin growers relinquish their property without just compensation as a condition for selling in interstate commerce.

Well, the good news is that I think I agree with what SCOTUS did above in each instance. Good job SCOTUS. The bad news is that the big 3 are still pending, the AZ commission case, the SSM case, and the Obamacare case about subsidizing premiums for  federal exchanges where a state has chosen not to have a state exchange.

Cases remaining to be decided according to the blogger: Texas Fair Housing Act, Arizona redistricting commission, King v. Burwell, Michigan v. EPA, Johnson v. US, Obergefell v. Hodges, Glossip v. Gross,

Until next Thursday then, when I hope we can do this all again.

[Torie]

For what it is worth, the AZ commission case, and the Obamacare cases were heard in February, and Roberts, Ginsburg and Kennedy have not written any decisions yet for the February tranche. Of the 11 cases argued in February, it's 2 decisions for Scalia, Breyer and Alito, and one for Thomas, Kagan and Sotomayor. So odds are, that one of the missing three are writing the AZ commission case, and the Obamacare case. My bet is that Roberts is writing the Obamacare case, leaving Kennedy or Ginsburg for the AZ commission case. And given  that Kennedy has not written anything as to the cases heard in January, Kennedy is probably writing the Texas fair housing law case decision heard in January.

But one never knows. For example, one justice will not be writing any decision at all for the February tranche, since only the AZ commission case and the Obamacare case remain from February, and three justices have yet to be heard from.

The chart below gives the numbers, but it does not include today's decisions, so mark down a "1" for Sotomayor for the Patel decision.

[Torie]

Sean Trende branches out from being an electoral statistician, to playing Supreme Court bingo. FWIW, his reading of the tea leaves is that the AZ commission is in deep trouble, even if the decision is written by Ginsburg.

[Torie]

Sean Trende branches out from being an electoral statistician, to playing Supreme Court bingo. FWIW, his reading of the tea leaves is that the AZ commission is in deep trouble, even if the decision is written by Ginsburg.

Please stop linking trash from Sean Trende.

His analysis isn't very different than at ScotusBlog. Are they trash, too?

You don't know Torie's history of linking Sean Trende pieces and pretending to not realize that he's a Republican and attempting to pass it off as fair analysis.

Putting aside the tendentious "pretending" bit, yes he does actually.

[Torie]

Good morning again. Two boxes again, so that means 3-4 more opinions.

Texas Housing case, written by Kennedy as expected. Kennedy in 5-4 decision joins the liberals. This is unexpected. The lower court is affirmed, and housing discrimination is an objective test. One looks to impact, not intent. So the next 2 or 3 opinions come from either Kennedy, Scalia or Roberts.

Obamacare! Roberts in 6-3 decision. 4th circuit upheld. Subsidies are available. That sigh of relief you hear is from Obama, along with the Pubs in Congress who were filled with fear and loathing about having to come up with a constructive alternative. Kennedy joins Roberts with the liberals, Scalia writes dissent. These block votes and who swings are just so predictable aren't they?

Well that's it. Only two opinions. The above two decisions must have been long and fat, and took up a lot of room in the boxes. I suspect that is in part due to lengthy dissents.

So that leaves SSM and the AZ Commission as still pending as to the marquee cases. The Demographics board did not get its fix today.

Roberts on Obamacare held that the ambiguity in the language was not subject to administrative interpretation, but parsed the text himself to resolve the ambiguity in the government's favor. He's a very clever man in discerning how to pull textual rabbits out of the hat, seeing what few but him see. He's awesome.

From the majority opinion: "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them." After acknowledging the strength of the plain language arguments from the challengers, the majority says "In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase."  I think Roberts is really saying that the language must have just been f'ed up - to wit scrivener's error although that deus ex machina was viewed by the cognoscenti as not in play here.

In fact, scrivener's error is de rigour in the ACA act. It's a mess. As Robert's writes:  "The Affordable Care Act contains more than a few examples of inartful drafting." Who knew?  

Scalia's reposte: "The majority's reading of the text "is of course quite absurd, and the Court's 21 pages of explanation make it no less so."  Scalia does not like the scrivener's error concept being applied here much now does he?

Anyway, more decisions tomorrow, and more on Monday - same place, same time. See you then. Cheers.

[Torie]

Court is interpretating the section of ObamaCare as the 'state' not 'states'

Interesting, with presumably "state" meaning government (state and federal, as in "ship of state"), in contradistinction to "states," meaning those 50 pesky little governmental entities scattered across the Fruited Plain. Man, Roberts is good.  Obamacare should be "renamed" out there on in the public square as "Robertscare, not "SCOTUScare," as Scalia wants. Roberts deserves all the credit himself for saving its ass - twice now - and in most creative ways, that did not create precedents with which the liberals could wreck more mischief later in other contexts.

[Torie]

Texas Housing case, written by Kennedy as expected. Kennedy in 5-4 decision joins the liberals. This is unexpected. The lower court is affirmed, and housing discrimination is an objective test. One looks to impact, not intent. So the next 2 or 3 opinions come from either Kennedy, Scalia or Roberts.

I know that this case isn't getting much attention, what with Obamacare hogging the limelight and all, but I for one am surprised and very pleased to see SCOTUS defend the principle of fair housing.

This particular DINO agrees with you. There should be zero tolerance when it comes to housing discrimination - Z-E-R-O.

[Torie]

If I understand Torie's analysis, Roberts' interpretation might be even better for the law's prospects than expected. If the majority opinion had been based on administrative interpretation, that would have meant that a Republican President could have reversed the policy at any time, and removed subsidies from federally run exchanges. Here, if I read it correctly, the SCOTUS is essentially saying that "subsidies for all" is the only valid interpretation. Fantastic news!

Also, it's great to see a ruling favorable to anti-discrimination policies. This court session is turning out pretty good so far.

Good point.

[Torie]

Texas Housing case, written by Kennedy as expected. Kennedy in 5-4 decision joins the liberals. This is unexpected. The lower court is affirmed, and housing discrimination is an objective test. One looks to impact, not intent. So the next 2 or 3 opinions come from either Kennedy, Scalia or Roberts.

I know that this case isn't getting much attention, what with Obamacare hogging the limelight and all, but I for one am surprised and very pleased to see SCOTUS defend the principle of fair housing.

This particular DINO agrees with you. There should be zero tolerance when it comes to housing discrimination - Z-E-R-O.

It is not a question of tolerating housing discrimination. It is a question of if you assume an intent based only on a result.

Fair enough. But given that intent is often hard to prove, the effect of a subjective test in lieu of an objective effects test, is that there will be more housing discrimination, and in that sense it's being "tolerated" more than otherwise necessary, as opposed to doing all things reasonably necessary to stamp it out. Obviously, good jurisprudence would insist that there is a textual basis for going the objective route, or at least that the text is susceptible to such an interpretation. But in my view, it is the right policy.

[Torie]

My crazy tea party relatives are saying Roberts was blackmailed into his decision.

What is he hiding in their minds?

[Torie]

Here we go again. SSM, AZ Commission, EPA regulatory standards as to whether costs have been adequately taken into account, lethal injection, armed career criminal act (Johnson). The speculation is that Scalia will say costs matter as to the EPA case, lethal injection held Constitutional, and Johnson is supposed to be a no brainer (I am not sure which way, and really don't know that case), and then SSM and AZ commission, with which we are all familiar.

And we have ... SSM! Kennedy. 14th amendment requires a state to "recognize" a marriage that was performed out of state. So it is a narrow decision as I expected, but Roberts does not sign on, which is unexpected to me. It's a 5-4 decision, usual block. Each of the 4 dissenting judges wrote their own dissent. the opinion is not in a booklet form, either because it was too thick and/or it was finished too recently. Addendum: Scotusblog was wrong - the decision held that states must both license in state, and recognize out of state SSM. So the holding is not narrow, and all my narrow chatter herein should be ignored! The text of the decision is here. The syllabus states: "Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28." (Emphasis added.)

Scotusblog writes: "We are still scanning the opinion to see whether it announces a standard of scrutiny, but it's clear that the Court's opinion relies on the dual rationales of fundamental rights AND equal protection. We'll update more re: the equal protection reasoning as soon as we finish reading." "The opinion seems to go out of its way not to state a standard of scrutiny. Instead, it says, "It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." That's page 22."  

Decision is not as narrow as I assumed per the ruling focusing on recognizing out of state marriages, as opposed to all states having to license them in-state.

Roberts is reading his dissent, and the blog says: "Chief Justice is now reading from his dissent. It is the first time he has ever read a dissent from the bench, according to Lyle (who knows these things)."
Roberts writes: " "If you are among the many Americans--of whatever sexual orientation--who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not Celebrate the Constitution. It had nothing to do with it."

Majority opinion states:  "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. ... [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right."  Again broad language for oddly narrow opinion.

And "The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order."

And it's a living Constitution! "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning."
Very broad, and Scalia must be apoplectic. And the blog says the dissents are indeed, "strident."

This case must be setting a record for announcement time as to how much time the Justices are consuming talking about it. Roberts still reading his dissent, as he has been doing for at least 10 minutes. Very unusual.  

One more box left. SSM took up three boxes all by itself! My oh my.

4 decisions left, and not more than two in the one box, so at least 2 decisions will wait until Monday.

Johnson. Scalia. 8-1 decision. Court holds that imposing an increased sentence under the Armed Career Criminal Act's residual clause violates due process. ACCA residual clause is unconstitutional, but that aspect was 6-3. Alito is the lone dissenter in the ruling. Thomas writes separate concurring opinion, joined by Kennedy. Alito is kind of a hard-ass isn't he?

That's it. So AZ Commission, lethal injection and EPA regulatory standard case (the latter is a huge one economically, far more important really arguably than the one we fixated on, AZ commision), await until Monday.

Until Monday then. You boys enjoy my nattering here?  

[Torie]

Here we go again. SSM, AZ Commission, EPA regulatory standards as to whether costs have been adequately taken into account, lethal injection, armed career criminal act (Johnson). The speculation is that Scalia will say costs matter as to the EPA case, lethal injection held Constitutional, and Johnson is supposed to be a no brainer (I am not sure which way, and really don't know that case), and then SSM and AZ commission, with which we are all familiar.

And we have ... SSM! Kennedy. 14th amendment requires a state to "recognize" a marriage that was performed out of state. So it is a narrow decision as I expected, but Roberts does not sign on, which is unexpected to me. It's a 5-4 decision, usual block. Each of the 4 dissenting judges wrote their own dissent. the opinion is not in a booklet form, either because it was too thick and/or it was finished too recently.

One more box left. SSM took up three boxes all by itself! My oh my.

Huh?

Well, I thought it would be narrow when the holding was about states recognizing out of state marriages, rather than having to license them themselves, thus a right to travel sort of thing, but then we got all that soaring living Constitution rhetoric out of Kennedy, and so yes, it's the precise opposite of narrow in its reasoning. And I don't know, giving all of that rhetoric, why they didn't hold that Mississippi (to pick a state not at random) needs to start itself issuing marriage licenses tomorrow to couples of the same sex (as opposed to merely recognizing out of state SSM). Maybe that is the implication, and the court just dealt with the facts of the case. But it's weird. And I am not a fan of living constitution approaches, unless clearly called for in the text, ala say what cruel and unusual punishment means, which clearly relies on current sensibilities about what is deemed cruel and unusual now, as opposed to when the text was written.

Or maybe Scotusblog got it wrong when it started off saying what was in the case. I was relying on them. Addendum: Scotusblog was indeed wrong. I revised my prior post accordingly with an addendum.

[Torie]

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It's funny how he didn't make a similar argument when striking down campaign finance regulations...

That's not a cultural divide issue, which was Scalia's point. The Court is more diverse as to background, on non cultural issues arguably.

[Torie]

Glossip, the injection case en route to execution. 5-4 usual block. Alito, with Roberts and Kennedy joining the opinion. Scalia concurs, as does Thomas (joined by Scalia); Breyer dissents, joined by RBG. The Court rules that the death-row inmates have failed to establish a likelihood of success on the merits on their claim that the use of midazolam violates the Eighth Amendment. Sotomayor dissents, joined by RBG, Breyer, and Kagan. No surprise this one from the oral arguments. Oklahoma death-row inmates have challenged the state’s use of midazolam, arguing that it cannot reliably render an inmate unconscious.

Inmates argued that other drugs could be used, the Court said they were unavailable. Inmates said they should not have to plead that there was an alternative, Court said yes they did. So I guess the theory is that it is OK to use what is available, even if not ideal.

Breyer and RBG wanted broader briefing as to whether the death penalty is Unconstitutional. They were 3 votes short to go there. Scalia and Thomas in their concurring opinions trash the desires of Breyer and RBG regarding exploring nixing the death penalty.

Sotomayor and Breyer reading their dissents, meaning that they are particularly unhappy with the Court's decision. Now Scalia regarding his concurring opinion about his unhappiness with Sotomayor's and Breyer's qualms about the death penalty. Lots of emotion out there ... again.

Glossip opinion.

AZ commission survives! 5-4. Ginsburg. Usual block yet again, with Kennedy joining the liberals. So the activity level on the demographics board will not get a spike up. All those maps of AZ and CA that were drawn can now be thrown in the trash. Here is the opinion. This decision surprises me, although I am not totally shocked.

"From the final paragraph of the majority opinion: "The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,”
namely, “that the voters should choose their representa­tives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­tions Clause does not hinder that endeavor."

Scalia strikes again with his bon mots: Scalia says he would dismiss for lack of jurisdiction, but that the majority's opinion is so "outrageously wrong" that he cannot avoid joining the Chief's dissent.

Odds are Scalia then is writing the EPA decision, Utility Air, about whether the EPA has adequately taken into consideration the cost factor. And he does indeed, in 5-4 usual block vote, reversing the DC Circuit. The EPA must consider costs before deciding whether regulation is appropriate and necessary; it will up to the agency to decide, within limits of reasonable interpretation, how to account for costs.  Unlike the AZ commission case, this result was expected.

Court granted cert in Fisher: The question presented in the case was this: Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.  So more fun stuff coming next term.

I am going now, but one comment. When I heard Justice Kagan speak at the U of Michigan, in response to a question about whether the predictable block voting in high profile cases was a problem when it came to the credibility of the Court, she said, yes indeed it was. I most certainly agree with her. This term shows no abatement whatsoever in that syndrome. If I were in the Senate, at a confirmation hearing for a SCOTUS nominee, I would focus in on this issue like a laser beam. I would ask, is there any reason to believe that you would not be just another block voter? What can you say to give me some comfort that your votes will not be close to utterly predictable?

Oh, one final thing. Court adjourns. No retirements announced. There was some modest buzz about that possibility. It isn't happening.

[Torie]

I want to thank the participants on this thread. The comments are all good, and thoughtful. It is what Atlas should be. Thanks.

[Torie]

This is interesting.

Does it mean they stay open until October?

So it would seem. I don't think the Texas law will hold up myself. This is an indicator of the way the SCOTUS wind is blowing. It's no surprise.