Monday, June 24, 2013

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canninghere. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.

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