Supreme Court

Supreme Court strikes a blow for a more sensible Voting Rights Act

Featured image Today, the Supreme Court decided an important Voting Rights Act case. In Shelby County v. Holder, it held that the formula defining covered jurisdictions for section 5 preclearance is unconstitutional. Amy Goldstein of Scotusblog explains: The preclearance provisions of the Voting Rights Act were designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government »

Affirmative action forever

Featured image A few months ago I anticipated the somewhat disappointing result produced by the Supreme Court in the Fisher case addressing the issue of “affirmative action.” I thought pessimism was warranted and that the pessimistic view has been vindicated, although that isn’t entirely clear. In his column this morning George Will capably elaborates on the damage the Court has preserved. I’m taking the liberty of reiterating my own observations on the »

Fisher v. University Texas and the matter of deference

Featured image Today’s Supreme Court’s decision in Fisher v. University of Texas is based on a distinction between the type of deference that courts can grant to universities that use racial preferences in admission. Fisher does not upset past rulings that courts must defer to “a university’s judgment that [a diverse student body] is essential to its educational mission.” Thus, Court’s will continue to defer “to the decision to pursue the educational »

More on Today’s Supreme Court Decision, Fisher v. U. of Texas

Featured image Our friend Kirk Kolbo represented the plaintiffs in the landmark Gratz and Grutter cases that challenged race discrimination at the University of Michigan. Gratz and Grutter provided the framework for the Supreme Court’s decision today in Fisher v. University of Texas, in which a white applicant who was denied admission argued that she had been the victim of illegal race discrimination because of the university’s racial preference policies. So I »

Race-based college admissions dodge another bullet

Featured image As everyone expected, the Supreme Court has rejected a court of appeals decision upholding the racial preference regime used by the University of Texas in college admissions. In Fisher v. University of Texas, the Court held that the Fifth Circuit Court of Appeals applied the incorrect standard. Thus, it sent the case back for further review under the appropriate standard. Under the appropriate standard, the Supreme Court said, a university »

This day in Supreme Court essentialism

Featured image Next month, the U.S Supreme Court, in it wisdom, may pass judgment on the age-old definition of marriage. Until very recently, marriage has universally been deemed to require an opposite sex component, but the Court may overturn this definition. The fact that the Supreme Court is even considering such a change represents, for me, the reductio ad absurdum of American constitutional law jurisprudence. The fact that, until very recently, marriage »

Live from the Upper Midwest Employment Law Institute

Featured image At the moment I am listening to the ostentatiously liberal Judge Mark Bennett of the United States District Court for the Northern District of Iowa summarize the Supreme Court’s employment law decisions of the past year. Judge Bennett wants us to know that he has got his mind right (i.e., left), and how. I understood that from his disparagement of the conservative Supreme Court justices as “the usual suspects.” That »

Affirmative action forever

Featured image In an excellent Wall Street Journal column James Taranto holds out hope that the Supreme Court is on the verge of ending the regime of racial discrimination that it has licensed in higher education. I hope Taranto is right, but I think pessimism is warranted. I’m taking the liberty of reiterating my own observations on the subject below. The principle of equal treatment without regard to race is one that »

The Supreme Court is unlikely to uphold DOMA

Featured image Having listened on C-SPAN to the oral argument in the DOMA case, I believe the Supreme Court will hold DOMA unconstitutional if it reaches the merits. Presumably, the Court’s four liberal Justices would reach that conclusion. And Justice Kennedy seems ready to join them. Kennedy’s questioning of Paul Clement, who was defending DOMA on behalf of the House leadership, demonstrated considerable concern that DOMA constitutes an unwarranted intrusion by the »

The Supreme Court does marriage — episode 2

Featured image Today, the Supreme Court hears oral argument in U.S. v. Windsor. The case presents the question of whether the Federal Defense of Marriage Act (DOMA) is constitutional. The U.S. government argues that DOMA, enacted by Congress with broad support and signed into law by President Clinton, is unconstitutional. The case also presents issues of jurisdiction and standing. Specifically, the Court is called to decide whether the Obama administration’s unwillingness to »

The politics of same-sex marriage constitutional adjudication

Featured image Elahe Izadi at the National Journal suggests that a Supreme Court ruling that the Constitution confers the right to same-sex marriage would help the Republican Party. I agree. Public sentiment seems to be moving rapidly in favor of requiring the state to recognize same-sex marriages. This leaves Democratic candidates increasingly free to “come out of the closet” on this issue and embrace the emerging view. On the other hand, Republican »

The Prop 8 argument — a different take

Featured image The transcript of the oral argument in the Prop 8 case is now available. So is the audio. I haven’t reviewed either yet. Ed Whelan has. His review finds him “much more optimistic than some commentators that the Court will find that Prop 8 proponents have standing and will vote to uphold Prop 8.” »

Report: The Supreme Court will probably duck the merits of the Prop 8 case

Featured image Tom Goldstein, as shrewd an observer of the Supreme Court as anyone I’m aware of, believes that the Court “probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.” The Court could avoid reaching the merits by deciding that the defenders of Prop 8 lack standing to »

Ducking the Prop 8 case would not promote democracy in the same-sex marriage debate

Featured image Michael McConnell is a distinguished scholar, law professor (currently at Stanford Law School, my alma mater) and jurist (he served on the U.S. Court of Appeals for the Tenth Circuit). He is also a friend of Power Line which, I understand, he started reading back in 2002, our first year. McConnell has written a Wall Street Journal op-ed about the two same-sex marriage cases the Supreme Court will hear next »

Gay marriage and the Supreme Court’s empire

Featured image This month, the Supreme Court will hear argument in Hollingsworth v. Perry, which presents the issue of whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman. I wrote here about the Obama administration’s brief arguing that California’s definition is unconstitutional. And I will probably have more to say about the case as it »

Obama adminstration to Supreme Court: Nix California’s gay marriage ban

Featured image Yesterday, the Obama Administration filed a brief urging the Supreme Court to declare unconstitutional Proposition 8, California’s voter-approved ban on same-sex marriage. The brief does not explicitly endorse a constitutional right to same-sex marriage. Rather, it argues that “Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection.” “Prejudice,” the Justice Department sniffs, »

Robert Bork’s Revenge?

Featured image The distinguished jurist Robert Bork has died at the age of 85.  Roger Kimball recalls him here, noting with understatement that the Left’s scorched-earth opposition to his Supreme Court nomination was “obscene.”  I have a long account of it in The Age of Reagan, but the core of the matter is this: “George Will was not alone in calling Bork ‘the most intellectually distinguished nominee since Felix Frankfurter.’  That was »