Supreme Court

There’s no modesty, judicial or literary, in Justice Kennedy

Featured image Justice Anthony Kennedy recently developed and distributed a list of recommended readings for young people. He called it “Understanding Freedom’s Heritage: How to Keep and Defend Liberty.” Here are the items Kennedy selected: Sophocles, Antigone (Antigone’s plea to Creon) (442 B.C.) Pericles, Funeral Oration (431 B.C.) Plato, The Allegory of the Cave The Republic, (Book VII) (c. 380 B.C.) Cicero, First Oration Against Catiline (63 B.C.) Magna Carta (Articles 39 »

Will there be future challenges to race-based admissions policies?

Featured image In response to this week’s Supreme Court’s decision that raised the legal standards race-based preferential admissions policy must meet in order to survive judicial scrutiny, I suggested, facetiously, that I might come out of retirement to litigate such cases. But this assumes that rejected white applicants will bring suits against universities they believe have discriminated against them. Stuart Taylor does not believe they will. Neither does David Bernstein. After all, »

Why the unusual 5-4 split in the Prop 8 case?

Featured image The Supreme Court’s decision in Perry that the parties defending the constitutionality of Prop 8 lack standing did not conform to the usual pattern in cases decided 5-4. Usually in such cases, we see the Court’s four liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan — voting one way while either four or five of the remaining Justices vote the other. Typically, if only four of these Justices vote together, »

What Does It All Mean?

Featured image I’m not sure I can recall a 48-hour period that has sowed more confusion that the 48 hours just past.  Sandy Levinson, a straight-shooting liberal, says the Court’s gay marriage decisions are judicial camels (a horse designed by committee).  I guess I’ll have to wade through the Court’s two opinions, but I doubt that will help very much. Once again, Justice Kennedy has marred what might be a defensible holding »

Justice Alito denounces our “arrogant legal culture”

Featured image Justice Alito’s dissent in the DOMA case contains an instant-classic footnote (number 7). I reproduce it below in its entirety, hoping that you will read the whole thing: The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from »

The Supreme Court does marriage [with updates]

Featured image The Court has begun the festivities by holding that the Defense of Marriage Act is unconstitutional. The decision was 5-4, with Justice Kennedy writing the opinion. Chief Justice Roberts wrote a dissent, as did Justice Scalia. Scalia says the ruling springs from a “diseased root: an exalted notion of the role of this court in American democratic society.” That’s it exactly. I made this point here, among other places. I’m »

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 »