The Power of the SCOTUS II: "Release the Kagan!"

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

23 to go with 3 weeks left in the term. Probably 5 more release days for opinions, maybe 6. So expect 4-5 each day, starting today.

First up is U.S. v. Jicarilla Apache Nation. 7-1 decision by Alito, with Justice Kagan recused. Justice Sotomayor dissents alone. The Court holds that the fiduciary exception is not present in the trust relationship between the United States and Indian Tribes.

Janus Capital v. First Derivative Traders - the sole remaining case from December is 2nd up. 5-4 opinion by Thomas, with the liberal wing dissenting. Because the false statements in the prospectuses were made by an investment fund, not Janus Capital, Janus cannot be held liable in a private action. A win for the corporations, a loss for investors/the little guy.

Up 3rd is Nevada Comm'n on Ethics v. Carrigan. A unanimous judgment written by Scalia. The Nevada ethics in government law is not overbroad in prohibiting a legislator with a conflict of interest from both voting on a proposal and advocating its passage. Kennedy concurs, and Alito concurs in part and in the judgment.

Last up is Flores-Villar v. United States - one of the two remaining cases from November. The decision is affirmed as a matter of law by an equally divided court (4-4)(Kagan recused). This case involved the citizenship of children born overseas and was brought as an equal protection case. Essentially, the rules make it easier for children to get citizenship through their mothers than their fathers.

19 to go, including the video games case and the Wal-Mart case.

The Flores decision isn't posted yet, so no idea how the voting broke down. The affirmance as a matter of law means that the rule stays in place per the 9th Circuit's opinion below, but the case has no precedential value for future cases, thus the same issue could make its way to the court again.

Edit: It's a per curiam decision, which means we'll never know who voted which way, only that it split 4-4.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

More released this morning (several were released last thursday, too...I was at a conference so couldn't update the thread) as we approach the end of the term:

First up is a 5-4 decision in Turner v. Rogers, a right to counsel case involving a civil contempt charge. The liberal wing wins out by swaying Kennedy to its side. Thomas dissents, joined by Scalia in full and in part by Roberts and Alito.

Next up is Am. Electric v. Connecticut, the global warming case. Unanimous decision by Ginsberg (Sotomeyer recused), saying EPA regulations and federal law preclude a nuisance suit under state tort law for global warming pollutants.

Third up this morning is Borough of Duryea v. Guarnieri. 8-1 decision by Kennedy with Scalia partially dissenting. The Court holds that a government employer's allegedly retaliatory acts do not give rise to liability under the Petition Clause unless the employee's petition relates to a public concern. Meh.

4th (and final one) for today is a biggie - the Wal-Mart class action suit. Semi-unanimous decision by Scalia, with Ginsberg (joined by the rest of the liberal wing) concurring in part and dissenting in part. Class certification was not proper under Rule 23 - specifically, wal-mart is entitled to individual consideration of things like back pay for employees.

If my math is right, that leaves 9 opinions to go for the final week and a half, including the video games case.

 

[ScottM]

Re: The Power of the SCOTUS II: "Release the Kagan!"

4th (and final one) for today is a biggie - the Wal-Mart class action suit. Semi-unanimous decision by Scalia, with Ginsberg (joined by the rest of the liberal wing) concurring in part and dissenting in part. Class certification was not proper under Rule 23 - specifically, wal-mart is entitled to individual consideration of things like back pay for employees.

One hand, this may be a big win for business, but it may also have the effect of creating "micro-class actions", in judicial hellholes against a few stores, divisions, etc. where juries can really go off the rails. I can see the Supremes revisting the "commonality" requirements a few more times.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

10 to go according to SCOTUSBlog, so my math was slightly off before.

First out today is Bullcoming v. NM - a 5-4 decision by Ginsburg with lots of concurrences in parts. She's joined in the outcome by Scalia, Thomas, Sotomayor, and Kagan. Kennedy dissents, joined by Roberts, Alito, and Breyer. Not an ideological split. Issue is the confrontation clause with regards to expert testimony through a lab report. Essentially, can a supervisor or other lab employee introduce the opinions of another lab analyst through a report? The Court said no, the analyst who made the opinions must provide the testimony in court per the confrontation clause.

2nd out is CSX v. McBride - also by Ginsburg and another 5-4 decision with the liberal wing joined in most parts by Thomas. Case involves the causation required under FELA in a railroad accident. Roberts dissents, joined by Alito, Scalia, and Kennedy.

next is PLIVA v. Mensing - a case involving drug labelling requirements and whether state tort law contravenes the federal FDA rules and requirements. 5-4 decision by Thomas, which Kennedy joins only in part. Liberal wing dissents in an opinion by Sotomayor.

4th out is Freeman v. U.S. - involving federal sentencing guidelines. Yet another 5-4 opinion, this one by Kennedy, who is joined by the liberal wing, though Sotomayor only joins in the judgment and writes separately. Roberts dissents, joined by the rest of the conservative wing. Following a plea bargain, a defendant may nevertheless be eligible for a reduced sentence if the sentencing commission later lowers the sentencing guidelines for that crime.

5th is Sorrell v. IMS - 6-3 decision by Kennedy. Breyer dissents, joined by Ginsburg and Kagan. Involving prescription drugs.

Last out today is the Stern decision - aka the Anna Nicole Smith case. 5-4 decision by Roberts and the conservative wing. Breyer dissents, joined by the liberal wing.

Believe that leaves 4 to go for the final week, including the video games case. They should all be released on Monday, though the Court could have another release day later in the week.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Last opinions of the term should be released in an hour or so. Most people expect the court to strike down both the California video games law and the Arizona campaign financing law. I'd have to agree. Prediction is Roberts writes both opinions, striking down both laws by 6-3 margins.

We'll know early on if the video games case is decided differently. Since opinions are released in reverse order of seniority (with Roberts the most senior as Chief), if Sotomeyer or Alito is the author (they're the other likely candidates since they don't have any majority opinions from November), it'll likely be the first one released this morning.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

And here we go:

11 more cert grants for next term - including FCC v. Fox, regarding indeceny over the airwaves.

First opinion out is Goodyear v. Brown, a case involving personal jurisdiction (essentially, can the company be sued in a state for something which occured in another state?) Ginsburg writes for a unanimous court.

Also a per curiam decision in U.S. v. Juvenile Male, which the Court denies the anonymous person's claim as moot by a 5-3 vote. (at issue was whether sex offender registry would apply to people convicted prior to its enactment, or whether such application would run afoul of hte ex post facto clause). The 3 dissenters would've remanded to the 9th circuit for them to decide if it was moot or not.

Next out is J. McIntyre Machinery, Ltd. v. Nicastro - another jurisdictional case involving a foreign manufacturer selling foreign goods. Plurality opinion by Kennedy (joined by Scalia, Thomas, and Roberts) says the state has no jurisdiction as the company has not availed itself of the state's laws. Breyer and Alito concur in the judgment. Ginsberg dissents, joined by Kagan and Sotomayor. Difference to Ginsberg was in the last one, the accident was in France and the tire was sold in france. Here, the incident took place in New Jersey.

Last two of the year are campaign finance and video games, both of which will be by Roberts unless Kennedy or Scalia is writing one or the other...

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

First out is the video games case. The Court strikes it down in an opinion by Scalia, 7-2. The act of forbidding sale or rental of violent games to minors does not comport with the 1st Amendment. Alito and Roberts concur in the judgment. Thomas and Breyer both dissent. Interesting split, to say the least.

Alito and Roberts would've held the door open for a future law that was narrowly tailored. Scalia and the majority pretty much shut the door on that ever happening.

Thomas's dissent is based on originalism. Breyer would've upheld the law saying there was enough evidence to support it.

Still waiting on the campaign finance decision...(Scalia is apparently reading his decision still).

Also, it's possible Alito was writing a majority opinion, and lost it to Scalia. Which might explain why it took so long.

 

[JF_Gophers]

Re: The Power of the SCOTUS II: "Release the Kagan!"

First out is the video games case. The Court strikes it down in an opinion by Scalia, 7-2. The act of forbidding sale or rental of violent games to minors does not comport with the 1st Amendment. Alito and Roberts concur in the judgment. Thomas and Breyer both dissent. Interesting split, to say the least.

Alito and Roberts would've held the door open for a future law that was narrowly tailored. Scalia and the majority pretty much shut the door on that ever happening.

Thomas's dissent is based on originalism. Breyer would've upheld the law saying there was enough evidence to support it.

Yay for parents having to do their jobs instead of the government doing it for them.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Final decision is 5-4 by Roberts, striking down Arizona's law. Kagan dissents, joined by the liberal wing.

Also, footnote 4 of Scalia's opinion in the video game case says playing mortal Kombat deserves as much protecetion as reading the Divine Comedy. That's gold, Jerry. Gold!

 

[Bob Gray]

Re: The Power of the SCOTUS II: "Release the Kagan!"

unofan,

Thanks for the updates. I don't always agree with you on things, but these are a real nice way of getting a feel for what the Supreme Court is up to.

 

[joecct]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Yay for parents having to do their jobs instead of the government doing it for them.

I concur with JF_Gopher's opinion.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

As an aside, I must state I'm having a "holy ****" reaction to the comments on any of the major news sites about the video games decision, even the NY Times.

It amazes me that people honestly think this ruling means stores will be selling CoD to a 5-year old and the parent can't stop it, and that somehow the court is treating video games differently than movies. I guess I shouldn't be surprised, though, that people think the restriction on kids going to rated R movies is backed by the force of law and not merely a voluntary business practice.

Also, I just re-read Thomas' dissent to make sure I had it right. He essentially says kids have no first amendment rights to speak or be spoken to whatsoever. I now understand why Scalia *****slapped him in a footnote.

 

[Kepler]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Scalia's snark is fun -- when you agree with him.

 

[Priceless]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Also, I just re-read Thomas' dissent to make sure I had it right. He essentially says kids have no first amendment rights to speak or be spoken to whatsoever.

Kids have no first amendment rights? That's a frightening thought.

 

[unofan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Kids have no first amendment rights? That's a frightening thought.

The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.
...
Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment. I respectfully dissent.

Scalia, in a footnote, shoots that down pretty quick, saying by that logic, children might not have any first amendment rights whatsoever, and thus states could criminalize churches who allow kids to attend without their parents present, or politicians who let kids show up at a rally without parental consent.

 

[Priceless]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Scalia, in a footnote, shoots that down pretty quick, saying by that logic, children might not have any first amendment rights whatsoever, and thus states could criminalize churches who allow kids to attend without their parents present, or politicians who let kids show up at a rally without parental consent.

But I bet a toddler's right to carry a bazooka is protected by the 2nd Amendment.

 

[MinnesotaNorthStar]

But I bet a toddler's right to carry a bazooka is protected by the 2nd Amendment.

Of course it is...playground's rough these days...

 

[Bakunin]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Kids have no first amendment rights? That's a frightening thought.

I think it cuts down greatly on the back-talk.

 

[Kepler]

Re: The Power of the SCOTUS II: "Release the Kagan!"

I think it cuts down greatly on the back-talk.

Originalist.

 

[Priceless]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Last week, the New York Times reported that Justice Clarence Thomas received a series of lavish gifts and other favors from a leading Republican donor, including $500,000 to allow Thomas’s wife to start a Tea Party group and a $19,000 Bible that belonged to Frederick Douglass. Additionally, Thomas received a gift worth $15,000 from the American Enterprise Institute, a conservative think tank that often files briefs in Justice Thomas’ Court. Justice Thomas did not recuse himself from at least three cases where AEI filed a brief.

The House GOP immediately began an investigation...of Elena Kagan.