Big Monday 2013

Today is the last scheduled day for decisions and opinions scheduled by the Supreme Court. In the comments to this post, I’ll be glossing the Voting Rights Act, affirmative action, and same-sex marriage cases.* And, of course, setting up a forum for your comments on them too.

* Many people do not expect the affirmative action case to be announced today.

UPDATE: As of Monday, there was no Voting Rights Act or same-sex marriage decision. Here are the decisions that were announced Monday:

We’re told to expect more opinions Tuesday and another day this week, but it’s not necessarily the case that we’ll get decisions in the other three marquee cases, Perry v. Brown (California’s Proposition 8); Shelby County v. Holder (Voting Rights Act); and United States v. Windsor (DOMA). Links in previous sentence go to lower court opinions which are up for review.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. First up is Vance v. Ball State. This case is about public employer responsibility for subordinate actions in Title VII cases.

    • In order for an employer to be held liable for a subordinate’s unlawful employment action, it must have the power to effectively do something about the subordinate’s actions. It appears that SCOTUS has defined “supervisor” narrowly, and so this will be a pro-employer ruling.

      • I think that was the other big side of Ashcroft v. Iqbal that doesn’t see nearly so much ink; that supervisory liability was basically gutted.
        And I would say that a lot of that goes back to the immunity of municipalities for punitive damages.

    • Majority by Alito, joined by Roberts, Scalia, Kennedy, and Thomas.

      Dissent by Ginsburg, joined by Breyer, Sotomayor, and Kagan.

  2. Next is Mutual Pharmaceuticals v. Bartlett. This case is about whether a state law products liability claim concerning drugs can proceed. The Court has announced that no, federal law (which tends to favor manufacturers) pre-empts state law actions.

    • If I recall correctly, the facts of this case had a large pharma company entering into a contract with another manufacturer to pay that manufacturer money to stop making generic versions of the other company’s name-brand drugs. Perhaps I’m thinking of another case, though, because that would reach anti-competition regulation laws rather than products liability.

      • I think you’re thinking of another case. According the decision, it’s about an adverse drug reaction.

        • Yes, I was thinking of another case. It’s a bit chaotic to liveblog while the opinions are being handed down. Mutual Pharmaceuticals appears to relate strictly to the relationship between Federal law and state law on products liability cases. I got a bit mixed up given that this case and the other one I was thinking of both include generic equivalents to the name-brand drugs.

          What we learn from this case is that the Federal standards for disclosures and warnings of the risks inherent in a drug are uniform. Individual states may not set their own, higher standards. (Inevitably, people ask, can the states set lower standards? No; Federal law at minimum sets a floor. In this case, it also sets a ceiling.)

          • No slight on you for mixing it up; I didn’t even know the case was coming out today before I read this.

    • Majority by Alito, joined by Roberts, Scalia, Kennedy, and Thomas.

      Dissent #1 by Breyer, joined by Kagan.

      Dissent #2 by Sotomayor, joined by Ginsburg.

          • I’m shocked. With the current composition of the Court, employees and consumers are generally screwed.

          • Alito in particular is pretty awful on civil liberties but has never met a corporate excess he won’t defend.

  3. Third out of the box is U.S. v. Kebodoeux. A big one for our friends at CATO. This one relates to a Federal sex offender registry.

    • At first blush, this looks like a win for the government — Congress can indeed require what appears to be lifelong registration for a convicted sex offender, even when the offender’s move from one place to another is only intrastate (San Antonio to El Paso in this defendant’s case), under the Necessary and Proper Clause.

      This one interests me and I’ll be looking at it closer later today.

    • Majority: Breyer, joined by Kennedy, Ginsburg, Sotomayor, and Kagan.

      Concurrence in judgment only: Roberts and Alito.

      Dissent #1: Scalia.

      Dissent #2: Thomas, joined in party by Scalia.

  4. Affirmative Action! Fisher v. University of Texas. Everyone who watches the Court has heard of this one.

    • Majority: Kennedy, joined by Roberts, Scalia, Thomas, Breyer, Alito, and Sotomayor.

      Concurrence #1: Scalia.

      Concurrence #2: Thomas.

      Dissent: Ginsburg.

      Recused: Kagan.

    • Can you explain what the decision was and ultimate outcome will be?

    • They punted. Vacated and remanded to the Fifth Circuit and the district court for a do-over, using strict scrutiny.

    • Amy Howe at SCOTUSblog says the money quote is “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

    • Also, with this case and Myriad Genetics earlier this month, Scalia’s concurring opinions are getting shorter and weirder.

  5. Last opinion of the day: UT Southwestern v. Nassar, a Title VII retaliation case. This means that the same-sex marriage and voting rights act cases will not be announced today.

  6. For UT Southwestern v. Nassar:

    Majority: Kennedy, joined by Roberts, Scalia, Thomas, and Alito.

    Dissent: Ginsburg, joined by Breyer, Sotomayor, and Kagan.

    • Given that majority, it’s hardly a surprise that this is another pro-employer decision. First gloss is that there’s now a high burden for a plaintiff to prove that an employer would not have taken the adverse employment action but for the plaintiff’s making of (or, presumably, cooperation with) a different Title VII complaint.

  7. Balancing between professional demands on my time today and the pleasure of working through the court opinions, I’ll probably only look at Fisher and Kebodoeux further. Of course, that doesn’t mean you can’t dig in to the other cases!

  8. We also have a per curium opinion in Ryan v. Schad, a death penalty case. The Court didn’t show any love to the defendant, vacating a stay of execution issued by the Ninth Circuit and sending the case back to Arizona by way of the Ninth Circuit, which was ordered to issue a mandate allowing the execution to proceed.

  9. Burt, what is the value of dissenting opinions, beyond dissent?

    Do they ever hold sway in future discussions on the court or serve as grounds for changing course?

    (I do see that they’re often used to signal Congress about shortcomings in the Congress’s work.)

    • And I forgot:

      Thank you for taking the time to do this.

      • Its my pleasure. I wish I could do this for the remaining six cases, which apparently will be announced either tomorrow (Tuesday 6/25/13) and one other day this week (likely but not necessarily Wednesday 6/26/13). But alas, I have court and depositions scheduled for myself, and will not be able to dig in as soon as the announcements are made. Ret assured that I’ll be on them, as soon as I can be.

    • The dissent is to explain why the Justice did not vote with the majority. Since a majority opinion is binding precedent, in the sense of announcing what the law is a dissent does not matter. And a Justice who votes against the majority opinion does not have a requirement to write a dissent. But most Justices who dissent opt to do so.

      The reason is that the Justice hopes to explain why the majority blew the call. At some later date, the Court will almost certainly be presented with an opportunity to revisit an issue before it, and the dissent provides substantial scholarship and research explaining why the majority’s decision should be modified, narrowed, or overruled.

        • Zic,

          They can, sorta, have sway in future decisions. A dissent may provide the touchstone for a future case that overrules the decision the dissent was against. E.g., Brown v. Board of Education explicitly referenced the dissent in Plessy v. Ferguson, the case that created the separate but equal rule. But of course the Court would have reached the same result in Brown even if there had been no dissent in Plessy.* And ocasionally you’ll see a justice make reference to a dissent in an opinion of the Court when they’re modifying a rule they previously devised, even if they’re not overturning an old case.

          Mostly it provides a sort of paper trail for legal arguments, so that a justice can show s/he’s not just making up a new idea, but that it’s been out there for a while and, although not previously adopted, taken seriously.

          Another good example is Gideon v. Wainwright, in which the Court ruled that all criminal defendants had the right to counsel, even if the state had to provide it. For years Hugo Black had been arguing that in both dissents and concurring opinions, while the majority stuck to just defining an increasing number of special circumstances that made a fair trial unlikely, in which the state had to provide counsel. Black had the privilege to write and announce the decision in which his dissent became the law.

    • Influncing lawmakers, urging Congress to overturn the Supreme Court (this has happened). Today’s dissent can be tomorrow’s majority. This was true of many dissents made by Hugo Black and William Douglas during their tenure on the court. They started as being among the lone-liberals but eventually became a majority thanks to appointments from FDR, Truman, Eisenhower, Kennedy, and LBJ.

      In reverse, Rehinquist was often noted as a lone dissenter during his early years on the court but Nixon eventually got his majority under Reagan and Bush I.

    • Yeah, I’m really waiting for the same-sex marriage decisions — haven’t envied Roberts’ job of trying to get consistent decisions pieced together on those. I finally gave up trying to use logic on what they would decide if they started from constitutional principles and fell back on my usual rule-of-thumb for Roberts: the man appears to have never seen a case where he won’t rule in favor of the big corporate interests. I’m guessing the corporate interest is consistent benefits for spouses across the country, and that Roberts sides with the liberals on a narrow ruling that states (and the feds, and businesses) have to honor same-sex civil unions in terms of benefits and privileges. He could go the other way, but I also think he keeps his ear to the ground in terms of public opinion and won’t want to be part of a majority opinion that’s clearly going to be at odds with the majority of the public within a few more years.

        • Which part makes you paranoid? That he favors corporate interests, or that he pays attention to trends in public opinion? Or something else? The decision on the PPACA was instructive, I think. It obviously serves the interests of the big insurers, big hospital chains, and big pharma. Less directly, it sets the stage for big corps in general to get out of the employer-tied health insurance game. Add to that a steadily increasing segment of the population that believed something had to be done about health insurance (I have said before that I believe if the Dems had waited until 2015, support for changes would have been broader and they could have gotten a much better law), and you get the pretty twisted reasoning in that case.

          If he were not the chief justice, I think he would take a very different approach to some of these cases. But it seems to matter to him that the decisions get described as “the Roberts’ Court decision on…” and is not willing to simply follow the party line on various subjects.

  10. As for the voting rights act and same-sex marriage cases, silence today. But the Court will apparently be back in session tomorrow and at least one more day after that, which is a bit unusual for them.

    I wonder why the delay in these other three cases — inability to form a majority? If they can’t get to five, that is a problem because the authority of a plurality opinion is limited to its holding only.

    • If they can’t get to five, that is a problem because the authority of a plurality opinion is limited to its holding only.


      • Let’s say you’ve got this breakdown in voting: 3 Justices vote to affirm the ruling below, for reason “A.” 2 Justices vote to affirm the ruling below, for reason “B.” 2 Justices vote to overrule the ruling below, for reason “C.” And 2 Justices vote to overrule the ruling below, for reason D.”

        This is a 3-2-2-2 split, not a 5-4 ruling. We can say that the ruling below was correct. We cannot say why — at least, not easily. Maybe the court below was correct because of “A.” But “A” did not command five votes on the Court. Same for “B.” We might look hard for intellectual overlap between “A” and “B” but chances are pretty good that there isn’t much of that — the Justices looked hard at “A” and “B” themselves.

        So the only law announced by the Court is affirming the ruling below. We don’t get a lot of guidance about what the law is based on a 3-2-2-2 split, because no single line of reasoning commanded a majority.

    • I suspect that they want the most controversial decisions to be released all at once and then they can go into hiding over the summer and not deal with blowback. I wonder if they are going to give every side something to be angry about. Conservatives will get what they want on VRA but not DOMA and Prop 8. Liberals will get what they want on Prop 8 and DOMA but not VRA.

      Even more interesting (and possibly) horrible would be doing the reverse. Upholding DOMA and Prop 8 for conservatives but also upholding VRA for liberal.

      • A conservative opinion on VRA will deny the explicit wording of the 15th, but still claim to be “originalism”.

        • That may be, but there appears to be a trend in the Supreme Court (and the D.C. Circuit Court as well) in the direction of finding things that the federal government may not impose on the states. I can see this court holding that requirements to seek approval for changes in voting laws and districting in advance, with no apparent end to that process, as one of those things. Yeah, I know that the VRA only runs for another 25 years. Look at the situation with copyrights, though; the Court has pretty much held that “limited term” can be arbitrarily long, so long as the law includes a finite value.

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