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February 27, 2013

A cross-post of Elizabeth Wydra's post-argument commentary for SCOTUS Blog.

Predictions based on oral argument are a risky business, but after this morning it is fairly safe to say that the outcome of Shelby County will hinge on how the Justices answer the question Justice Elena Kagan asked toward the end of argument: who gets to decide when the problem of racial discrimination in voting is solved? Because I think most Americans would recognize the reality that voting discrimination is still a problem, I would rephrase slightly: who gets to decide how best to go about solving the problem of voting discrimination?  As Solicitor General Don Verrilli repeatedly emphasized this morning, the Constitution expressly grants Congress the power to enforce the constitutional guarantee of the right to vote free from racial discrimination.  Not the courts.  Not Shelby County, Alabama, of all places.   Not even Justice Kennedy.

February 27, 2013

While both big businesses and small investors exhorted the Court to resolve the dispute in Amgen v. Connecticut Retirement Plans and Trust Funds based on policy preferences, the Court hewed instead to text and history in its 6-3 ruling on February 27, allowing the securities fraud case to proceed as a class action.

February 26, 2013

In its 5-4 decision today in Clapper v. Amnesty International, the Supreme Court’s conservative majority yet again denied plaintiffs access to the federal courts based on a procedural bar.

February 26, 2013

Yesterday evening, by an overwhelmingly bipartisan, unanimous vote of 93-0, the Senate confirmed Robert Bacharach to the United States Court of Appeals for the Tenth Circuit.  That’s the good news.  The bad news is that Bacharach waited 263 days for this vote from the time he was favorably reported out of the Judiciary Committee back in June 2012 with only a single vote in opposition.   Why such a long wait?

February 19, 2013

Among other orders issued this morning, the Supreme Court announced it has unfortunately denied certiorari in Miller v. Louisiana, an case concerning the importance of jury unanimity—a right that the Founders  understood to be an essential bulwark of liberty protected by the Sixth Amendment. Read more


February 15, 2013

As CAC’s Si Lazarus has chronicled in his recent piece in The New Republic, President Obama has been on something of a tear lately in terms of rooting his agenda for a second term in the Constitution’s text and history.

He did it again yesterday in responding to the first-in-history filibuster of a Secretary of Defense nominee, in this case, Chuck Hagel.   Read more.


February 14, 2013

Say, a cop pulls you over for going 30 mph in a 25 zone, and gives you a $100 speeding ticket. You’re annoyed. But would you take the cop to traffic court, to argue that he has no legal right to single you out when other drivers routinely exceed 35 or even 40?  Not likely.  “Other people are doing it too,” won’t get you very far.

But, remarkably, that is the core contention you will hear, if you chance by the United States Supreme Court on February 27.  That morning, lawyers representing Shelby County, Alabama, will urge the justices to strike a key provision of the 1965 Voting Rights Act, which proved instrumental in blocking measures aimed at marginalizing minority votes in the 2012 elections.   Read more...


February 14, 2013

In a prior post, we noted the deafening silence from conservative constitutional scholars when it comes to the constitutional basis for Shelby County’s challenge to Section 5 of the Voting Rights Act.

Just as notable is this rather ferocious amicus brief, which features Dick Thornburgh, Attorney General under Presidents Ronald Reagan and George H.W. Bush as its lead signatory.  Not only does Thornburgh’s brief strongly support the constitutionality of the Voting Rights Act, but it also delivers a gut punch (care of Thornburgh and a distinguished, bipartisan group of former Department of Justice officials) to a brief filed on behalf of Shelby County by a very partisan group of notable conservatives, including Hans von Spakovsky, Chuck Cooper, and Roger Clegg.    Read more



February 12, 2013

On February 12, 2004, upon the direction of Mayor Gavin Newsom, the City of San Francisco began offering marriage licenses to same-sex couples.  Although the California Supreme Court later held that these marriages were prohibited by state law, the City’s actions touched off a battle over marriage equality in the state that continues to this day.  In fact, the U.S. Supreme Court will take up the issue of marriage equality in the California case of Hollingsworth v. Perry on March 26, 2013.  Read more



February 12, 2013

Simon Lazarus’ new piece, “Obama is Wrapping Himself in the Constitution. Finally,” which appeared in The New Republic last week, has stirred conversation over at ACS Blog and Josh Blackman’s Blog.  Regarding the latter, Si notes: