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March 29, 2013

Today, the Supreme Court will meet in conference to decide whether to hear Lepak v. City of Irving, a very important one-person, one vote case that raises the fundamental question whether our constitutional system ensures equal representation for citizens and non-citizens alike.  The issue in Lepak is whether the Constitution permits state and local governments to draw equally-populated districts to comply with the requirement of one person, one vote using total population figures, counting citizens and noncitizens alike.   In Lepak, plaintiffs, represented by the law firm of Wiley Rein, backed by Edward Blum’s Project of Fair Representation, are asking the Supreme Court to hold that the Constitution requires state and local governments to draw districts based on voter population, not total population.  The plaintiffs in Lepak argue that the districts drawn by the City of Irving, Texas are unconstitutional under the Court’s one-person, one-vote rule because the city counted all of the city’s residents, citizens and non-citizens alike, in drawing equally-populous districts.   Claiming that growing immigrant populations are undercutting the rights of voters, particular in states like Texas, Lepak’s Petition argues that non-citizens have to be excluded from the constitutional calculus.  If the Court agrees, it would be a radical change in the law that would turn on its head the basic ideal of representation for all persons at the very heart of our Constitution.

March 27, 2013

Reposted from David Gans' 2009 post:

On March 27, 1876...the Supreme Court decided United States v. Cruikshank, one of the worst Supreme Court decisions in American history. The Court annulled the convictions of three men growing out of a massacre in Colfax, Louisiana, in which a white mob killed almost 300 African Americans who were defending a local courthouse, many after the freedmen had surrendered.

March 27, 2013

While most of the Supreme Court universe is (rightly) focused on Perry and Windsor, the Supreme Court divided deeply over a class action case decided this morning – one that merits a closer look than it’s likely to receive from most commentators – Comcast Corp. v. Behrend.

Behrend involves a class action brought by Comcast customers for various antitrust violations in the Philadelphia market – violations that allegedly led to higher prices.  In the end, the Court divided five-to-four along ideological lines – with Justice Scalia writing the majority opinion.



March 26, 2013

One of the liveliest exchanges during this morning's oral argument in the challenge to the constitutionality of California's Proposition 8, which changed the state's Constitution to define marriage as only between a man and a woman, came when Justice Antonin Scalia aggressively questioned the challengers' lawyer, Ted Olson, about when such discriminatory laws "became unconstitutional."

JUSTICE SCALIA: I'm curious, when -- when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker [v. Nelson], where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?

March 22, 2013

With states seeking flexibility to implement Obamacare as they see fit, the Supreme Court sent the states an important message in its ruling on March 20 in Wos v. E.M.A. that states’ implementation of federal health care programs must comply with the requirements of federal Medicaid law.  As millions more are expected to be added in 2014 to the more than 62 million Americans already covered by the Medicaid program, the Court’s decision this past Wednesday could not be more timely in clarifying that states are accountable in the courts should they flout the federal statute’s protections for low-income and disabled beneficiaries.

March 18, 2013

In a spirited oral argument this morning, the Justices debated whether Arizona may require individuals to submit satisfactory documentary proof of citizenship in order to register to vote in federal elections.  The question before the Court in Arizona v.

March 14, 2013

Today, the Senate Judiciary Committee was scheduled to vote on the nomination of Jane Kelly to the United States Court of Appeals for the Eighth Circuit.  Nonetheless, even though Kelly is a highly qualified, uncontroversial nominee and her confirmation hearing on February 27 was a

March 13, 2013

Writing in the New York Times, Adam Liptak takes a close look at the way the nation’s smaller states often receive more favorable treatment than do the bigger states that make up our nation.   As Liptak observes, when it comes to federal largesse, small states often receive an outsized share of federal funds, eve

March 11, 2013

With Justice Antonin Scalia’s controversial statement that the Voting Rights Act represents the “perpetuation of racial entitlement” continuing to reverberate across the media landscape, it’s hard to believe that the Supreme Court is poised to hear another seminal challenge to a federal law protecting Americans’ right to vote.