Despite a large list of argued cases pending decision, the Court decides just two of them today—neither of them Dobbs.

Continue Reading Court Holds That Judges Can’t Invent Rules Governing Arbitration Waiver and Makes It Harder for Prisoners to Show Ineffective Assistance: SCOTUS Today

It is fair, I think, to say that a substantial majority of those who heard the argument in the case of Federal Election Commission v. Ted Cruz for Senate doubted that, irrespective of whatever they might think of Ted Cruz, it was highly likely that he and his campaign organization would prevail in challenging the federal campaign finance law limitation on the use of post-election funds to repay a candidate’s personal loans as violative of the First Amendment rights of candidates who want to make expenditures on behalf of their own candidacy through personal loans. But, by a six-three division between the Court’s judicial conservatives and liberals, that is precisely what has occurred. Those who criticize the Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), likely will feel much the same way about the Cruz case.

Continue Reading Divided Court Supports Ted Cruz’s Campaign Debt Reimbursement but Denies Would-Be Citizen Chance to Correct Bureaucratic Error: SCOTUS Today

Further evidencing an ongoing shift from more absolutist thinking about the intersection between the First Amendment’s Establishment Clause and an individual’s or group’s right of free speech, we find this morning’s unanimous decision in Shurtleff v. Boston in which the Court, reversing the First Circuit, held that the city of Boston violated the free speech clause of the First Amendment when it refused to let a group fly a Christian flag outside city hall. As Justice Breyer explained, in what will be among the last of his opinions:

Continue Reading When Government Does Not Speak, It May Not Discriminate on the Basis of Religion as to Access to a Public Facility: SCOTUS Today

Cummings v. Premier Rehab Keller, P.L.L.C. is a very important case for employment and benefits practitioners. The Court, divided 6-3 along conservative/liberal lines, has held that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act. In fact, the case affects potential results under four statutes that Congress has enacted pursuant to its Spending Clause authority that prohibit recipients of federal funds from discriminating with respect to matters including race, color, national origin, sex, disability, or age. See Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116. The Court previously held that victims of intentional violations of these statutes may bring private lawsuits seeking to recover, among other things, compensatory damages. Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992). Today, the Court holds that the damages available under these statutes cannot include compensation for emotional suffering.

Continue Reading The Court Rules Out Emotional Distress Damages Under Anti-Discrimination Statutes: SCOTUS Today

Auguring a flood of opinions in the remaining weeks of the term, the Supreme Court decided five cases today. Some of them offer support for the media/popular equation of a political party background with jurisprudential outcomes, but others clearly do not. Interestingly, several cases decided by wide margins also, through concurrences and dissents, lay down markers that could affect the outcomes of future cases.

Continue Reading Supreme Court Decides Five Cases, Some of Which Lay Down Markers That Could Impact Future Decisions: SCOTUS Today

There has been a good deal of recent attention given to the Supreme Court’s so-called “shadow docket,” a term that refers generally to the Court’s (conservative majority’s) issuing brief orders and unsigned opinions resolving procedural motions in a way that effectively disposes of cases, but without their having been fully briefed and argued.

Continue Reading Are the Shadows Lifting?: SCOTUS Today

I write this from London on the eve of the announcement that the nomination of Judge Ketanji Brown Jackson to succeed Justice Breyer is about to go to the full Senate for confirmation. Those who follow my writings will know that I am among a group of right-of-center former public officials in Republican administrations who are on record as supporting this nomination of an experienced and well-qualified federal judge.

Continue Reading Two Trump Appointees Surprise Those Who Expect Conservative Lockstep: SCOTUS Today

The Court has decided the latest in a series of important cases interpreting the reach of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 1 et seq.

On March 31, in Badgerow v. Walters, by an 8-1 majority (opinion written by Justice Kagan, and a lone dissent by Justice Breyer), the Court reversed an order of the Fifth Circuit and held that the federal courts do not have authority to “look through” an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.

Continue Reading Court Limits Federal Jurisdiction Over Arbitration Cases, Denies Certiorari in Private Non-Delegation Doctrine Case: SCOTUS Today

The Court issued opinions in two cases today, both interesting in their particular factual circumstances, but neither controversial, with one unanimously decided and the other with a lone dissent.

Continue Reading The Court Upholds a College Board’s Censure of One of Its Members, and Delays an Execution on Religious Grounds: SCOTUS Today

In an unsigned per curiam order, the Court today reversed a decision of the Supreme Court of Wisconsin that, in a dispute about the assignment of the number of so-called minority-majority districts, chose an electoral map drawn by the governor over several other such proposals. Wisconsin Legislature v. Wisconsin Election Commission.
Continue Reading Wisconsin Court’s Decision in Alleged Gerrymandering Case Is Reversed: SCOTUS Today