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

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