SBM Blog

Two Interesting Takedowns Of Recent U.S. Supreme Court Decisions

Commentary on U.S. Supreme Court decisions is ubiquitous and criticism of U.S. Supreme Court decisions is not hard to come. As always, SBM Blog is necessarily agnostic on the wisdom of any court or any of particular decision but we feel compelled to take note of two commentaries on recent court decisions for their striking audacity. The first is by the redoubtable Erwin Chemerinsky, dean of the U/C Irvine School of Law, who says that the 9-0 decision McBurney v. Young, holding that it is constitutional for Virginia to let only Virginia citizens invoke its freedom of information act, "makes no sense." The second is a commentary in Salon about the Court recent gene patenting decision, Association for Molecular Pathology v. Myriad Genetics. The title tells the story -- "The Supreme Court’s Sketchy Science: Their BRCA patent ruling reads like an earnest seventh grader’s book report." Here's an example of the tone:

The court’s strain to understand this science is manifest in the overly respectful, declarative language used in the ruling. Statements such as “the study of genetics can lead to valuable medical breakthroughs” are simply adorable.

Frankly I'd like to see its author attempt to write a U.S. Supreme Court decision. I'm guessing that the attempt would read like the report of an earnest, clever Ph.D. candidate in the department of chemistry and chemical biology at Harvard University. Which he is.

Meanwhile, if you want some quick takes from patent lawyers on the significance of Myriad, go to PatentlyO, "Twenty Thoughts on the Importance of Myriad."

Justice Stevens Turns The Other Cheek On DNA Sampling

No problem. In a wide-ranging speech last week to the American Constitution Society that less controversially takes on some Ku Klux Klan-favoring jurisprudence, former Justice John Paul Stevens says he thinks he would have voted with the majority in Maryland v. King, for four reasons, including this one:

[T]he proven accuracy of DNA samples in both establishing guilt and exonerating the innocent who have been mistakenly convicted or accused, favors greater rather than lesser use of DNA evidence. Rules that unnecessarily preclude the use of such evidence may impede the search for truth without providing any meaningful protection for privacy interests. In the Maryland case, for example, the only interest in privacy that was implicated was the defendant’s interest in not being convicted of a serious crime that he in fact committed.

Andrew Cohen at The Atlantic says he's "dead wrong."

SCOTUSblog's Plan For Blockbuster End of Term Cases - The Michigan Connection

To handle its much anticipated coverage of the three major cases awaiting decision in the U.S. Supreme Court -- the same-sex marriage decisions, the affirmative action college admission case decision, and the voting rights act decision -- SCOTUSblog has arranged three online "snap" symposia to go live after the  decisions are announced. Michigan lawyers are featured in two of them:

Same-sex marriage   Helen Alvare, George Mason University School of Law  Randy Barnett, Georgetown University Law Center Ÿ William Duncan, Marriage Family Law Foundation Ÿ John Eastman, Chapman University School of Law Ÿ Suzanne Goldberg, Columbia Law School Ÿ Eric Restuccia and Aaron Lindstrom, Michigan Solicitor General’s Office Ÿ Steve Sanders, University of Michigan Law School Ÿ Paul Smith, Jenner & Block  Ÿ Larry Tribe, Harvard Law School

Affirmative-action  Vik Amar, UC Davis School of Law Ÿ David Bernstein, George Mason University Law School (visiting professor, U of M Law School) Ÿ Elise Bodie, NAACP Legal Defense Fund Ÿ Roger Clegg, Center for Equal Opportunity Ÿ Melissa Hart, Colorado Law Ÿ Olati Johnson, Columbia Law School Ÿ Rick Sander, UCLA Law School Ÿ Abigail Thernstrom, U.S. Commission on Civil Rights

Voting Rights Act  Rick Hasen, University of California Irvine Law School Ÿ Jeffery Harris, Bancroft PLLC Ÿ Ellen Katz, University of Michigan Law School Ÿ John Neiman, Solicitor General of Alabama Ÿ Rick Pildes, New York University Law School (taught at U of M Law School) Ÿ Ilya Shapiro, Cato Institute

Test Your Memory: Most Important Non-Famous Supreme Court Case Of All Time

The Atlantic asks 13 prominent  legal scholars "What's the most important Supreme Court case no one's ever heard of?" Two things. First, condolences to all of you who consider yourselves prominent legal scholars who weren't asked. Feel free to use this comment section to provide your own answer.  Second, SBM's readership is very sophisticated and we're sure you've heard of many of these cases, and what's more may even remember a few:

• Schenck v. United States (1919)
• Wickard v. Filburn (1942)
• First National Bank of Boston v. Bellotti (1978)
• Buckley v. Valeo (1976)
• United States v. Munsingwear, a k a “the underwear case” (1950)
• Michael H. v. Gerald D. (1989)
• [A case the Court never took]* (1793)
• Bolling v. Sharpe (1954)
• Strickland v. Washington (1984)
• Frothingham v. Mellon (1923)
• Dartmouth College v. Woodward (1819)
• McCabe v. Atchison, Topeka & Santa Fe Railway Co. (1914)
• Elk v. Wilkins (1884)

*Theodore Olson showing off.

An Online Symposium On The Pending Voting Rights Act Decision

The pending decision in Shelby County v. Holder challenging the Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act was the subject of a Yale Law Journal Online Symposium, whose essays are summarized in a Balkinization post by University of Texas Law prof Joseph Fishkin:

— Ellen Katz starts things off with a question: will the Court conclude that Section 5 is “A Cure Worse Than the Disease?”  She argues that that would be a mistake, and that reliance on this analogy is dangerous: it “threatens to leave the underlying condition unaddressed and Congress without the power to address it.”  She argues that the aspects of Section 5 to which some Justices object are really a matter of statutory interpretation rather than the statute itself, and that the right solution here ought to be reinterpretation, not constitutional invalidation.

— Looking ahead, Guy-Uriel Charles and Luis Fuentes-Rohwer argue that it’s time to start “Mapping a Post-Shelby County Contingency Strategy.”  The authors imagine a new regime in which what they call institutional intermediaries—public-interest groups, advocacy organizations, even political parties—could potentially take over some important roles that Section 5 plays today.  They describe this “emerging ecosystem” and imagine changes that could make it more effective.

— Justin Levitt’s essay considers “Section 5 as Simulacrum”: the imaginary statute the Court appears poised to strike down—a sort of “editorial cartoon” of the statute—as distinct from the statute that actually exists. He maps out a number of important dimensions on which the two differ, from the machinery of the coverage rules to the role that “racial essentialism and racial entitlements” play in what Section 5 permits or requires.

— My own essay for the symposium focuses on “The Dignity of the South”: the striking claim by the Shelby County plaintiffs that singling out the covered (mostly Southern) states for special scrutiny is constitutionally suspect because it violates those states’ “equal dignity.”  I argue that the best way to understand this claim—which the Civil War ought to have foreclosed—is in the context of the long and surprisingly robust tradition of Southern and ex-Confederate arguments that aim to restore the lost dignity of the South.  Along the way the essay discusses Chief Justice Rehnquist the amateur historian, John C. Calhoun in a toga, and zombies. (Ok, not really, but sort of.)

"Exhibit A for a Major Shift: Justices’ Gay Clerks"

Adam Liptak's lead in "Exhibit A for a Major Shift: Justices’ Gay Clerks," promises a good story:

As Justice Lewis F. Powell Jr. was struggling with how to cast the decisive vote in a 1986 Supreme Court case [Bowers v. Hardwick] that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual.

In truth, one of his four law clerks that term was gay.

And, Liptak delivers. Regardless of how you feel about what the outcome should be in the same-sex marriage cases pending before the Court, Hollingsworth v. Perry and United States v. Windsor, you'll want to read this piece.

Never Again Embarrass Yourself Before The Supreme Court

So you say you're arguing a case before the U.S. Supreme Court and you just have no idea how to pronounce Cousin v. Labatut? Or, Creede & Cripple Creek Mining & Milling Co. v. Uinta Tunnel Mining Transportation Co.? Help is now at hand -- The Pronouncing Dictionary of the Supreme Court of the United States, complete with audio. Now, all you have to do is master your facts and arguments.

Answers: koo-za v. lah-bah-too; yoo-in-tə.

"The Fourth Amendment Makes For Strange Bedfellows"

The bedfellows comment is from SCOTUSblog's live blogging today on Maryland v. King, commenting on the dissent line-up of Scalia, Ginsburg, Sotomayor, and Kagan. Justice Scalia felt so strongly that the government shouldn't be cheek-swabbing suspects without a warrant that he read his dissent from the bench. From his dissent:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the "identity" of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

Bloggers have also taken note of this coy Scalia footnote:

Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).

 

Breaking: U.S. Supreme Court Says Pre-Conviction DNA Samples Okay

Reporting on today's 5-4 opinion authored by Justice Kennedy in Maryland v. King:

• Supreme Court Says Police Can Take DNA From Arrestee Without Warrant, Washington Post
• Routine DNA Testing After Arrest Upheld by Top U.S. Court, Bloomberg
• Supreme Court Upholds Warrantless Collection of DNA, NPR
• Court: Police Can Take DNA Swabs From Arrestees, Boston.com
• Supreme Court OKs DNA Swab in Serious Arrests, USA Today

Justice Alito's Son's Clerkship Sparks Ethics Discussion

If you are a Supreme Court justice and your child is clerking for a federal appellate judge, will you be inclined to favor the opinions of that judge, especially ones your child has worked on? The hiring of Justice Alito's son Philip, a Duke Law 3L, by D.C. Circuit judge Brett Kavanaugh has triggered the question. According to a story in the National Law Journal (sub. req.), the justices have a policy concerning recusal in cases involving their children's law firms, but do not have a policy concerning clerkships. The two ethics gurus consulted by NLJ, Stephen Gillers and Amanda Frost, both say that recusal is not required.  Since his appointment to the D.C. circuit in 2006 Judge Kavanaugh, a former clerk to Justice Kennedy, has acquired a reputation as a "feeder judge" to U.S. Supreme Court clerkships. But the NLJ story points out that a path to a Supreme Court clerkship is foreclosed to the young Alito by a federal anti-nepotism law.