I’m a little late getting these posted. The last week of arguments for the term was dominated by Wednesday’s Trump v. Hawaii, which I’ve already posted, but the justices also heard cases on Texas gerrymandering, Abbott v. Perez, and on the appointment of administrative law judges, Lucia v. SEC, as well as three others one of which saw Deputy Attorney General Rosenstein at the lectern.
The Court also announced opinions in three cases on Tuesday. In a departure from usual practice of having the more junior justice announce the first opinion, Justice Thomas announced Oil States Energy Services followed by Justice Gorsuch with the opinion in SAS Institute. It turns out that Gorsuch’s opinion referred to Thomas’ thus the need to go out of order; both are patent cases. And finally on Tuesday, Justice Kennedy delivered his first opinion of the term in an Alien Torts Act case, Jesner v. Arab Bank.
The justices today heard arguments about whether an indigent defendant is entitled to truly independent expert assistance ( McWilliams v. Dunn ), and on the subject of ineffective assistance of counsel ( Davila v. Davis ).
It’s been a strange Supreme Court term, like a meal that doesn’t satisfy. With only eight members on the bench after Justice Scalia’s death the odds were good that the last blockbuster opinion of the term would fall to a tie.
But, once again, Justice Kennedy was the fulcrum that allowed the Court to do some heavy lifting. In a 5-4 opinion authored by Justice Breyer in Whole Woman’s Health v. Hellerstedt the lie was exposed that Texas’ restrictive abortion clinic regulations were enacted to protect women’s health.
That left the dissenters arguing only on procedural grounds that Whole Woman’s Health had lost an earlier round and should never have got another bite of the apple.
Oh, and there was also the unanimous opinion in McDonnell v. United States. It’s perfectly okay now, through gifts and cash, to purchase access to politicians, even if it stinks.
. . . and Lawful Permanent Residents, or DAPA, was before the Supreme Court today.
A very large crowd supporting the president’s immigration policy was gathered in front of the Court’s plaza. Some had been there since Friday hoping to get a seat inside the courtroom for the arguments in United States v. Texas. And the courtroom was in fact packed with spectators full of anticipation, hoping to get an inkling as to which way the Justices may rule.
But at the end of the hour and half of mostly technical argument there was little to glean. You an read about it here.
On the first day of what promises to be a steamy week in Washington, at least outside the Supreme Court building, the Court announced its opinion in a long awaited affirmative action case, Fisher v. University of Texas. When the case was argued back in October it appeared that the University’s use of race as an admissions factor might be struck down.Instead, in an opinion by Justice Kennedy, the Court said such programs must meet the test of “strict scrutiny” as well as being“narrowly tailored”.
Surprisingly, for a case argued at the beginning of the term, there was but one dissenter in the 7-1 decision (Justice Kagan took no part), Justice Ginsburg.
“The Court rightly declines to cast off the equal protection framework …”, writes Ginsburg. “Yet it stops short of reaching the conclusion that (it) warrants.”
Justice Alito took a sip from his coffee cup.