by KenActually, I suppose by and large it is pretty easy being a FRWS Supreme Court justice -- under normal circumstances, anyway. You show up when they tell you, and decide which of the cases on offer you want to have the Court take on in the next term, and then you have to listen to a certain amount of yammering about the cases chosen for this term and even ask some questions just to show how sharp and engaged you are (unless you're Justice Thomas, of course), and eventually you may get stuck writing the opinion, but then, isn't that what you have clerks for?All the while you know, and we know, that if they's just put in some sort of simple electronic-voting system, then as soon as the docket is assembled you could register your votes and get in some good fishing or maybe napping time.Which is what made today's minimal news-making day such an interesting one. (For a quick summary, see Rachel Weiner's washingtonpost.com "What happened in the Supreme Court today.") Everybody is waiting for the rulings on the term's Big Cases, and in fairness there's no reason to be surprised that we're still waiting. Didn't we all expect that they were going to be saved for the bitter end?Actually, the Big Nine did produce a ruling of sorts on one of the marquee items: the University of Texas affirmative action case. And what they ruled is that they weren't going to rule, really. Instead the case was sent back to the lower court for a closer and more critical look. As ScotusBlog's "Plain English" specialist Amy Howe explains:
Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.
The vote was 7-1, with the seven affirmative votes all over the place (Justices Scalia and Thomas, for example, made clear that if anybody had asked, they would gladly have axed affirmative action altogether), and only Justice Ginsburg saying, in so many words, "Bullshit!"Of course the notion that this Court couldn't overturn its previous ruling just 'cause nobody asked seems precarious. Doesn't the Roberts Court specialize in doing just that, even shopping for cases that offer opportunities to undo previous holdings it doesn't like? The difference seems to be that the affirmative-action situation was just too contentious, and no majority could be assembled for more definitive action. Meanwhile, though, it looks like the affirmative-action haters are going to get their way. Judges all over the country, including those of the federal appeals courts that feed cases to the Supreme Court, should have a good idea of their marching orders here, and presumably many more lawsuits like Fisher will be encouraged. (In any case, the Court has already agreed to take on the situation at the University of Michigan next term.)AND THOSE OTHER RULINGS? THE ONES MOST OF US WON'T EVEN BOTHER TO TRY TO PUZZLE OUTTo illustrate the importance of the "throw-away" rulings, the ones nobody pays much attention to, and the ones in which the Supreme Court goofuses do an important part of their dirty work, here's ThinkProgress's Ian Millhiser's quick take on a bundle of three of today's decisions (links onsite):
Supreme Court Ruled In Favor Of America’s Top Corporate Lobbying Group In 13 of 16 Cases This Term
By Ian Millhiser on Jun 24, 2013 at 4:30 pmEarlier today, the Supreme Court handed three big victories to big corporations seeking immunity from the law, and equally substantial defeats to American workers and consumers. In a pair of workplace civil rights decisions, the Court made it easier for many bosses to get away with sexual or racial harassment, and it eased the path for many companies that retaliate against workers who claim they are victims of discrimination. Additionally, the Court held a generic drug manufacturer whose product allegedly caused burns over half a patient’s body immune from a lawsuit that would have compensated this victim for her injuries. Notably, the U.S. Chamber of Commerce, the nation’s top business advocacy group, filed briefs on the victorious side in each of these cases.Indeed, after today, the Chamber’s record before the Roberts Court is 13 wins and just 3 loses this term. This marks a sharp increase in the Chamber’s win rate even as compared to prior terms before the conservative Roberts Court. A Constitutional Accountability Center study of the Chamber’s record before the justices from last month found that the Chamber won 69 percent of its cases before the Roberts Court. That’s in contrast to a 56 percent win rate in front of the quite conservative, but comparatively more moderate, Rehnquist Court.Notably the Court deferred so completely to the Chamber today that it adopted a harsh rule limiting sexual and racial harassment claims even though the attorney arguing that case on behalf of the defendant — a former Solicitor General under George W. Bush — would not endorse the rule himself while he was arguing the case. So the five conservative justices sided with the Chamber even though no party before the Court agreed with the Chamber’s position.
SOMETIMES THE JOB OF AN FRWS JUSTICE GETS HARDERIn addition to handing down today's five rulings, the Court today announced nine new cases it has agreed to hear in the next term, the one that's getting the most attention being National Labor Relations Board v. Noel Canning, the case in which the lower court invalidated selected recess appointments made by President Obama.You might think this would be a snooze for the FRWS justices. Screw Obama! The problem is that the Supreme Court hasn't yet been quite reduced to the status of bottom-feeding newspaper thumb-suckers like George Will and Chucky Krauthammer, who get to yammer on about wild expansion of executive powers when the executive in question is a non-right-winger, even when it's as milquetoast a moderate as Obama, but never utter a peep when a gang of rampaging executive sociopaths like the Bush regimistas do their best to create an executive-branch dictatorship. No, the High Court's rulings have to stand for regimes of all political stripes. So what'a a determined FRWS justice to do faced with such a dilemma?Like I said, sometimes the job of being a no-brainer justice isn't as easy as it looks.#