Gavel Grab

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George Will: High Court Unanimity Can Be ‘Injurious’

The high number of unanimous rulings by the Supreme Court this term continues to draw media attention, as Gavel Grab has mentioned. Now columnist George Will has joined the debate with criticism of the court.

Will has explained in the past (see Gavel Grab) his belief that excessive judicial restraint is not a virtue. In his latest Washington Post column, Will takes aim at two high-profile 9-0 rulings by the court on abortion clinic buffer zones and presidential recess appointment authority. Concurring opinions showed that on each, the court was fractured in its reasoning behind the unanimous bottom lines.

“Unanimity is not only spurious, it is injurious when purchased at the price of compromises that suggest disingenuousness. The Constitution’s purposes and architecture were sacrificed twice to produce 9 to 0 decisions,” Will protests. Read more

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Unanimous But Not United? Viewing the Supreme Court’s Term

Supreme_Court_US_2010When viewed through the lens of unanimity, the just-completed U.S. Supreme Court term is remarkable in the past half-century or more for the unanimous opinions it rendered in almost two-thirds of the 67 cases argued before it. At the same time, the numbers conceal deep division on the court over some issues, experts say.

These contrasting perceptions are important in a society where some people view the court as motivated by politics, and they are the focus of similar end-of-term articles in two leading U.S. newspapers.

The New York Times headline declared, “Compromise at the Supreme Court Veils its Rifts.” The Washington Post reported, “For these Supreme Court justices, unanimous doesn’t mean unanimity.” Read more

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Poll: Public Confidence in Supreme Court at Record Low

A general view of the U.S. Supreme Court in WashingtonAmericans’ confidence in the U.S. Supreme Court has declined to a record low, according to a Gallup poll conducted in early June that was the subject of a Huffington Post article.

Thirty percent of those surveyed said they had a “great deal” or “quite a lot” of confidence in the high court, compared to 34 percent in 2013 and 37 percent in 2012. Voicing the same level of confidence last month in the presidency were 29 percent of respondents, and voicing confidence in the Congress, seven percent, a record low. Both of those ratings were down from a year earlier.

“While the Supreme Court, with unelected justices serving indefinite terms, is immune to the same public pressures that elected members of Congress and the president must contend with, it is not immune to the drop in confidence in U.S. government institutions that threatens and complicates the U.S. system of government,” wrote Justin McCarthy of Gallup. Read more

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Supreme Court: Some Employers May Withhold Birth Control Coverage

A general view of the U.S. Supreme Court in WashingtonIn one of the highest-profile cases of the year, the Supreme Court ruled 5-4 on Monday that despite a federal Affordable Care Act mandate, family-owned corporations may withhold insurance coverage of certain contraception methods under a U.S. law that protects religious freedom.

The majority opinion by Justice Samuel Alito found, according to a New York Times report, that a “federal religious-freedom law applied to for-profit corporations controlled by religious families. He added that the [ACA's] requirement that the companies provide contraception coverage imposed a substantial burden on the companies’ religious liberty. He said the government could provide the coverage in other ways.”

The opinion was issued in Burwell v. Hobby Lobby Stores, Inc. It was the first time the court ruled that the Religious Freedom Restoration Act (RFRA) covers corporations as well as “persons” alluded to in its language, the Washington Post reported. Read more

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Commentary: In Unanimous Rulings, Justices Rise Above Partisanship

federal-court-buildingFor the first time since 1940, the U.S. Supreme Court has agreed unanimously in more than 66 percent of its cases through the term, and that’s a positive development for the nation, former Solicitor General Neal Katyal writes in a New York Times op-ed.

In his piece entitled “The Supreme Court’s Powerful New Consensus,” Katyal explains why he sees this development as so important:

“The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work, and striking down a Massachusetts ban on protests near abortion clinics — should remind us that even in this hyperpartisan age, there is a difference between law and politics.

“Unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship.” Read more

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High Court Unanimous on Buffer Zones, Recess Appointments

abortion_clinic_buffer_zone_cc_img_0On Thursday, the Supreme Court issued high-profile, late-term decisions striking down abortion clinic protest buffer zones and narrowing a president’s authority to make appointments during a recess of the Senate.

In the abortion clinic case, the justices unanimously struck down a Massachusetts law that extended a protest-free zone 35 feet outside clinic entrances. The zone violates protesters’ First Amendment rights, the court said, according to the Associated Press. The decision came in McCullen v. Coakley.

Regarding presidential authority, the justices scaled back “a presidential authority as old as the republic,” according to NBC News. Read more

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Far-Reaching Impact of Supreme Court Draws Attention Again

washington-supreme-court-building-washington-d-c-dc169The blockbuster decisions that the Supreme Court typically issues at the end of its term are drawing attention to the court and its far-reaching impact.

After the Supreme Court said on Wednesday that in most cases police should “Get a warrant” before searching the cellphones of people they arrest (see Gavel Grab), there was widespread media attention to the ruling’s implications and also to what it tells us about the court’s individual justices.

“Supreme Court cellphone ruling hints at broader curbs on surveillance,” declared a Washington Post headline. Applauded a New York Times editorial, “The Supreme Court Saves Cellphone Privacy.” Dahlia Lithwick wrote at Slate, “In the cellphone cases, the justices prove they are not Luddites.” Read more

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Court: Warrant Needed to Search Cellphone of Arrested Person

US Supreme CourtTo search the cellphone of a person who is arrested, the police generally must get a warrant first, the Supreme Court ruled 9-0 on Wednesday in a major decision about privacy rights in the digital era.

“Modern cellphones aren’t a technological convenience,” Chief Justice Roberts wrote, according to the Wall Street Journal. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice Roberts added.


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Roberts Court Delivers ‘Uncertain Justice,’ Tribe Writes

A general view of the U.S. Supreme Court in WashingtonIt’s not just oversimplified, it’s potentially dangerous to view the Supreme Court through the lens of 5-4 splits along ideological lines, Harvard constitutional law professor Laurence Tribe writes about a new book he has co-authored.

At The Volokh Conspiracy blog, Tribe plugs “Uncertain Justice: The Roberts Court and The Constitution,” a book he has written with Joshua Matz. Tribe says the book goes beyond frequent analyses written to vilify or oversimplify, in order to inform readers about the “amazing tales” and back stories of leading decisions of the Roberts Court:

“The 5-4 view isn’t merely inadequate; it can also be dangerous. When a generation of young lawyers is raised to see law as nothing but politics by other means, and when even some justices start repeating the view in public, it may prove self-fulfilling.” Read more

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In Oil Spill Litigation, Concerns About Justices and Sons

News media in Louisiana are reporting that two U.S. Supreme Court justices have sons who work at Gibson Dunn, the law firm representing BP in litigation over the Gulf of Mexico oil spill. One outlet, The Times-Picayune, says there are some calls for the justices to step aside from hearing any related proceedings in order to prevent an appearance of partiality.

GOMSpill_Hdr_ArtLast week, a federal appeals court ordered that business claims against BP may proceed while BP awaits action by the high court on its appeal of Fifth U.S. Circuit Court of Appeals ruling. The appeals court had said that to win payment, it is not necessary for claimants to prove the oil spill harmed them directly. BP is asking reversal of the appeals court ruling.

Justices Samuel Alito and Antonin Scalia each has a son who works at Gibson Dunn, reported.

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