Supreme Court Preview

September 8, 2014

The U.S. Supreme Court works on a schedule akin to your child’s long obsolete school schedule, which was based on an agrarian economy. Kids needed to work the fields during the summer months, so there was no school. (Schools have figured out how much time they spend in the early fall, bringing children back up to where they left off in May, which explains why so many families have Augustus Interruptus when it comes to vacations.) Not so justices, probably ever, and certainly not now! (I’m working on getting information about the origins of the summer vacation; if I get good information, I’ll report it.)

The 2014-15 term begins on October 6, the first Monday in October. (For film buffs, First Monday in October is a delightful movie about the Court starring Jill Clayburgh and Walter Matthau, two performers who were hard not to love.) Mark Rubin Writes will be back at it, reporting on this and that from time to time, mostly on Tuesdays.

With about four weeks to go, I thought I should share with you all a few pieces that have resonated during the break. (By the by, the break was much appreciated. Silly though it may be that a governmental branch in the most powerful country in the history of the universe—as far as we know—takes a summer vacation, I enjoyed not having to report on one bad decision after another. Really!)

The major case of the term will likely involve same sex marriage. So far, every court has ruled in favor of same sex couples, but for the U.S. District Court in Louisiana and a state court in Tennessee. Those rulings include decisions from the 4th, 7th, and 10th circuits, none of which are known for being “liberal.” Judge Richard Posner wrote the 7th Circuit’s decision in Baskin v. Bogan, etc. You should find it lucid and, I think, easy to understand. I suspect it will help persuade Justice Anthony Kennedy (if he needs any persuading), and that by June 30, 2015, same sex couple will have equal rights. (Here’s a thoughtful piece by Garrett Epps for The Atlantic, posted on September 3, titled A Louisiana Judge Takes Aim at Gay Marriage—and Justice Kennedy. I don’t discount the theory, but the article predated Judge Posner’s decision, he’s a very influential judge, and Justice Kennedy has a predisposition on the topic.)

From here’s Lyle Denniston’s summary of the Court’s oral arguments for November and December. Watch for the Alabama redistricting cases, set for extended arguments on November 12. I’m also watching Young v. United Parcel Service, a pregnancy discrimination case, to be argued on December 3.

Finally, and looking back at the last term, Tragedy or Triumph by Linda Greenhouse for the New York Times on September 3 is a “must read.” Excellent analysis regarding Canning v. National Labor Relations Board, No. 12-1281, the recess appointments issue. In the blogs, this case was all about President Obama’s dictatorial overreach. Poppycock, of course, as every president has used the same powers, repeatedly. And the difference? Now we have a more broken Congress, more willing to game the system. Regardless, Ms. Greenhouse carefully analyzes the three issues the Court faced, and demonstrates how Justice Stephen Breyer and his decision-making approach prevailed.

Of course, finality means less and less with the United States Supreme Court. In that vein, here from the New Yorker is The Supreme Court in the Archives by Joshua Rothman and Erin Overbey, with links to six great New Yorker pieces about five current justices—Ginsburg, Kennedy, Roberts, Scalia and Sotomayer—and one no longer with us, William Brennan. (The New Yorker, by opening up its archives, has shown me how great the magazine was, and still is!)


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