The Supreme Court's first opinion of the day is in Goldman Sachs v. Arkansas Teacher Retirement System. Majority opinion by Barrett. There will be more opinions! supremecourt.gov/opinions/20pdf…
Letting @LeahLitman summarize this holding because I did not follow the case, which involves a securities fraud class action.
The Supreme Court's second decision of the day is in NCAA v. Alston. In an opinion by Gorsuch, the court *unanimously* upholds the district court's injunction against the NCAA based on "established anti-trust principles"! This is a big deal. supremecourt.gov/opinions/20pdf…
!!! In a concurring opinion, Kavanaugh argues that *other* NCAA restrictions on student-athlete compensation and benefits—which are not at issue in this case—may also violate anti-trust law! supremecourt.gov/opinions/20pdf…
Gorsuch: The NCAA "seeks immunity from the normal operation of the antitrust laws." But the court declines its request, noting that "this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control." supremecourt.gov/opinions/20pdf…
There will be at least one more opinion, which could come from any justice except Barrett or Kavanaugh.
Last paragraph of Kavanaugh's concurrence:
"Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their
workers a fair market rate. ... The NCAA is not above the law."
The Supreme Court's FINAL decision on the day is un U.S. v. Arthrex, which has a very messy breakdown. supremecourt.gov/opinions/20pdf…
Remarkably, THOMAS, joined by the three liberals, dissents, arguing that the Appointments Clause does not require Senate confirmation of "officers inferior to
not one, but two officers below the President." supremecourt.gov/opinions/20pdf…
The upshot in Arthrex is (1) the Secretary of Commerce's appointment of judges to the Patent Trial and Appeal Board is unconstitutional, and (2) the remedy is that the director of the Patent and Trademark Office must be able to review the Board's decisions.supremecourt.gov/opinions/20pdf…
Arthrex is a prime example of how a 6–3 conservative majority makes a big difference. Thomas disagreed with the rest of the conservatives, and if RBG were still alive, this likely would've been a 5–4 decision going the other way. But picking off one conservative isn't enough.
Kavanaugh floats collective bargaining for student athletes (!!!) as a potential remedy for (what he sees as) the NCAA's widespread anti-trust violations. supremecourt.gov/opinions/20pdf…
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On the rule, created and enforced by heterosexual white men on this website *every damn day,* that your legal opinion is invalid if it arises from strongly held principles: repository.law.umich.edu/cgi/viewconten…
This is crucial. When <certain male commentators> want to police criticism of the judiciary, they often accuse critics of failing to understand some arcane aspect of the law—framing them as overly emotional amateurs who can't roll with the big boys. repository.law.umich.edu/cgi/viewconten…
BREAKING: The Supreme Court throws out the challenge to Obamacare, holding the plaintiffs all lack standing: supremecourt.gov/opinions/20pdf…
Breyer writes for the court, holding that the states and the individual plaintiffs lack standing. Only Alito and Gorsuch dissent. supremecourt.gov/opinions/20pdf…
Alito, joined by Gorsuch, would hold that (1) the individual mandate is now unconstitutional, and (2) large portions of the ACA must essentially fall with it, becoming "unenforceable" against the state plaintiffs here. supremecourt.gov/opinions/20pdf…
Good morning! The Supreme Court will issue opinion(s) at 10 a.m. In the meantime, you might be interested to read about how the conservative legal movement's opposition to nationwide injunctions seems to have evaporated upon Joe Biden's inauguration! slate.com/news-and-polit…
While bad-faith trolls may miss this point, what's fascinating is that conservative judges barely even bother to justify their nationwide injunctions. This judge, for instance, provided one sentence of conclusory reasoning after claiming to "disfavor" nationwide injunctions.
By performatively wringing their hands over nationwide injunctions—then issuing them anyway with the thinnest, most conclusory reasoning—conservative judges are trying to have it both ways: Get credit for questioning nationwide injunctions while handing them out willy-nilly.
Sorry to repeat myself, but I am truly baffled by the seemingly widespread belief that a Republican-controlled Senate will ever again confirm a Democratic president's Supreme Court nominee. It's just not going to happen. Not in your lifetime, not in mine, not in anyone's.
Taking this a step further, I'm not convinced a Republican-controlled Senate will ever confirm another Democratic president's appeals court nominees, either. *Maybe* a tiny handful, but as a rule, Republicans will hold those seats open. They've all but admitted as much!
Democrats should assume that if Republicans win the Senate in 2022, they will refuse to confirm any of Biden's nominees to the courts of appeals or the Supreme Court. It'll be like the 2015-2016 blockade—but worse, because of what Republicans have gotten away with in the interim.
Greer v. U.S. is an 8–1 decision with Sotomayor dissenting in part.👇
Style nerds will note that Kavanaugh does not divide his opinion into sections, as is customary, but simply writes it like a long essay, presumably because it's short (11 pages). supremecourt.gov/opinions/20pdf…
Because Kavanaugh went first this morning, the next opinion(s) could come from any justice except Barrett, as they're issued in order of reverse seniority.
A lot of media coverage about the Justice Department's defense of Title IX's religious exemption is misleading and confused. It has fomented a great deal of anger among progressives that is deeply misplaced. This is not the story you might think it is. slate.com/news-and-polit…
Title IX's religious exemption has existed since Title IX was passed in 1972. The Department of Justice has a duty to defend it. A Christian organization is trying to seize that duty from the DOJ, which would be very bad. DOJ is right to insist on defending the law itself.
The Council for Christian Colleges and Universities wants to take over the defense of Title IX's exemption so it can present extreme arguments in favor of sweeping religious exemptions from civil rights laws. Again: The DOJ is right to resist that effort. slate.com/news-and-polit…