Recently in Supreme Court Category

An 8-1 decision correctly enforces the default freedom of contract to arbitrate in a credit-card agreement in the absence of statutory language eliminating it, but look forward to litigation lobby supporters calling it an example of pro-business bias (notwithstanding the overwhelming bipartisan support for the decision) rather than an example of the Supreme Court correcting the Ninth Circuit's anti-business bias.

At Media Matters, David Lyle is critical of my post about Michael Greve's new paper. But he exhibits no evidence of having read Greve's paper: he just asserts that it's wrong, without addressing the Commerce Clause issues Greve raises, much less the century and a half of Supreme Court precedent Greve discusses in support of his contentions.

Lyle is also critical of me because I correctly noted that the Court is not pro-business by any reasonable qualitative standard by... asserting the same flawed quantitative statistics that I had previously refuted as meaningless. Does Lyle address that refutation? Nope! He just repeats the assertion and pretends I never said anything about it, incorrectly insinuating that I was unaware of the argument.

Lyle does point to AT&T v. Concepcion and the unanimous decision in Wal-Mart v. Dukes, though he has no criticism of these decisions other than the result that they came out the way the Chamber of Commerce wanted. Of course, these are examples of the Supreme Court correctly applying the law to reverse the anti-business Ninth Circuit; in both instances, the decisions are good for consumers and employees, if bad for the litigation lobby special interest that Media Matters is for some reason mindlessly parroting. The fact that Media Matters has only snark on their side, rather than substance, is revealing.

I've on several occasions expressed impatience with the inaccurate myth that the Supreme Court is unreasonably pro-business: December 2010; March 2011; June 2011; July 2011, etc.

A new must-read paper by Michael Greve, forthcoming in the Charleston Law Review, tackles the same issue. But Greve goes further: he persuasively argues that the Constitution effectively anticipated that the Supreme Court would be pro-business, and that is a good thing. The structure of the constitution, via the Commerce Clause, anticipated that the parochial interests of individual states would attempt to extract the marginal value of interstate commerce, and that the federal system and Supremacy Clause would act as a check on those anti-business instincts of individual states for the greater good of the nation as a whole. Thus, states would improperly fetter business; the Supreme Court, acting in its constitutional capacity, would act to prevent these infringements on interstate commerce; the result would be a Court that is "pro-business" by the improper metric of counting noses for votes for and against business in individual cases. But today's Supreme Court falls far short of that constitutional and federalist ideal:

Upon inspection, the notion that the Roberts Court's jurisprudence heralds a restoration of unbridled capitalism--or, more modestly, of reliable rules of the road for commercial actors--proves untenable, if not downright absurd. It is true that the Supreme Court often rules for business. And this past Term, unlike in preceding years, those rulings have often been the work of a narrow 5-4 or 5-3 conservative majority. ... However, the pattern is hardly unbroken. Moreover, and far more important, the conservative Justices' pro-business decisions look like picking weeds in downtown Detroit or for that matter Mrs. Rand's crumbling New York--well-meant, but unlikely to improve the neighborhood on a lasting basis.

Update: Welcome Media Matters readers. I have responded to Mr. Lyle's snark.

Reuters has created a cool new Supreme Court tracking tool they call, Case by Case: The U.S. Supreme Court 2011 - 2012 Term.

Cases are displayed featuring the legal issue(s) to be considered by the Court, a brief summary of the facts and procedural history, information about the lead attorneys, links to briefs, related materials and more helpful resources. Users can also filter cases via 12 color-coded categories such as business, criminal, First Amendment, etc.

This looks like a great tool for those interested in keeping track of Supreme Court arguments and decisions with the additional option of using categories to keep tabs on particular legal issues.

The decision by the United States Supreme Court to review the constitutionality of Obama's healthcare reform law has reinvigorated fiery debate in the public forum. Part of the debate generated by the Court granting cert however, has had nothing to do with the Patient Protection and Affordable Care Act itself or the legal merits of the case(s).

Instead, a re-energized campaign to bring cameras into America's highest court has manifested itself into Senate Bill 410: Sunshine in the Courtroom Act of 2011 sponsored by Sen. Chuck Grassley (R. Iowa). Advocates of televising oral arguments at the Supreme Court claim [that] "it would enhance accountability, transparency and public understanding of the judicial system." Opponents respond [that] "it would only tempt attorneys to play to the cameras, allow video clips to be taken out of context, and possibly mislead the public."

Supporters point to the established practice in Canada and individual states like Iowa where they say the presence of cameras has become commonplace and "pretty much a non-issue." Even after conceding these arguments, some would like this decision to be made by the Supreme Court rather than by Congress.

The Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing to discuss the bill on Tuesday.

Do you think oral arguments before the Supreme Court should be televised, let us know on Twitter via #PoLforum?

To repeat myself: Dahlia Lithwick got something embarrassingly wrong when trying to criticize a right-winger and defend a liberal? Quelle surprise! Jonathan Adler demolishes the claim that Justices Scalia and Thomas did something wrong by speaking to the Federalist Society; note also that we never see complaints when liberal justices speak to liberal organizations. Earlier.

My colleague Paul Howard, who heads the Manhattan Institute's Center for Medical Progress, discusses the constitutional challenge to the Patient Protection and Affordable Care Act with a focus on the policy problems with the new legislation. See his thoughts here at our sister blog, Medical Progress Today.

As the Supreme Court has now granted cert to hear the constitutional challenges to the Patient Protection and Affordable Care Act, a/k/a "Obamacare," our readers might be interested in watching this video of a September 15 event we hosted at the Manhattan Institute in which professors Richard Epstein and Larry Tribe debated the subject, moderated by yours truly:

In October, PointofLaw asked whether the Patient Protection and Affordable Care Act was SCOTUS-bound. Yesterday, the Supreme Court of the United States granted certiorari to examine the various major issues raised with regard to the federal healthcare legislation.

According to Lyle Denniston of Scotusblog, the oral argument will be argued over two days and structured in the following manner:

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

Ashby Jones of the Wall Street Journal provides a more detailed overview of the issues to be argued and examines the district court and appellate level rulings on those issues.

Despite the many predictions on the outcome of Supreme Court review, the question is a close one and there are many strong arguments on both sides as evidenced by the dynamic debate between former solicitor general Paul Clement and Harvard Law School professor Laurence Tribe hosted by the Federalist Society at their Fourth Annual Rosenkranz Debate and Luncheon.

However, what is now certain is that PPACA is indeed SCOTUS-bound.

A breakdown of the Court's orders can be found here.

On May 23rd of this year in Brown v. Plata, the U.S. Supreme Court in a 5-4 decision written by Justice Kennedy upheld an order to release thousands of California prisoners. "The Supreme Court reasoned that since prisons had failed to provide adequate healthcare to some prisoners, and overcrowding in some prisons contributed to prison doctors' failure to provide adequate healthcare, the state prison system as a whole should be ordered to radically reduce its population of inmates."

To comply with the ruling in Brown, California has established a practice known as realignment, which is expected to send as many as 8,000 offenders who would normally go to state prisons into the L.A. County Jail system in the next year. As a result, Los Angeles County's jails could run out of space as early as next month, prompting officials to consider releasing potentially thousands of inmates awaiting trial.

In a post immediately after the ruling in Brown, PointofLaw.com featured a prediction by criminal justice expert Kent Scheidegger that "vast numbers of people who commit property crimes, such as car thieves, will no longer be imprisoned--so if you live in California, 'don't bother investing much in a car. It will be open season on cars given that car thieves ("nonviolent offenders") will never go to prison no matter how many times they are caught." Unfortunately, this latest news from Los Angeles confirms the consequences of the decision that Scheidegger anticipated .