Live blog of orders and opinions - Monday, March 23
We will be live-blogging on Monday, March 23, as the court releases orders and possibly opinions from the March 20 conference. SCOTUSblog is sponsored by Casetext, the most intelligent way to search the law.
3rd & 7 37yd
3rd & 7 37yd
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Decision is quite short - only about 13 pages. Court sends the case back to the Ninth Circuit, which had held that the lawsuit could go forward as long as the plaintiff could show that race was a "motivating factor," to take another look at whether the pleadings were sufficient.
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This case involves 42 USC 1981 -- a broad statute that prohibits racial discrimination in any contracting. The Ninth Circuit had adopted a very plaintiff-friendly interpretation of this statute. It had required that the plaintiff just had to plead facts plausibly showing that race played "some role" in the contracting decision. That isn't the standard used in other discrimination statutes.
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It appears that they are releasing the opinions the way they are announced on the bench -- e.g., in reverse seniority. So we are not likely to hear from Justice Kavanaugh today; we could hear from Kagan again or from any of the justices more senior to her -- Sotomayor, Alito, Breyer, Ginsburg, Thomas, the Chief.
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The Court's opinion shows something of a generational divided among the Justices on the left. The two who were there when it announced this controversial line of sovereign immunity precedent -- Breyer and Ginsubrg -- say they would overrule it. The newer Justices on the left -- Kagan and Sotomayor -- seemingly accept it.
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The core of the disagreement in this case is about history. The dissent believes that it is so well accepted that a defendant must recognize that his crime is morally wrong that the Constitution has adopted that rule. The majority believes that the states have a lot of flexibility in this area and that there isn't one clear rule for the insanity defense that has been adopted historically.
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A key feature of this case, I think, is that the equitable tolling claim involved established or undisputed facts. In other words, this wasn't a fight about what happened, but instead whether equitable tolling applied in these circumstances. The Court holds that this sort of dispute is a "question of law."
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With no opinion summaries in the courtroom, we are missing out on the nuance that often comes from hearing the author give the highlights of his or her opinion. On an opinion day that is also an argument day, one of the reporters who stays down in the press room until all the opinions are out (Amy, to be specific) usually kindly brings me a set of the printed opinions in the courtroom. (Most reporters who stay down for opinions and choose to then come up for argument can make it before the arguments start during the short period when in-person bar admissions are being conducted.)