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Monday, June 17, 2013

Today's Decisions

I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court.  (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)


  • Justice Thomas writes an opinion joined by the four "liberal" Justices.  I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court.  If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice.  [UPDATE:  As a commenter points out, not actually the first time for a CT assignment, or even for this lineup.  But still unusual.]
  • It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
  • Not for the first time, I despair of the Court having a coherent theory of stare decisis.  Not that there aren't coherent theories, just that the Court doesn't have them.


  • Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.

Inter Tribal Council of Arizona:

  • Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
  • Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.


  • That's a lot of citations to legal scholarship in the majority opinion.  (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)


  • I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case."  Must be Justice Kennedy! I thought.
  • The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.

Posted by Will Baude on June 17, 2013 at 02:38 PM in Constitutional thoughts, Judicial Process, Law and Politics | Permalink


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Doesn't the Arizona v. Inter Tribal Council case force Arizona to adopt a dual registration system?

Since Arizona Prop. 200 has been pre-empted by Federal law (rather than over-turned), the parts of it that are not pre-empted are still good law.

Since the Federal NVRA only applies to Federal elections, it does not conflict with (and therefore cannot pre-empt) Prop. 200 to the extent that Prop. 200 applies to non-Federal elections.

This implies that, for state election purposes, voting authorities must still reject any form (including the Federal one) that is not accompanied by proof of citizenship, and therefore Arizona must keep a separate list of Federal-only voters.

Posted by: Kramartini | Jun 21, 2013 12:16:03 PM

Marty, I'm working on that post. But even when I don't necessarily think a given precedent should be overruled, I greatly appreciate Justice Thomas's willingness to question those precedents.

Posted by: William Baude | Jun 18, 2013 1:58:40 AM

Just curious, Will: Why are you so enamoured of the idea of overruling Griffin?

Posted by: Marty Lederman | Jun 17, 2013 8:54:37 PM

Thanks! Both points ought to be fixed.

Posted by: William Baude | Jun 17, 2013 7:36:11 PM

The link to "coherent theories of stare decisis" is broken.

Posted by: Patrick S. O'Donnell | Jun 17, 2013 6:00:10 PM

According to WUSTL's Supreme Court Database, Thomas has assigned two other majority opinions. Dolan v. United States (Alito joined, Stevens dissented. Assigned to Breyer) and CSX Transportation v. McBride where he voted with the current 4 liberals and assigned to Ginsburg.
So this would be the first case he assigned to himself at least.

Posted by: Peter | Jun 17, 2013 5:26:14 PM

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