SCOTUS Levels Playing Field For Student-Athletes | John Roberts, The Judicial Magician

June 22, 2021

ICYMI, the Supreme Court yesterday ruled unanimously against the NCAA, saying it can’t limit education-related benefits and payments that colleges offer their student-athletes. It’s a massively important victory in the decades-long effort to pay college athletes. Jessica Gresko with The Associated Press reports, “Schools recruiting top athletes could now offer tens of thousands of dollars in education-related benefits that also include study-abroad programs and graduate scholarships. However, the case doesn’t decide whether students can simply be paid salaries for the benefits their efforts bring — measured in tens of millions for many universities.”

“There’s an old saying: If you see a duck riding a bicycle, and I see a duck riding a bicycle, sometimes you still need the Supreme Court to unanimously say that it sees a duck riding a bicycle, too. OK. Fine. That’s not an old saying. I made that up. But that’s effectively what happened Monday, as the nation’s highest court confirmed what any reasonable person can see, that big-time intercollegiate athletics is a warped, hard-to-defend product.” Jason Gay writes in The Wall Street Journal about the Supreme Court’s unanimous decision yesterday to finally rebuff the NCAA’s “flimsy claims of amateurism.” JUSTICE BRETT KAVANAUGH wrote for SCOTUS, “The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a ‘love of the law.’”

Also yesterday, the Supreme Court gave Goldman Sachs another chance to defend itself from a class-action lawsuit in which shareholders argue the big bank artificially inflated its share price before, during and after the financial crisis. SCOTUS threw out a decision from the 2nd Circuit last year that allowed shareholders to sue as a group under federal investor protection law. The high court directed the lower court to reconsider the matter, ruling the 2nd Circuit in its prior judgement failed to properly assess whether the bank’s statements that the investors argue were misleading were too generic to have affected its stock price.

Justices yesterday ruled that more than 200 patent judges were improperly appointed. Adam Liptak with The New York Times reports, “The solution, a fractured majority of the court ruled, was to give the director of the U.S. Patent and Trademark Office the power to review the judges’ decisions in cases brought under a 2011 law that made it easier to challenge questionable patents. Supporters of the procedure, called inter partes review, which is Latin for ‘between the parties,’ say it helps combat patent ‘trolls,’ or companies that obtain patents not to use them but to demand royalties and sue for damages. Opponents say the procedure is skewed toward the cancellation of valid patents. The decision on Monday means the challenges will largely proceed as before, without changes to how the judges are appointed. The court’s narrow fix, subjecting the judges to additional supervision, fell well short of upending the current system.”

On a recent episode of Amicus — the Slate podcast hosted by Dahlia Lithwick — ERWIN CHEMERINSKY joins to discuss the Supreme Court’s decision in the major religious freedom case, Fulton v. City of Philadelphia.  

Speaking of the Fulton case, Mark Joseph Stern with Slate says CHIEF JUSTICE JOHN ROBERTS’ skills as “a judicial magician” were on full display in the court’s decision regarding that dispute last week. “Somehow, Roberts was able to create a six-justice majority to hold that Philadelphia violated the Constitution when it ended its contract with a foster care agency that turns away against same-sex couples. He united the three liberals together with JUSTICE AMY CONEY BARRETT and BRETT KAVANAUGH in support of a taxpayer-funded agency’s ability to discriminate against gay people. At the same time, Roberts affirmed that preventing anti-gay discrimination is a compelling state interest. And, to top it all off, he upheld a landmark precedent that a supermajority of the court apparently wants to overturn. We may never see a more masterful display of constitutional prestidigitation.”

Ian Millhiser with Vox notes the Supreme Court last week shut down an attack on Obamacare in the most dismissive way possible by making clear justices thought plaintiffs trying to undo the law had “no business being in court in the first place.”