Justices Consider Future Of Voting Rights | Patent Judges Got Their Day In Court Yesterday
March 2, 2021
HERE WE GO AGAIN
|Today the Supreme Court hears arguments in a closely watched voting rights case regarding two Arizona voting rules. It’s possible that the new ultra-conservative court will use this as an opportunity to gut the Voting Rights Act (even more so than it already has), and make it harder for some to vote. Nina Totenberg with NPR explains that in 2013 SCOTUS cut out a provision of the VRA, saying state and local governments with a history of racial discrimination in voting no longer have to get pre-clearance from the Justice Department before making changes in voting procedures. Totenberg: “Writing for the court, CHIEF JUSTICE JOHN ROBERTS essentially said that times had changed and that the law, in treating some states differently from others, was unconstitutional. Besides, he said, another provision of the law still bars discrimination in voting nationwide. That provision, known as Section 2, would be sufficient to police discriminatory voting procedures, he noted. Now, eight years later, Section 2 is in the conservative court’s crosshairs.”
TOP-ED
|David H. Gans writes in Slate about the voting case before SCOTUS and argues, “The plain language of the Voting Rights Act and the Constitution both point in the same direction. It is the Supreme Court’s obligation to heed the language Congress chose to make our Constitution’s promise of voting rights for all, regardless of a race, a reality.”
PATENTLY WRONG PERHAPS
|Yesterday, SCOTUS considered whether the appointment process for administrative judges who hear patent disputes is unconstitutional. More than 250 judges serve on the Patent Trial and Appeal Board, an administrative tribunal in the executive branch. Adam Liptak with The New York Times reports several justices seemed to think that the judges should have been appointed by the president and confirmed by the Senate.
NOT HOW THIS IS SUPPOSED TO WORK
|Members of the Supreme Court’s conservative wing suggested during yesterday’s 90-minute telephone argument that Congres violated the Constitution when it gave the Patent Trial and Appeal Board the authority to invalidate patents without direct review by a presidentially appointed official. Greg Stohr with Bloomberg notes this is a case tech companies are keeping a very close eye on. “Many of the nation’s largest technology companies, including Apple Inc. and Alphabet Inc.’s Google, are backing the board as an efficient means of voiding patents that never should have been issued. Some smaller inventors say the board has become an anticompetitive tool for large companies. The appointments clause, which requires ‘principal officers’ to be nominated by the president and confirmed by the Senate, has been a focus of the court’s conservatives in recent years. It was at the center of a decision last year giving the president power to fire the director of the Consumer Financial Protection Bureau. Monday’s arguments suggested at least five of the court’s conservatives were prepared to say the patent board’s setup violated the appointments clause.”
EXPLAIN YOURSELF
|Dahlia Lithwick and Mark Joseph Stern with Slate review the Supreme Court’s recent decisions curbing COVID-19 restrictions that were delivered without explanation from justices. Most recently, the high court blocked a California ban on church services, delivering the news in an unsigned order with all three liberals dissenting. Lithwick and Stern note that without a majority opinion revealing the court’s reasoning, we’re all left to wonder why they’re shaping the law as they are. “What are state and local officials attempting to fight the deadliest pandemic in a century supposed to do with this sprawling mess? Can they craft any public health restriction on religious services that will hold up to this court’s scrutiny? The Supreme Court’s COVID jurisprudence might be incoherent, but its underlying message is relatively clear: Religious exercise now gets special benefits above and beyond all other First Amendment activities. Why? We don’t really know.”
SCOTUS VIEWS
This SCOTUS Doesn't Care About Your Voting Rights
MSNBC“Because the Supreme Court is more conservative than it was in 2013 when it crippled the 1965 Voting Rights Act, it would be unwise to rely of the current court to use what is left of the Voting Rights Act to adequately protect the right to vote. It is worth remembering that when the makeup of the court was more progressive than it is now, it essentially trashed one of the two columns of the Voting Rights Act. It is not the court that is likely to make the remaining column more robust. Instead, it is up to Congress to act and President Joe Biden to sign a more robust voting rights act — not in six months, but now.”
Lower Courts Take Notice: The Supreme Court Is Rethinking Qualified Immunity
USA Today“Until recently, the Supreme Court was not giving the courts any room to maneuver. In almost every case it considered on the issue of qualified immunity, the high court sided with the lower courts that shielded government officials from accountability and reversed lower courts that demanded it. To the Supreme Court, hypothetical policy concerns — such as the need to protect officials from being distracted by lawsuits — outweighed the need to provide plaintiffs with a legal remedy. In other words, in its application of qualified immunity, the Court put policy above law. But the Supreme Court may now be entering a new dawn on qualified immunity, and judges of all levels should take notice.”
OTHER NEWS
The Supreme Court Case That Could End Affirmative Action, Explained
Vox“The Harvard case is the first major affirmative action suit to reach the Supreme Court since Republicans gained a 6-3 majority on that court, and it’s the first such case to reach the justices since Anthony Kennedy’s retirement in 2018. Kennedy had unexpectedly cast the key vote to uphold an affirmative action program in Fisher v. University of Texas at Austin (2016). Kennedy is gone now, as is Justice Ruth Bader Ginsburg, and the court’s new majority can potentially use the Harvard case to end all race-conscious admissions programs altogether.”
U.S. Supreme Court Won’t Hear Citizens’ Radioactive Waste Permit Case
Bloomberg News“The U.S. Supreme Court won’t weigh in on whether a citizens’ group can question a federal nuclear research lab’s hazardous waste practices, the court announced Monday. The Los Alamos National Laboratory’s radioactive liquid waste treatment facility doesn’t have a hazardous waste permit under federal law. Instead, the New Mexico facility’s Environmental Protection Agency-issued Clean Water Act permit exempts it from federal waste regulations. That violates the act, Concerned Citizens for Nuclear Safety Inc. said in its petition. The permit allows the facility to discharge pollutants, but doesn’t prevent accidental leaks, the petition said.”