Tomorrow, March 5, the U.S. Supreme Court will tackle an unusual question regarding its precedent. Rather than determining how a prior case should be interpreted, the Court will address whether the case should be overruled altogether. In arguments for Halliburton Co. v. Erica P. John Fund, the Court will decide whether to overrule or substantially limit its holding in Basic Inc. v. Levinson. Both cases deal with the “fraud-on-the-market” theory of liability in SEC Rule 10b-5 class action suits.
Read more about the arguments for tomorrow here.
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit Court held oral arguments on whether the requirement that publicly traded companies disclose the use of certain minerals from certain African countries is a violation of the First Amendment and whether the SEC took arbitrary actions when adopting the rule.
A trio of business groups challenged the Securities and Exchange Commission’s conflict minerals rule, but the district court upheld the rule. The rule, meant to cut off funding for those perpetrating human rights abuses, requires companies to disclose whether their products contain tin, tunsten, tantalum, or gold from the Democratic Republic of Congo and its neighbors, but the business groups question whether the rule would help the African people and argue that complying with the rule would cost companies billions of dollars. They also argue that the SEC could make compliance less of a burden by exempting those companies who use only trace amounts of the minerals in question. The First Amendment argument is that the rule forces them to criticize their own products; during the oral arguments, the panel seemed concern that making companies share this information could be a “slippery slope.” The SEC argues that it is following its Congressional mandate by creating the rule.
Yesterday, the Supreme Court heard arguments in NLRB v. Noel Canning to decide whether the president’s power to make recess appointments can be exercised:
- during a recess that occurs within a session of the Senate OR is limited to recesses that occur between enumerated sessions of the Senate
- to fill any vacancy that exists during a recess OR is limited to those that arise during the recess
Last January, the U.S. Court of Appeals for the District of Columbia Circuit held that three appointments to the National Labor Relations Board by President Obama were unconstitutional. The government appeals that decision.
For a review of the argument, see this SCOTUSblog post.
This morning, the Supreme Court will hear oral arguments in the case of United States v. Apel, concerning whether military bases have the authority to punish anti-war protestors who violate the rules of access to military facilities. The military base in question is Vandenberg Air Force Base in California, a base that the public needs special permission to enter, but across which runs Pacific Coast Highway, a public road, which are generally open to free speech activity. In the late 1980s, a commander set up a public protest area just outside the main gate, along the highway. There are laws making it a crime to enter a military base for an illegal purpose and to reenter a base after having been barred or removed from a base, but the federal government formally gave the state of California an easement to use the part of the Pacific Coast Highway that runs across the edge of the base as a public road. The protest zone is within the space covered by the easement.
The defendant in the case is no longer welcome in the protest zone due to an earlier incident in which he through blood on a sign at the gate of the base and then again years later for trespassing. In 2010, Mr. Apel entered the protest zone on three occasions. He was charged for violating the provision hat criminalizes entering a base after having been barred previously and convicted. The Ninth Circuit overturned that conviction, relying on a prior case from the same military base that stated the Air Force can only punish those entering a base without permission if the military has “the exclusive right of possession” of the property and concluding that it shares authority over the protest zone and the part of Pacific Coast Highway because of the easement.
Check out SCOTUSblog’s analysis on the upcoming arguments to see the issues that will likely arise and what the court will be considering.
On Monday, the Court refused to hear two new cases that challenged state taxes on Internet-only sales in states where those companies do not have a physical presence: Overstock.com Inc., v. New York Taxation Dep’t and Amazon.com v. New York Taxation Dep’t. In both cases, the Internet retailers argued that they had no presence in the state and should be exempt from taxes on purchases made on those Internet retail sites by New York customers. The Court of Appeals (the highest court in the state) ruled that they were subject to tax in New York because contracts with third-party local affiliates that generate customers for them through Internet links to the retailers’ websites is a substantial enough nexus to force the companies to collect taxes. The Washington post posited that the court’s decision to stay out of the issue may pressure Congress to come up with a solution on a national level; in the meantime, Overstock.com has suspended its relationships with the local affiliates to avoid having to conform to the New York law.
Check out this latest SCOTUSblog post on why Supreme Court cases settle. The post was written in light of the recent settlement in the Mount Holly v. Mount Holly Garden Citizens in Action Inc. housing discrimination lawsuit. The post is part of a larger series called SCOTUS for law students; you can check out all the post in the SCOTUS for law students series here.
On Wednesday, the U.S. Court of Appeals for the Fourth Circuit held in Bland v. Roberts that the use of the “Like” button on Facebook qualifies as constitutionally protected free speech under the First Amendment and cannot be used against public employees. The case arose after five former appointees at the Hampton, Virginia sheriff’s office were not reappointed after they used the like button to support his opponent’s campaign. The court rule that their public expression did not interfere with their job duties as public servants and likened their actions to putting a campaign poster in their front yards, a type of speech that has long been protected.
In a long-awaited and highly debated ruling this morning, the Supreme Court ruled 5-4 that the Defense of Marriage Act is unconstitutional as a violation of the equal liberties guaranteed under the Fifth Amendment. The holding only applies to those same-sex couples lawfully married within a state authorizing same-sex marriage. The Court deliberately chose not to address the issue of whether states may continue to exercise their authority to restrict the definition of marriage to a union between a man and a woman.
Justice Kennedy wrote the opinion, with dissents from Chief Justice Roberts and Justices Scalia, Thomas, and Alito.
This morning, the Supreme Court held, in a 5-4 decision, that the provisions of the Indian Child Welfare Act at question in Adoptive Couple v. Baby Girl were not designed to apply to circumstances like Baby Veronica’s, where the child’s “removal” is not causing an Indian family’s “break-up.” Baby Veronica’s biological father never held legal or physical custody of the child. This is the interpretation put forth by the adoptive parents. Justice Sotomayor wrote the dissent, joined by Justices Ginsburg and Kagan in full with Justice Scalia joining in part.
Previously, the South Carolina Supreme Court had given custody of the girl to her biological father, ruling that the Indian Child Welfare Act barred the adoption. The Supreme Court reversed the judgment and remanded for further proceedings. For more information on this case, see SCOTUSblog’s analysis.
Today, the Supreme Court finally issued its decision in Fisher v. University of Texas at Austin, which challenged the university’s use of race in its admission process for undergraduates. The Court did not outlaw affirmative action programs, as many had feared, instead reinforcing that the use of affirmative action by a university must meet the “strict scrutiny” test, in a 7-1 decision. Under this type of scrutiny, a university’s use of affirmative action is constitutional only if it is “narrowly tailored.” The court went on to explain that courts applying this test will need to confirm that the use of race is necessary to create a diverse student body. Because the lower court in Fisher had not done so, the Court sent the case back down so it could determine whether the University of Texas at Austin could show that the use of race is necessary.
For much more analysis on Fisher v. University of Texas at Austin, see SCOTUSblog’s coverage here and here.