I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–“single entity theory”–in favor of another–“Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.