You've got to love the new website - hot links to cases by month!!!
Topics: and this is just October's group!  And here's one sure to make it to the Supreme year....

Gay Marriage
Land Use
Maritime Law
Labor law
Jury Selection
Legislative Prayer
Medical Devises
Immigration, deportation
Race in college admissions among other things
Gun permits
Copyright ("Costco")

U.S. SUPREME COURT TERM 2012-2013 (as reported on in the NYTIMES)

A Legal Blow to Sustainable Development
June 26, 2013

STRAFFORD, Vt. — LOST amid the Supreme Court’s high-profile decisions on affirmative action, voting rights and same-sex marriage was another ruling that may turn out to have a profound impact on American society. The court handed down a decision on Tuesday that, in the words of Justice Elena Kagan, will “work a revolution in land-use law.”

While that may sound obscure, the decision in Koontz v. St. Johns River Water Management District will result in long-lasting harm to America’s communities. That’s because the ruling creates a perverse incentive for municipal governments to reject applications from developers rather than attempt to negotiate project designs that might advance both public and private goals — and it makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause.

The court’s 5-to-4 decision, with Justice Samuel A. Alito Jr. writing for the majority, arose from an order issued by a Florida water management district denying an application by Coy A. Koontz Sr. to fill more than three acres of wetlands in order to build a small shopping center. The district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s environmental effects. Because Mr. Koontz declined to pursue any of these options, the district denied the permit.

Mr. Koontz, who is now deceased, went to court and claimed that the permit denial constituted a “taking” under two Supreme Court precedents, Nollan v. California Coastal Commission and Dolan v. City of Tigard. These cases established that when the government approved a development subject to certain conditions, like a requirement that a developer dedicate an easement to the public, the conditions would be deemed an appropriation of private property unless the government could show a logical relationship and a “rough proportionality” between the conditions imposed and the projected effects of the development.

The Florida Supreme Court rejected Mr. Koontz’s takings argument on two grounds. First, it interpreted Nollan and Dolan as being limited to cases in which the government has issued a permit subject to a condition — not in those in which a permit has been denied. Second, it ruled that Nollan and Dolan applied only when the government’s condition took an interest in some tangible property (like demanding an easement, for example), not when a government imposed a generalized requirement on someone to spend money.

In what can fairly be described as a blockbuster decision, the Supreme Court has reversed the Florida court on both points.

Leaving the majority’s legal reasoning aside, the Supreme Court’s ruling is likely to do some serious real-world damage. As Justice Kagan correctly explains in her dissent, the decision will very likely encourage local government officials to avoid any discussion with developers related to permit conditions that, in the end, might have let both sides find common ground on building projects that are good for the community and environmentally sound. Rather than risk a lawsuit through an attempt at compromise, many municipalities will simply reject development applications outright — or, worse, accept development plans they shouldn’t.

“Nothing in the Takings Clause requires that folly,” Justice Kagan said. But arguably it does now.

As for the second part of the majority’s ruling, that Nollan and Dolan apply to permit conditions requiring the general expenditure of money, that will also have unfortunate consequences. Cities and towns across America routinely attach fees and other payment obligations to permits, for example, to support wetlands mitigation banks, to finance roads, to pay for new schools or to build affordable housing.

While, to be sure, such mandates must be reasonable under the Constitution, the revolutionary and destructive step taken by the court in Koontz is to cast the burden on the government to justify the mandates according to the heightened Nollan-Dolan standard. This is contrary to the traditional court approach of according deference to elected officials and technical experts on issues of regulatory policy. Moreover, this heightened standard will result in a huge number of costly legal challenges to local regulations.

Consider the challenges of waste disposal. Many communities impose development-impact fees on developers if a proposed project would require expanding waste-disposal sites or building new ones. Before Koontz, a developer could raise a constitutional challenge if the charges were unreasonable, but judges typically deferred to local governments in such cases.

After Koontz, developers have a potent new legal tool to challenge such charges because now the legal burden of demonstrating their validity is on the communities themselves.

In the wake of this under-the-radar ruling, the cost of protecting a community from a harmful building project now lies not with the developer but with the local residents and taxpayers. It’s hard to fathom that the framers of the Constitution would call this either fairness or justice.

John D. Echeverria is a professor at Vermont Law School.

"Justice Antonin Scalia, writing for the majority in Arizona v. Inter Tribal Council of Arizona, No. 12-71, said a federal law requiring states to “accept and use” a federal form displaced an Arizona law."

In another case...

Key Part of Voting Rights Act Invalidated

June 25, 2013

The Supreme Court struck down a central portion of the Voting Rights Act on Tuesday, effectively ending the practice in which some states with a history of racial discrimination must receive clearance from the federal government before changing voting laws.

The vote was 5 to 4, with the five conservative-leaning justices in the majority and the four liberal-leaning justices in the minority. Chief Justice John G. Roberts Jr. wrote the decision.

The majority held that Section 4 of the Voting Rights Act, originally passed in 1965 and since updated by Congress, was unconstitutional. The section includes a formula that determines which states must receive pre-approval.

The court did not strike down Section 5, which allows the federal government to require pre-approval. But without Section 4, which determines which states would need to receive clearance, Section 5 is largely without significance — unless Congress chooses to pass a new bill for determining which states would be covered.

Given the current partisan nature of Congress, reaching agreement on a new formula may be difficult.

The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement. Its central provision, Section 5, requires many state and local governments, mostly in the South, to obtain permission from the Justice Department or a federal court in Washington before making changes in laws that affect voting.

That means jurisdictions covered by Section 5 must get federal approval before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.

The Supreme Court had repeatedly upheld the law, saying that Section 5’s “preclearance requirement” was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks.

Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified. They point to high voter registration rates among blacks and the re-election of a black president as proof that the provision is no longer needed.

Civil rights leaders, on the other hand, say the law played an important role in the 2012 election, with courts relying on it to block voter identification requirements and cutbacks on early voting.

Section 5 was originally set to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.

In 2012, a divided three-judge panel of the United States Court of Appeals for the District of Columbia rejected a challenge to the law filed by Shelby County, Ala. Judge David S. Tatel, writing for the majority, acknowledged that “the extraordinary federalism costs imposed by Section 5 raise substantial constitutional concerns,” and he added that the record compiled by Congress to justify the law’s renewal was “by no means unambiguous.”

“But Congress drew reasonable conclusions from the extensive evidence it gathered,” he went on. The constitutional amendments ratified after the Civil War, he said, “entrust Congress with ensuring that the right to vote — surely among the most important guarantees of political liberty in the Constitution — is not abridged on account of race. In this context, we owe much deference to the considered judgment of the people’s elected representatives.”

The dissenting member of the panel, Judge Stephen F. Williams, surveyed recent evidence concerning registration and turnout, the election of black officials, the use of federal election observers and suits under another part of the law.

Some of that evidence, he said, “suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination,” while other evidence indicates that the formula, “though not completely perverse, is a remarkably bad fit with Congress’s concerns.”

“Given the drastic remedy imposed on covered jurisdictions by Section 5,” he wrote, “I do not believe that such equivocal evidence can sustain the scheme.”

The Supreme Court had once before considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress did not respond.

Unanimous ruling here.
Supreme Court Rules Human Genes May Not Be Patented
June 13, 2013

WASHINGTON — Isolated human genes may not be patented, the Supreme Court ruled unanimously on Thursday. The case concerned patents held by Myriad Genetics, a Utah company, on genes that correlate with increased risk of hereditary breast and ovarian cancer.

The patents were challenged by scientists and doctors who said their research and ability to help patients had been frustrated. The particular genes at issue received public attention after the actress Angelina Jolie revealed in May that she had had a preventive double mastectomy after learning that she had inherited a faulty copy of a gene that put her at high risk for breast cancer.

The price of the test, often more than $3,000, was partly a product of Myriad’s patent, putting it out of reach for some women. The company filed patent infringement suits against others who conducted testing based on the gene. The price of the test is expected to fall because of Thursday’s decision.

The court’s ruling will also shape the course of scientific research and medical testing in other fields, and it may alter the willingness of businesses to invest in the expensive work of isolating and understanding genetic material.

The central question for the justices in the case, Association for Molecular Pathology v. Myriad Genetics, No. 12-398, was whether isolated genes are “products of nature” that may not be patented or “human-made inventions” eligible for patent protection.

Myriad’s discovery of the precise location and sequence of the genes at issue, BRCA1 and BRCA2, did not qualify, Justice Clarence Thomas wrote for the court. “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” he said. “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes.”

“Groundbreaking, innovative or even brilliant discovery does not by itself satisfy the criteria” for patent eligibility, he said.

But manipulating a gene to create something not found in nature, Justice Thomas added, is an invention eligible for patent protection. He also left the door open for other ways for companies to profit from their research.

They may patent the methods of isolating genes, he said. “But the processes used by Myriad to isolate DNA were well understood by geneticists, ” Justice Thomas wrote. He added that companies may also obtain patents on new applications of knowledge gained from genetic research.

Justices Take Case on Prayer at Town Board Meetings
May 20, 2013

WASHINGTON — The Supreme Court on Monday agreed to decide cases concerning prayers at the start of town meetings and a patent dispute over heart monitors. It also issued an important administrative law decision that said the Federal Communications Commission was entitled to deference in determining the scope of its own jurisdiction.

Legislative Prayer

The case concerning prayers, Town of Greece v. Galloway, No. 12-696, came from Greece, a town near Rochester. For more than a decade starting in 1999, the town board began its public meetings with a prayer from a “chaplain of the month.” Town officials said that members of all faiths and atheists were welcome to give the opening prayer.

In practice, the federal appeals court in New York said, almost all of the chaplains were Christian.

“A substantial majority of the prayers in the record contained uniquely Christian language,” Judge Guido Calabresi wrote for a unanimous three-judge panel of the court, the United States Court of Appeals for the Second Circuit. “Roughly two-thirds contained references to ‘Jesus Christ,’ ‘Jesus,’ ‘Your Son’ or the ‘Holy Spirit.'”

Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of the government establishment of religion. The appeals court agreed. “The town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” Judge Calabresi wrote.

In 1983, in Marsh v. Chambers, the Supreme Court upheld the Nebraska Legislature’s practice of opening its legislative sessions with an invocation from a paid Presbyterian minister, saying that such ceremonies were “deeply embedded in the history and tradition of this country.”

David Cortman, a lawyer for the town, said its practices were consistent with that tradition. “Americans today should be as free as the founders were to pray,” he said in a statement. “The founders prayed while drafting our Constitution’s Bill of Rights.”

The Rev. Barry W. Lynn, the executive director of Americans United for Separation of Church and State, the group behind the lawsuit, said the Supreme Court should bar prayers in governmental settings like town meetings.

“A town council meeting isn’t a church service, and it shouldn’t seem like one,” he said in a statement. “Government can’t serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion.”

Medical Devices

The justices also agreed to consider which side bears the burden of proof in some patent disputes. The case, Medtronic Inc. v Boston Scientific Corp, No. 12-1128, concerns devices made by Medtronic that deliver electrical jolts to the heart when it fails to pump normally.

Medtronic licensed patents owned by Mirowski Family Ventures concerning various aspects of such “cardiac resynchronization therapy.” The license agreement also addressed new products developed by Medtronic, requiring it to pay royalties on ones said to be infringing the patents or to go to court for a “declaration of noninfringement.”

In 2007, the patent owner asserted various infringements, and Medtronic asked the courts to decide the matter. The question for the justices is whether a federal appeals court in Washington was right last year when it put the burden on Medtronic to prove it had not infringed the patents. In ordinary cases, the patent holder must prove infringement.

Administrative Law

The administrative law case, City of Arlington v. Federal Communications Commission, No. 11-1545, concerned a 1996 federal law that requires state and local authorities to act “within a reasonable period of time” after receiving applications for building or altering wireless facilities. In response to a request from a trade association for the wireless industry, the commission made two decisions.

First, it found that it had jurisdiction to define what a reasonable time was. Second, it said that a deadline of 90 or 150 days was generally appropriate, depending on the circumstances.

Two Texas cities, Arlington and San Antonio, said Congress had not authorized the commission to act in the first place, pointing to a part of the law that said it was not meant to limit the power of state and local governments.

The general rules in this area were set out by the Supreme Court in 1984 in Chevron v. Natural Resources Defense Council, which said that judges should defer to an administrative agency’s views when Congress itself had not spoken clearly.

That general framework, the court said Monday, applies to an agency’s determination of whether it has the power to act at all. Justice Antonin Scalia, writing for the majority, said it did. “The distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations,” he wrote, “is a mirage.”

“The false dichotomy between ‘jurisdictional’ and ‘nonjurisdictional’ agency intepretations may be no more than a bogeyman,” he continued, “but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake — the ultimate target here is Chevron itself.”

An unusual coalition, made up of Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, joined Justice Scalia’s opinion without reservation. In a concurrence, Justice Stephen G. Breyer joined the majority for the most part but suggested a less categorical approach.

Chief Justice John G. Roberts Jr., joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., issued a cutting dissent that accused the majority of abdicating judicial responsibility in favor of a federal bureaucracy with vast and unsupervised power. “It would be a bit much to describe the result as ‘the very definitiion of tyrrany,'” Chief Justice Roberts wrote, quoting a phrase from James Madison about the dangers of concentrating too much power in the same hands, “but the danger posed by the growing power of the administrative state cannot be dismissed.”

Jonathan H. Adler, a law professor at Case Western Reserve University, said the decision “could make it more difficult for both industry and public interest groups to challenge agencies for departing from their statutory authority.”

Supreme Court Declines Gun Law Case
April 15, 2013

WASHINGTON — The Supreme Court on Monday said it would not weigh in on a major Second Amendment question that has divided the lower courts: May states bar or strictly limit the carrying of guns in public for self-defense?

The justices turned down a case concerning a New York State law that requires people seeking permits to carry guns in public to demonstrate that they have a special need for self-protection. In urging the justices to hear the case, the National Rifle Association called the law “a de facto ban on carrying a handgun outside the home.”

As is their custom, the justices gave no reasons for declining to hear the case.

In November, the United States Court of Appeals for the Second Circuit, in New York, upheld the law. California, Hawaii, Maryland, Massachusetts and New Jersey have similar laws.

In 2008, the Supreme Court ruled for the first time that the Second Amendment protects an individual right to own guns, and it struck down a District of Columbia law that barred keeping guns in homes for self-defense.

“We are aware of the problem of handgun violence in this country,” Justice Antonin Scalia wrote for the majority in the decision, District of Columbia v. Heller. “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Aside from saying that total bans on the right to keep guns at home for self-defense are unconstitutional, the court has said little else about what other laws might violate the Second Amendment. On the other hand, the Heller decision did include a long list of laws and regulations that would be unaffected by the ruling. Among them were “laws forbidding the carrying of firearms in sensitive places such as schools.”

In the lower courts, very few challenges to gun laws and gun prosecutions since the Heller decision have succeeded.

A major exception came in December, just days before the Newtown, Conn., shootings, when a divided three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, struck down an Illinois law that banned carrying guns in public.

Judge Richard A. Posner, writing for the majority, said the ruling was required by the Heller decision. The court gave the Illinois legislature six months to modify the law.

Judge Posner reviewed the empirical literature about the practical consequences for crime and safety of bans on carrying guns in public, and he found it inconclusive. “Anyway,” Judge Posner wrote, “the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”

The Illinois decision is in tension with the one from New York, and such conflicts often prompt Supreme Court review. Last month, the federal appeals court in Richmond, Va., upheld the Maryland law.

The case rejected on Monday, Kachalsky v. Cacace, No. 12-845, was brought by five New Yorkers who had been denied permits to carry handguns in public. In urging the justices not to hear the case, Eric T. Schneiderman, New York’s attorney general, said the state’s permit requirement was a reasonable regulation that was consistent with the Second Amendment. The Illinois law, by contrast, he said, amounted to a blanket prohibition.

Attorney General Lisa Madigan of Illinois has said that she will wait to see what the state’s legislature does before deciding whether to ask the Supreme Court to hear the decision striking down the Illinois law.

Judge Strikes Down Age Limits on Morning-After Pill
April 5, 2013

A federal judge ruled Friday that the government must make the most common morning-after pill available over the counter for all ages, instead of requiring a prescription for girls 16 and younger. In his ruling, he also accused the federal government of “bad faith” in dealing with the requests to make the pill universally available, and said its actions had been politically motivated.

The decision, on a fraught and politically controversial subject, comes after a decade-long fight over who should have access to the pill and under what circumstances. And it counteracts an unprecedented move by the Obama administration’s Health and Human Services secretary, Kathleen Sebelius, who in 2011 overruled a recommendation by the Food and Drug Administration to make the pill available for all ages without a prescription.

In a decision in a lawsuit filed by advocates, the judge, Edward R. Korman of Federal District Court, ruled that the government’s refusal to lift restrictions on access to the pill was “arbitrary, capricious, and unreasonable.”

Judge Korman ordered the F.D.A. to lift any age and sale restrictions on the pill, Plan B One-Step, and its generic versions, within 30 days.

“More than 12 years have passed since the citizen petition was filed and 8 years since this lawsuit commenced,” the judge wrote. “The F.D.A. has engaged in intolerable delays in processing the petition. Indeed, it could accurately be described as an administrative agency filibuster.”

He added, “The plaintiffs should not be forced to endure, nor should the agency’s misconduct be rewarded by, an exercise that permits the F.D.A. to engage in further delay and obstruction.”

The F.D.A. and the Department of Health and Human Services declined to comment on the ruling or the judge’s harsh criticisms on Friday morning or to indicate whether the government would file an appeal, saying the decision, which was issued in the Eastern District of New York, was being reviewed. “The Department of Justice is reviewing the appellate options and expects to act promptly,” said Allison Price, a department spokeswoman.

Scientists, including those at the F.D.A., have been recommending unrestricted access for years, as have major medical groups, including the American Medical Association, the American Congress of Obstetricians and Gynecologists and the American Academy of Pediatrics. They contend that the restrictions effectively keep many adolescents and younger teenagers from being able to use a safe drug in a timely way to prevent pregnancy, which carries greater safety risks than the morning-after pill.

In 2011, the F.D.A. commissioner, Dr. Margaret A. Hamburg, issued a statement saying that after rigorous study, it was safe to sell Plan B One-Step over the counter for all ages. But she was overruled by Ms. Sebelius, the Health and Human Services secretary, the first time such a public countermanding had ever occurred.

In her decision, Ms. Sebelius said that Plan B’s manufacturer had failed to study whether the drug was safe for girls as young as 11, about 10 percent of whom are physically able to bear children. But her decision was widely interpreted in a political context because emergency contraception has become an issue in the abortion debate and because allowing freer access to adolescents would prompt critics to accuse the Obama administration of supporting sexual activity for girls of that age. At the time, President Obama supported Ms. Sebelius’s decision, saying, “I will say this, as the father of two daughters: I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine.”

He added: “And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old going into a drugstore should be able — alongside bubble gum or batteries — be able to buy a medication that potentially, if not used properly, could end up having an adverse effect. And I think most parents would probably feel the same way.”

The drug’s manufacturer, Teva Pharmaceuticals, declined to comment on the court decision handed down Friday. As far back as 2003, the manufacturer had petitioned the F.D.A. for Plan B to be available over the counter.

Plan B was approved in 1999 as a prescription-only product, and in 2001, the Center for Reproductive Rights filed a citizens petition for it to be made available over the counter or without a prescription. Scientists, including an expert advisory panel to the F.D.A., gave early support to that request. But top F.D.A. officials rejected the application because, some said later, they worried they would be fired if they approved it.

After years of F.D.A. delay on a promise to reconsider the morning-after pill decision, and as the lawsuit by advocates wound its way through the courts, the Bush administration in 2006 allowed over-the-counter sales to women 18 and older but required a prescription for those 17 and younger. Then in 2009, Judge Korman issued a ruling in the court case directing that the pill be made available over the counter for those 17 and older. In his 2009 ruling, the judge said the government’s actions on the pill had been driven by politics and not science.

In his ruling on Friday, Judge Korman also raised the issue of politics, saying that Ms. Sebelius’s decision was “politically motivated, scientifically unjustified, and contrary to agency precedent.”

Plan B One-Step consists of one pill with the active ingredient levonorgestrel, which can block fertilization if taken within 72 hours of sexual intercourse. It reduces the chance of pregnancy to one in 40; without the pill, women have about a one in 20 chance of becoming pregnant after unprotected sex. Two other drugs — Next Choice and Levonorgestrel Tablets — contain levonorgestrel in a two-pill version. The judge’s order also applies to those pills, although he said that if the F.D.A. " actually believes there is any significant difference between the one- and two-pill products, it may limit its over-the-counter approval to the one-pill product.”

High court poised to upend civil rights policies
New London DAY
By HOPE YEN, Associated Press
Mar 31, 9:03 AM EDT

WASHINGTON (AP) -- Has the nation lived down its history of racism and should the law become colorblind?

Addressing two pivotal legal issues, one on affirmative action and a second on voting rights, a divided Supreme Court is poised to answer those questions.

In one case, the issue is whether race preferences in university admissions undermine equal opportunity more than they promote the benefits of racial diversity. Just this past week, justices signaled their interest in scrutinizing affirmative action very intensely, expanding their review as well to a Michigan law passed by voters that bars "preferential treatment" to students based on race. Separately in a second case, the court must decide whether race relations - in the South, particularly - have improved to the point that federal laws protecting minority voting rights are no longer warranted.

The questions are apt as the United States closes in on a demographic tipping point, when nonwhites will become a majority of the nation's population for the first time. That dramatic shift is expected to be reached within the next generation, and how the Supreme Court rules could go a long way in determining what civil rights and equality mean in an America long divided by race.

The court's five conservative justices seem ready to declare a new post-racial moment, pointing to increased levels of voter registration and turnout among blacks to show that the South has changed. Lower federal courts just in the past year had seen things differently, blunting voter ID laws and other election restrictions passed by GOP-controlled legislatures in South Carolina, Texas and Florida, which they saw as discriminatory.

"Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes," Justice Antonin Scalia said in oral arguments earlier this year, suggesting that it was the high court's responsibility to overturn voting protections overwhelmingly passed by Congress in 2006.

Justice Ruth Bader Ginsburg, part of the court's more liberal wing, countered that while conventional discriminatory tactics may have faded, new ones have emerged. "Congress said up front: We know that the (voter) registration is fine. That is no longer the problem. But the discrimination continues in other forms," she said.

The legal meanings of "equality," "racism" and "discrimination" have been in flux since at least 1883, when justices struck down a federal anti-discrimination law, calling it an unfair racial advantage for former black slaves. Today, justices face the question of whether the nation has reached equality by a 1960s definition or some new standard.

By some demographic measures, America has reached a new era. But the latest census data and polling from The Associated Press also show race and class disparities that persist.

President Barack Obama, the nation's first black chief executive, was re-elected in November despite a historically low percentage of white supporters. He was aided by a growing bloc of blacks, Hispanics, Asian-Americans and gays, and a disproportionate share of women, who together supported him by at least a 2-to-1 margin.

Another sign of shifting times: Among newborns, minorities outnumbered whites for the first time last year, the Census Bureau reported. "The end of the world as straight white males know it," one newspaper headline said on the morning after the November election.

Still, issues linger by race, age and class:

-Jobs and income. Black poverty has fallen by half since 1959, to 27.6 percent, but is still nearly three times the poverty rate of whites. Black and Hispanic men are twice as likely as whites to work in the low-paying service sector. Since the 1970s, the unemployment rate for blacks has remained double that of whites.

-Wealth. The wealth gap between whites and minorities is at its widest since 1984. Predominantly younger minorities were hit hard when home prices fell, while older whites were more likely to invest in 401(k) retirement plans and stocks, which have rebounded since the recession. The median net worth of white households was $113,149 in 2009, compared with $6,325 for Hispanics and $5,677 for blacks.

-Class and education. By some measures, the gap between rich and poor has stretched to its widest since 1967. Globalization and automation have eliminated many mid-skill jobs, leaving a polarized pool of low-wage work and high-skill jobs requiring advanced degrees. About 40 percent of whites age 25-29 graduate from college, compared with 15 percent for Latinos and 23 percent for blacks.

-Racial bias. Prejudice against blacks worsened slightly in the four years since Obama was first elected in 2008, according to an AP poll. In all, 51 percent of Americans expressed explicit anti-black attitudes, compared with 48 percent in 2008. Questions designed to ferret out subconscious bias raised the proportion with anti-black sentiments to 56 percent, and the share of people expressing pro-black attitudes fell.

Roderick Harrison, a demographer who is black, says he felt pride in Obama's re-election, which to him reaffirmed a historic achievement not only for black Americans but also a broader coalition of racially diverse groups. Still, he worries that demographic change and Obama's success may lead to a tipping point in the opposite direction, where people in the United States are led to assume racial equality has fully arrived.

The strength of minority support behind Obama was aided by the 1965 Voting Rights Act and other protections, he said.

The term "minority" often refers to an unequal or disadvantaged status and isn't always about numbers or counts, said Harrison, a former chief of racial statistics at the Census Bureau. The District of Columbia, Hawaii, California, New Mexico and Texas already have populations of racial and ethnic minorities that collectively add up to more than 50 percent. Across the U.S., more than 11 percent of counties have tipped to "majority-minority" status.

"Minority status is a matter of exclusion from full participation in society, remaining long after a nation becomes `majority minority,'" Harrison said.


To Bradley Poole, 21, a senior at the University of Texas at Austin, racial progress is measured by the little things. An advertising major, Poole became a member and then president of the school's Black Student Alliance, seeking camaraderie after noticing he often was the only African-American in his classes.

"I definitely feel the difference," he said.

The university automatically grants admission to the top 10 percent of students in each of the state's high schools. That helps bring in students of different backgrounds because Texas high schools are highly racially segregated, reflecting decades of segregated neighborhoods.

In a state where blacks now make up 11.5 percent of the population and Hispanics 38 percent, the university's enrollment of 50,000 students never rose above 3 percent to 4.5 percent black and 13 percent to 17 percent Hispanic. So in 2004 it decided to allow students who miss the 10 percent cutoff to be considered for admission based on a range of socioeconomic factors, including race.

The share of black students has since increased slightly to 6 percent, while Hispanic enrollment rose to 26 percent.

The university's affirmative action plan is being challenged in the Supreme Court by Abigail Fisher, a white student who missed the cutoff and was rejected. Fisher says she was denied fair consideration because of her race.

A 2003 Supreme Court opinion said universities may consider race only as one of several factors to promote diversity. The court said diversity benefits everyone because in a global economy it fosters leaders who can relate to people of different backgrounds.

In the last week, justices also agreed to take up a second affirmative action case this year, deciding whether states may pass laws that restrict the use of race preferences in college admissions. That case involves an appeal to a lower court ruling that found a 2006 voter-approved ban in Michigan unconstitutional, reasoning that such bans put minorities at a disadvantage.

The justices' decision to hear the Michigan case next fall - with their decision in the Texas case still to be announced this spring - suggests that the court will not decide in the Texas case to eliminate affirmative action programs in higher education.

In the seven or so states that enacted bans on affirmative action at their public universities, freshman enrollments of blacks and Hispanics almost always fell afterward - as much as 50 percent at UCLA and the University of California, Berkeley - although in some cases they later rebounded. Those states now include Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington. A Supreme Court ruling that further restricts affirmative action could shake up college admissions policies nationwide, perhaps shifting focus to low-income students or low-performing schools.

Before opting to enroll at Texas, Poole says he considered attending a mostly white university in Iowa and a historically black college in Louisiana. The college course he now values the most: an advertising seminar that he attended along with a Hispanic, a female student-athlete and an Asian-American. No one in that class was a "minority," he said, and there was a range of perspectives.

Outside class, Poole says his organization has experienced racial incidents. One white student ran up in "blackface" to where members were gathered on campus, daring them to respond. A legal brief filed by the National Association for the Advancement of Colored People on behalf of Poole's group lists other racial incidents in recent years, some of which led to suspensions or public apologies.

"Racial diversity is a conversation we need to have," he said.


Not since the tumultuous 1960s have U.S. ideals of equality been more closely contested. Legal analysts say a Supreme Court holding of a colorblind Constitution, either as a matter of law or practical effect, could begin to emerge in two rulings on voting rights and affirmative action due out by late June. A third ruling in the Michigan affirmative action case will come next term.

The five conservative justices who make up a majority could overturn the 2003 opinion or take a less dramatic step. The court may opt for tighter restrictions that make it difficult for colleges to consider race or rule narrowly that in a situation like Texas, its unique top 10 percent plan is enough on its own to achieve diversity.

In the court's other racial case, a conservative majority may declare the 1965 Voting Rights Act constitutionally flawed for its focus on racism in the South but leave it up to lawmakers to sort it out.

The court could also find a less sweeping, more technical way of deciding the voting rights case, much as they did four years ago. Back then, Chief Justice John Roberts suggested Congress should update the law to reflect improved conditions in the South. Congress hasn't done so.

Prominent legal bloggers are already warning of sharp public reaction, especially if justices strike down federal voting protections.

"If the court rules in a conservative direction, this will be a pivotal year with regard to race in the Constitution and a year that could have a devastating effect on racial diversity," adds Erwin Chemerinsky, dean of the University of California, Irvine law school.


Has the country put its racist past behind it? That question is at the core of the challenge to the Voting Rights Act. The arguments before the court raised questions about whether new, more subtle forms of voting discrimination have taken the place of Jim Crow laws.

In 1870, the Constitution guaranteed blacks the right to vote. But for many decades afterward, whites in the post-slavery South used poll taxes and literacy tests to block African-Americans from voting.

That changed in 1965 with enactment of the Voting Rights Act, which let minorities file lawsuits against voter discrimination. Section 5 of that law went even further, requiring nine states, mostly in the South, and scores of counties and townships in seven other states, all with histories of disenfranchisement, to get federal approval before making any election change. Changes can include everything from a different poll location to a new political redistricting map.

The voting act was renewed by Congress in 2006 for another 25 years. The Justice Department and the federal courts last year used Section 5 to block voter restrictions in South Carolina, Texas and parts of Florida. That saved hundreds of thousands of votes that would otherwise have been lost in November, according to the Brennan Center for Justice. Many were cast by blacks and Hispanics who turned out for Obama.

Lawyers for Shelby County, Alabama, which is challenging Section 5, say the tables have turned in a nation that is now much more racially diverse, with minority voters possibly holding an unfair advantage.

"You have a different constituency from the constituency you had in 1964," attorney Bert Rein told the justices. "Senators who see that a very large group in the population has politically wedded themselves to Section 5 are not going to vote against it."

Richard Hasen, a law professor at the University of California, Irvine, and author of Election Law Blog, says the "smart money" now is on the Supreme Court striking down Section 5, leading to consequences for minority voters such as "more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions."

But if the court strikes down "a crown jewel of the civil rights movement," he said, that could spark a public backlash that sends Congress back to the drawing board, with any resulting new law applying equally to all states.


Associated Press writer Mark Sherman and AP Director of Polling Jennifer Agiesta contributed to this report.

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Justices Take New Case on Affirmative Action
March 25, 2013

WASHINGTON — The Supreme Court on Monday added a new affirmative action case to its docket even as it is considering a major challenge to the University of Texas’s race-conscious admissions program.

The new case, Schuette v. Coalition to Defend Affirmative Action, No. 12-682, concerns a voter initiative in Michigan that banned racial preferences in admissions to the state’s public universities. In July, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that the initiative, which amended the state’s Constitution, violated the federal Constitution’s equal protection clause.

The Texas case, Fisher v. University of Texas, No. 11-345, concerns whether that state is allowed to use affirmative action. The new case, in the words of a dissenting judge, asks whether a state denies equal treatment by mandating it.

The appeals court decision was decided by an 8-to-7 vote. The eight judges in the majority were all nominated by Democratic presidents. All of the seven judges in dissent were nominated by Republican presidents. (There was a wrinkle: Judge Helene N. White, who was in the majority, was initially nominated by President Bill Clinton and was later renominated by President George W. Bush as part of a compromise involving several nominations.)

The new case will be considered in the term that starts in October. A decision in the Texas case is expected shortly.

Justice Elena Kagan recused herself from the new case, as she had from the earlier one, apparently because she worked on them as United States solicitor general.

Background on Same-Sex Marriage Case at Supreme Court
March 25, 2013

WASHINGTON – The Supreme Court is scheduled to hear an hourlong argument Tuesday morning over the constitutionality of Proposition 8, California’s ban on same-sex marriage. Here is a look at the background of the case, Hollingsworth v. Perry, No. 12-144, the issues it raises, the lawyers who will argue it and the possible outcomes.

What is at stake? If the court is to establish a constitutional right to same-sex marriage, it will be in this case and not in the narrower one to be argued Wednesday, about the federal Defense of Marriage Act.

How did the case start? In 2008, just months after the California Supreme Court endorsed same-sex marriage, the state’s voters amended the state’s Constitution to repudiate the ruling and ban such unions. Two prominent lawyers, Theodore B. Olson and David Boies, challenged the ban as a violation of the federal Constitution on behalf of two same-sex couples.  The lawyers were ideological opposites who had faced off in Bush v. Gore, the Supreme Court decision in late 2000 that delivered the presidency to George W. Bush. Some gay rights activists worried that their legal strategy was too aggressive.

After a trial, a judge in San Francisco struck down Proposition 8 in a broad ruling whose logic would apply to bans around the nation. California officials did not appeal the ruling against them.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that proponents of Proposition 8 had standing to appeal the judgment against the state. The court then affirmed the decision but on a narrower ground, saying voters were not entitled to withdraw a constitutional right once it had been established by the state Supreme Court.  The reasoning of the appeals court decision, calculated to appeal to Justice Anthony M. Kennedy, would not directly threaten bans in other states.

What is the Obama administration’s position? Solicitor General Donald B. Verrilli Jr. urged the Supreme Court to strike down Proposition 8, focusing on a ground that would apply to California and seven other states. He said it violated the Constitution’s equal protection clause to confer all the benefits and burden of marriage on gay and lesbian couples through civil unions but withhold the label “marriage.”

How long will the argument last? The argument is scheduled for one hour. It will probably start at around 10:15 a.m. Eastern time, after one or more of the justices summarize decisions released that day. In major cases, Chief Justice John G. Roberts typically allows lawyers a little extra time, so the arguments may not conclude until 11:30 or so. Transcripts and audio recordings will be available by around 1 p.m.

Who is arguing? Charles J. Cooper, a lawyer for the proponents of Proposition 8, will have half an hour. He will probably get questions about his clients’ standing and the reasons offered to support the ban on same-sex marriage. Mr. Olson, representing the couples who are challenging the ban, has 20 minutes. He will most likely be asked why the issue should be withdrawn from public debate and a fast-moving political process. Mr. Verrilli will have 10 minutes, and he will probably be asked about shifts in the Obama administration’s positions.

What legal standard will the Supreme Court use? In ordinary cases, courts considering whether a federal law violates equal protection principles merely ask whether the law can be justified by a rational reason. That is a low bar, though several courts have struck down laws discriminating against gay men and lesbians under that standard. Gay rights advocates are hoping that the Supreme Court will embrace a more robust standard of review, “heightened scrutiny,” which requires a showing that the challenged law is “substantially related to an important government objective.” Victory on that point could put all same-sex marriage bans at risk.

What justifications have supporters of Proposition 8 offered? They say that preserving the traditional definition of marriage will “further society’s vital interests in responsible procreation and child rearing.” Those interests would be undermined, they say, by “officially redefining marriage as a genderless institution.” It is rational, they add, to proceed with caution in changing the definition of marriage, to respect societal judgments made through the democratic process.

How do supporters of same-sex marriage respond? They say that allowing gay and lesbian couples to marry would not make it any more likely that straight couples would act irresponsibly. They add that courts must protect the fundamental rights of disfavored minorities.

Who are the justices to watch? Justice Kennedy probably holds the decisive vote, and he is the author of the two leading gay rights cases. But he is notoriously hard to read. Chief Justice John G. Roberts Jr. may be intrigued by the standing question, and his questions on that issue may suggest whether he may find dismissal on that ground an attractive offramp.

What are the possible outcomes? The court may say the Constitution requires all states to allow gay and lesbian couples to marry. At the other extreme, the court may say the Constitution is silent on the question, leaving states free to allow or reject same-sex marriage. (There is no possibility that the court would ban same-sex marriage in places that choose to permit it.)

There are also intermediate possibilities. The court could adopt a rationale that would apply only to California along the lines of the one endorsed by the Ninth Circuit. It could adopt the “eight state solution” suggested by the Obama administration. Or it could dismiss the case for want of standing, which would probably effectively allow same-sex marriages in California, the nation’s most populous state.

Supreme Court to Take Up Gay Marriage
December 7, 2012

WASHINGTON — The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. Another case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The court’s move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After last month’s elections, the number of states authorizing same-sex marriage increased by half, to nine.

The court’s docket is now crowded with cases about the meaning of equality, with the new cases joining ones on affirmative action in higher education and the future of the Voting Rights Act of 1965. Decisions in all of those cases are expected by June.

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California’s voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.

Judge Stephen R. Reinhardt, writing for the majority, relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote.

That reasoning, he added, meant that the ruling was confined to California.

“We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” he wrote.

“For now,” he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”

The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place unless voters there choose to revisit the question. It could affirm on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who were married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of some $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the federal appeals court in New York struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The New York decision was the first from a federal appeals court to say that laws treating same-sex couples differently must be subjected to heightened judicial scrutiny.

The Windsor case made its way the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, also striking down the law, even before the appeals court had ruled.

There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., provided the court with a number of other options, including Windsor, probably partly to make sure a case of such importance could be heard by a full nine-member court.

The Obama administration’s attitude toward same-sex marriage and the 1996 law has shifted over time. Until last year, the Justice Department defended the law in court, as it typically does all acts of Congress. In February 2011, though, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court, though he added that the administration would continue to enforce the law.

In May of this year, Mr. Obama announced his support for same-sex marriage.

After the Justice Department stepped aside, House Republicans intervened to defend the law. They are represented by Paul D. Clement, a former solicitor general in the Bush administration.

The new case is thus likely to feature a rematch between Mr. Clement and Mr. Verrilli, who were antagonists earlier this year in the arguments over Mr. Obama’s health care law.

Two Florida dog sniffing cases in Oct.

Will Privacy Go to the Dogs?
16 October 2012

New Haven

THIS Halloween, the United States Supreme Court will devote its day to dogs. The court will hear two cases from Florida to test whether “police dog sniffs” violate our privacy rights under the Fourth Amendment to the Constitution. These two cases have not yet grabbed many headlines, but the court’s decisions could shape our rights to privacy in profound and surprising ways.

The Fourth Amendment protects the right of the people to be free from “unreasonable searches and seizures.” Ordinarily, unless the police trespass or otherwise intrude upon a reasonable expectation of privacy, they need not have probable cause or a warrant to justify their investigative activity. For decades now, the court has struggled with what it means for a person to have a “reasonable expectation of privacy” — especially when the police investigate with sense-enhancing means or technology.

One of the new cases asks the court to clarify how accurate a dog must be in terms of its past identification of contraband — for, as Justice David H. Souter once warned in dissent, “The infallible dog, however, is a creature of legal fiction.”

My wife and I learned this firsthand at the Supreme Court itself several years ago. We were visiting the court for a reunion dinner of former law clerks of Justice Harry A. Blackmun. My mistake was to drive a car in which our dog — a tennis-ball-loving Australian shepherd — often rode. As we drove up to the back gate of the court to enter its highly secure underground parking garage, an officer emerged from a guard shack with a fearsome bomb-sniffing German shepherd and circled our car. The bomb dog suddenly perked up, and the officer coldly instructed me to open the trunk of my car. I watched as the court’s canine rose up on its haunches — tail wagging — and snagged from inside one of my dog’s prized tennis balls. No bombs or contraband were found.

The second of the court’s new dog cases asks if the police may take a drug-sniffing dog to the front porch of a home to sniff for evidence of marijuana inside. The court has always accorded special privacy protection for people’s homes. In 2001, the court ruled, in an opinion written by Justice Antonin Scalia, that police officers violated a homeowner’s privacy when they parked across the street from a home and, without a warrant, used a thermal imaging device to scan the outside of the house for signs of unusual heat inside that might be caused by high-intensity lighting, which is often used to grow marijuana.

If the police can’t thermal-scan your home from the street, why let them dog-scan it from your front porch? The government argues that a dog is alerted only by illegal contraband, while a thermal imager is set off more generally by “innocent” and “guilty” heat of all kinds coming from a home — whether from grow lights or from, as Justice Scalia noted in the thermal imager case, “the lady of the house” as she “takes her daily sauna and bath.”

But, arguably, this distinction is misplaced. If the court rules for the government in the home-sniff case, it is hard to see why the police could not station drug-sniffing dogs outside the entrances to every school, supermarket and movie theater as a routine form of drug interdiction. Dog sniffs would never involve a privacy intrusion and therefore would not trigger the requirement that the police obtain a warrant or have individual suspicion.

Moreover, today’s dogs will give way to tomorrow’s high-tech contraband-scanning devices that, under the reasoning pressed in the dog cases, would free the government to conduct routine scans of people’s homes or their bodies for all manner of contraband (or possibly for noncontraband, like marijuana grow lights, that are most commonly associated with illegality).

In the meantime, those of us who neither live in gated communities nor build gates to keep the police from our porches will retain much less privacy protection in our homes, despite the court’s past assurance that “every man’s house is his castle” and even the “poorest man may in his cottage bid defiance to all forces of government.” This is the danger of basing the Constitution’s protection on the efficacy of a dog’s nose or the latest high-tech sensing device rather than on the privacy of the intimate space that a dog or device allows the police to invade.

On Oct. 31, the court will have the chance to preserve a long-held tenet of American privacy. The right choice is to affirm our rights in our homes and our persons to be free, in the absence of emergency circumstances, from the warrantless use of dogs and sense-enhancing technology.

Jeffrey A. Meyer is a professor at Quinnipiac University School of Law and a visiting professor at Yale Law School.