24 June 2013

Supreme Court final week preview and predictions (June 24 update)

There are 6 remaining cases in the Supreme Court's current term. Here are the important questions in each case:

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Prediction: Chief Justice Roberts will write for a 5-4 majority that the VRA is unconstitutional.

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

Prediction: A majority of the Court will decide that Hollingsworth does not have standing to defend Prop 8. As a result, the Court will not rule on the merits. Same sex marriage will remain legal in California, but the ruling will be limited and won't apply elsewhere.

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 3) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Prediction: BLAG will have standing, and the Court will strike down DOMA. However, I won't be surprised to see a plurality opinion on the reasoning.

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Prediction: A narrow majority of the Court will rule that denial of the development permit was not a taking.

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

Prediction: Personally, I've love to see the Court reverse the South Carolina Supreme Court's ruling, but I am pessimistic that this will happen. It seems more likely they will affirm and let the biological father keep the child.

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

Prediction: The Court will reverse in a unanimous decision.
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