24 June 2013

Supreme Court final week summary (June 24 update)

Here are summaries from today's five opinions. The Supreme Court will be back tomorrow morning for more opinion announcements. Click on the name of the case for a link to my "Plain English" page for that case.

Fisher v. University of Texas at Austin: Does the University's use of race in admissions decisions as a means of affirmative action violate the Equal Protection Clause of the Fourteenth Amendment?

Prediction: The convention wisdom (which I see no reason to depart from) suggests that the Court will rule 5-3 (Justice Kagan is recused) that the affirmative action policy violates the Fourteenth Amendment. Opinion author is likely to be Justice Kennedy.

Result: In a 7-1 decision (with Justice Kagan recused), Justice Kennedy wrote for the Court that because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. As a result, the case will return to the Fifth Circuit for another look. The practical impact of this decision is that the Court did not directly rule on the merits--this is a compromise decision that will be taken up again next term in a different case

Mutual Pharmaceutical Co. v. Bartlett: Did the the First Circuit Court of Appeals err when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products?

Prediction: Justice Alito will write for a 5-4 majority and reverse the First Circuit.

Result: Justice Alito wrote for a 5-4 majority that State-law design-defect claims that turn on the adequacy of a drug’s warnings are preempted by federal law under PLIVA.

United States v. Kebodeaux: Did the court of appeals err in conducting its analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender? and (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?

Prediction: The Court will reverse the Fifth Circuit, finding that Congress did not have the authority to require the defendant to register as a sex offender.

Result: SORNA’s registration requirements as applied to Kebodeaux fall within the scope of Congress’ authority under the Necessary and Proper Clause.

University of Texas Southwestern Medical Center v. Nassar: Does the retaliation provision of Title VII of the Civil Rights Act of 1964 and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)?

Prediction: A 5-4 majority will reverse and find that the retaliation provision requires a plaintiff to prove but-for causation.

Result: A 5-4 majority reversed and found that Title VII retaliation claims must be proved according to traditional principles of but-for causation.

Vance v. Ball State University: Does another employee who was responsible for assigning work on a day-to-day basis, but wasn't otherwise responsible for hiring, firing, transferring, demoting, disciplining, or promoting decisions qualify as "supervisor" which would subject the University to harassment claims?

Prediction: A 7-2 majority will affirm the lower court's decision.

Result: An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.
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