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Author: Lisa McElroy

By on Feb 28, 2011 at 9:15 am
After a few weeks of relative quiet at the Court, this week offered Court watchers lots to talk about.  Thanks to four oral arguments and four opinions, plus lots of other Court-related activity, there’s plenty to explain in Plain English.

By on Jan 31, 2011 at 9:13 am

Last week's opinions continued the unanimity trend at the Court. They included decisions about employment discrimination and retaliation, appeals from the denial of summary judgment, and deference to administrative agency interpretations of federal regulations....

By on Dec 9, 2010 at 4:29 pm
However cold it might have been this week in Washington, D.C. (and if you’re not on the East Coast, let me tell you – it is cold), action at the Court was hot.  Yes, now that we are a full two months into the Term, it feels like we never left – just in time for the Christmas recess.   The week started off big when the Court granted cert. in Wal-Mart v. Dukes, the class action employment discrimination case against the retail giant that Court watchers have been eyeing for months.    The Court won’t be considering whether Wal-Mart actually discriminated against its female employees; instead, it will hear arguments about the class action mechanism itself.  As I’ve explained in previous Plain English posts, a class action is a type of lawsuit where many plaintiffs with similar claims join together and bring one suit, rather than many individual ones.  A few “named plaintiffs” whose claims and experiences are typical of the rest of the class assert the legal rights of all the other class members.  Courts often see class actions as efficient – after all, why hear pretty much the same case a thousand times if all one thousand plaintiffs agree to accept a single outcome?  Plaintiffs see class actions as advantageous when their individual claims are too small to warrant the time and expense of a trial and when they can afford to hire a lawyer (and get a lawyer interested in their case) en masse but not individually.  Lawyers often see class actions as lucrative:  if they get a whole bunch of plaintiffs together and take a percentage of their damage awards for a fee, then they can work hard but get paid well for it.  Of course, there are all kinds of criticisms of class actions, too, among them the concern that the lawyers end up making much more money than the plaintiffs do, but federal procedure rules allow class actions so that plaintiffs can receive something they want and need:  an opportunity to bring their cases in court.

By on Dec 3, 2010 at 7:27 am
December is here, and by this time of year, we are starting to see the Court multitask, so to speak – issuing opinions in cases heard over the past two months, hearing arguments in cases granted several months ago, and granting cert. in new cases.  Earlier this week, the Court decided a controversial case unanimously, and it heard arguments in several others.  Let’s discuss – in Plain English. A key concept for Court watchers to understand is the difference between finding facts and applying law.  Federal district courts are fact finders; they decide what happened and who did what in a legal dispute.  Like other appellate courts, the Supreme Court relies on the facts that have already been established – a factual “record” – and decides how the law properly applies to those facts.  In some cases, when the law is unclear or is still developing, the Court must articulate new legal standards.  Then it is up to the lower courts to apply those standards in future cases. 

By on Nov 22, 2010 at 11:36 am
If it feels like last week was a quieter week at the Court, you are probably right; there were no arguments and no Conference.  But before all of us take a much-needed holiday break, we can review what did happen at the Court last week.  First, the Court issued its first signed opinion of the new Term, in two cases about criminal sentences:  Abbott v. United States and Gould v. United States.  Considering that these cases were only argued just over a month ago, it’s not surprising that the decision was unanimous (with Justice Kagan recused).  In other words, all of the Justices saw this one the same way, and Justice Ginsburg (who is known for being a speedy writer) wrote the opinion quickly.

By on Nov 13, 2010 at 10:43 pm
Last week, I wrote about several fascinating oral arguments at the Court.  As Dahlia Lithwick commented with her signature dry humor,  some of this week’s arguments were dense and technical.  On the other hand, the Justices also heard arguments about the immigration status of children born outside the U.S. to a U.S. citizen, whether medical residents are “students” for purposes of payroll taxes, and the interaction of copyright law and the “gray market” for products purchased abroad.

By on Nov 7, 2010 at 10:32 pm
If you are a Court watcher, or even if you aren’t, this was a terrific week at the Court:  who can resist a week of arguments about real issues that matter to real people?  Video-game violence . . . tax credits for donations to religious schools . . .  prisoners’ rights to sue for deprivation of their religious freedoms.  Yes, this week of arguments had something for everyone. Not surprisingly, my Plain English inbox was filled this week with questions about   Schwarzenegger v. EMA, the violent video-game case out of California and the Ninth Circuit.  At issue was a California law banning the sale of such games to minors.  The video-game industry argued that, unlike similar laws banning the sale of pornography to minors, the state’s ban on video-game sales and rentals violates the First Amendment.  In the oral argument, the Justices considered kids’ exposure to violence in many contexts – including fairy tales, movies, and comic books  – and questioned whether there was a societal consensus (as there is with sexually explicit materials) that violence is inappropriate for kids.  Some Justices wondered whether parents, rather than the state, should make that decision. But it was a judicial philosophy – “originalism” – that caught the attention of many constitutional gurus during this oral argument.  As has been widely reported, Justice Scalia emphasized that although it was “always understood” that freedom of speech did not include obscenity, “[i]t has never been understood that the freedom of speech did not include portrayals of violence.”  That led Justice Alito – in a remark that he may not have intended to be funny, but which brought the house down – to explain to the lawyer arguing for the state:  “what Justice Scalia wants to know is what James Madison thought about video games . . . did he enjoy them?”  Justice Scalia shot back:  “No, I want to know what James Madison thought about violence.”