Where Repeat Where Are the SCOTUS School Cases ** The World Wonders
Another SCOTUS opinion day without decisions in PICS v. Seattle Sch. Dist. and Meredith v. Jefferson County, the big Fourteenth Amendment challenges to officials’ use of race in assigning students to the Seattle and Louisville public schools. Informed speculation identifies Chief Justice Roberts as the likely author of the majority opinion — or at least as having assigned himself the draft majority opinion at conference. It’s been six and a half months now since argument.
Different possible reasons for the wait: (1) someone flipped after the draft was circulated, requiring the 5-4 draft majority to be rewritten as a dissent, and vice-versa; (2) the Court has splintered, yielding a mere plurality opinion plus a crowd of separate writings; (3) one or more Justices is working up an unusually thorough, blockbuster dissent to read from the bench; and/or (4) (the least likely) the Chief Justice is taking extra time to work up an unusually thorough, blockbuster majority opinion that not only strikes down the school programs but reaches out to abrogate the 5-4 opinion in Grutter v. Bollinger, the SCOTUS precedent closest to the issues in PICS and Meredith.
Or maybe they’ve just been busy clearing out less high-profile cases, like today’s three.
Credit Suisse Securities v. Billing (by former admin law prof Stephen Breyer) says the federal securities laws implicitly preclude the filing of antitrust conspiracy claims premised on alleged hanky-panky by IPO underwriters when that conduct is closely regulated by the SEC. There are some interesting undercurrents here. For one thing, see how fellow former admin law prof Antonin Scalia joins fully in Breyer’s not-so-textualist policing of agency turf boundaries in the interstices of statutes. Justice Stevens writes separately to criticize language in the majority opinion that echoes Twombly’s rumblings about the dangers of antitrust litigation. And Justice Thomas concisely dissents, arguing that when the securities statutes’ savings clauses say that remedies under the securities laws are “in addition to any and all other rights and remedies that may exist in law or in equity,” that “all” includes antitrust remedies (which existed well before the securities statutes were enacted). Textualism scholars, here’s Billing in a nutshell: for Justice Scalia, precedent plus concern for the smooth functioning of the administrative state can trump strict textualism; for Justice Thomas, they don’t.
Brendlin v. California holds that when police stop a car carrying a passenger, they have “seized” the passenger for Fourth Amendment purposes as well as the driver. It is pleasant to note that this common-sense holding was unanimous. (This is a first strike against Tom Goldstein’s (somewhat hedged) “conservatives are going to sweep the remaining cases 5-4” hypothesis.)
Powerex Corp. v. Reliant Energy Servs. combines the federal removal statute with appellate jurisdiction-stripping to produce a brew that’s fairly heady for Civ Pro and Fed Courts nerds, and maybe textualism buffs, but few others. Justice Scalia is plenty textualist about 28 U.S.C. 1447(d), the removal statute’s bar on appeals of orders remanding cases to state court, and he is aggravated by the various exceptions the Court has recognized (see his dissent a few months ago in Osborn v. Haley). Here he gets to write a majority opinion rejecting appellate jurisdiction over a remand order, as the Court holds 7-2 that when a federal district court remands a case to state court on the ground that the remaining cross-claim defendant is not really an “organ of a foreign state” (which would have entitled it to stay in federal court under the Foreign Sovereign Immunities Act of 1976 (FSIA)), that remand order is non-appealable. Have fun in state court. Justice Breyer dissents, joined by Justice Stevens, pointing out that under FSIA, a would-be “foreign state” entity loses more than just a federal forum when its case gets remanded to state court, and arguing that this supports an exception to the usual bar on appealing remand orders. This one is a pretty clean example of statutory textualism vs. purposivism.
More opinions Thursday.
And five points to the first commenter who identifies the allusion in the title.