Briefing Room


Faculty experts weigh in on recent U.S. Supreme Court cases

July 1, 2015 | Faculty

It has been a big month for those who keep a close watch on the decisions of the U.S. Supreme Court. Moritz faculty can often be found glued to websites like on decision days, and they are frequently asked to share their insights, analyses, and opinions with local, national, and international news sources.

Here is a rundown of recent Supreme Court decisions, along with quotes by our faculty members, and links to media coverage they have received.

Obergefell v. Hodges
Topic: The constitutionality of same-sex marriage bans in four states.
Faculty Expert: Marc Spindelman, Ruth Colker
Their take: The Court determined that a state must issue marriage licenses to two people of the same sex, and recognize a marriage between two people of the same sex when a marriage was lawfully licensed and performed out of state, with nationwide implications.

Marc Spindelman: “Today, the once-impossible-to-imagine finally officially becomes a new way of life as a matter of constitutional law: formal equality, liberty, and dignity in political life for same-sex couples and their families. For LGBT persons, this is a new high watermark in our constitutional system. The work that remains to be done in order to deliver fully on the Constitution’s promises of equality and freedom – and work does remain after today – must be politically achieved. But whatever political headwinds today’s decision and that work may face, will be confronted in the changed climate that today’s decision helps to usher in.”

Ruth Colker: “Justice Kennedy’s majority opinion (with no separate concurrences) relies on both liberty and equality arguments to conclude that same-sex marriage must be recognized. His emphasis on liberty arguments may be good news for future abortion cases, that also rely on liberty arguments. His reliance on liberty also would make it impossible for the four dissenters to have joined his reasoning.”

Media coverage featuring Colker:

Media coverage featuring Spindelman:

King v. Burwell
Topic: The Patient Protection and Affordable Care Act (ACA).
Faculty expert: Christopher J. Walker
His take: King v. Burwell upheld federal subsidies under the Affordable Care Act. Professor Walker provided the following quote about the case: “This is a big win for the Obama Administration in a case that most felt could go either way after the Court heard the case earlier this year,” he said. “The way the Court reached its decision broke new ground in administrative law. Many expected – myself included – that if the Court ruled for the Government, it would do so by applying the familiar Chevron deference regime – finding that the congressional statute is ambiguous and deferring to the government’s reasonable interpretation of that law. But, instead, the Chief Justice, writing for the six-Justice majority, ruled that Chevron deference does not apply to questions like this that concern deep economic and political significance.

Instead, it is the Court that has ultimate authority to interpret such statutory provisions. This has at least two major ramifications for the future of Obamacare and the regulatory state, more generally. First, because the Court did not apply Chevron deference but interpreted the statute itself, a subsequent administration – say, a Republican administration – could not interpret the statute to not allow subsidies in exchanges established by the Federal Government. Second and more broadly, the Court has chipped away on the extreme deference that courts traditionally give to federal agency interpretations of law.”

Media coverage featuring Walker:

Johnson v. United States
Topic: The drug cocktail used during lethal injections.
Faculty expert: Doug Berman
His take: The U.S. Supreme Court issued its opinion regarding the drug cocktail used during lethal injections and Berman saw it as a loss for both lethal injection and death penalty abolitionists more generally: “States eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning,” Berman said. “Watching the strong debate between the justices on this case was fun, but the fact that seven current justices apparently do not question the death penalty’s essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of justices find compelling a categorical constitutional ruling against capital punishment in all cases.”

He added, “The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation. I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim. And the potential legal consequences of a strong Johnson claim could be profound because it may mean that a prisoner who previously had to be sentenced

Media coverage featuring Berman:

Michigan v. Environmental Protection Agency
Topic: Regulating mercury emissions from power plants.
Faculty expert: Cinnamon Carlarne
Her take: An environmental law opinion written by one of the Court’s most conservative justices – Scalia – sent fear down the spines of climate change advocates worldwide. But, Carlarne found a glimmer of hope in the opinion.

“Today’s decision in Michigan v. EPA constitutes a blow, but not a knockout punch, to EPA’s ability, under the Clean Air Act, to regulate emissions of mercury and other hazardous air pollutants from power plants,” Carlarne said.

“The Court questions not just the appropriateness of EPA rule, but also the rationality of the policy. The decision sends EPA back to the drawing board in terms of considering costs at the initial stage of deciding whether or not to regulate hazardous air pollutants from power plants. But, EPA is prepared. In considering the level of regulation, EPA has already quantified both the costs of regulation and the numerous direct and co-benefits of regulation and these benefits support the regulations that EPA has proposed. EPA may have lost the first round, but it is likely to win the fight.”

Media coverage featuring Carlarne:

Arizona State Legislature v. Arizona Independent Redistricting Commission
Topic: The constitutionality of independent redistricting commissions.
Faculty expert: Edward B. “Ned” Foley, Dan Tokaji
Their take: Both Foley and Tokaji applauded the Court’s support of the use of independent commission to draw Congressional district lines – a move meant to reduce the gerrymandering of districts.

Ned Foley: “Enabling states to employ independent commissions for congressional redistricting may ultimately prove unsuccessful in resisting the scourge of partisan gerrymanders. But massaging the Constitution’s text to give the states the chance to try this approach, without having to jump through the hoops necessary for a constitutional amendment, is a decision that vindicates the reason why we have the Constitution in the first place: to provide a workable structure of government through which the American people can continue to conduct their collective experiment in self-government.”

Dan Tokaji: “Today’s decision means that the people have the power to stop gerrymandering through direct democracy. And it leaves the State of Ohio without any more excuses for avoiding congressional redistricting reform.”

Media coverage featuring Foley:

Los Angeles v. Patel
Topic: The Fourth Amendment and warrantless searches.
Faculty expert: Ric Simmons
His take: The Supreme Court’s decision in Los Angeles v. Patel has broader 4th Amendment implications than just police access to hotel registries:

“This case will have important ramifications far beyond hotel registries. In today’s world, there are millions of companies that hold our personal information, from insurance companies to internet service providers,” he said. “Often, the government seeks to obtain our information from these third parties, and up until now it has been unclear what rights these companies have to object to these requests if the companies do not want to cooperate. But, today’s ruling gives those third party companies stronger rights to object. This means that if a company such as Google or AT&T refuses to cooperate with government investigators who are seeking our personal information, it will be significantly harder for the government investigators to force those companies to turn over that information. In this way, the Patel ruling is an important broadening of our privacy rights–assuming that the companies that control our information decide they do not want to cooperate with law enforcement officials.”

Media coverage featuring Simmons:

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project
Topic: The Fair Housing Act (FHA).
Faculty expert: Ruth Colker
Her take: The Court was asked to decide whether or not the Fair Housing Act allows for lawsuits based on whether a law or policy has a discriminatory effect – even though the discrimination may have not been purposeful – since discrimination is rarely stated as an intent. The Court ruled that lawsuits based on such complaints, known as “disparate impact,” are lawful, and Colker said, while the law is often used in racial discrimination cases, it also has importance to those with disabilities.

“The Texas FHA case is very important to the disability community,” Colker said. “Disparate impact is an argument often used to strike down discriminatory zoning ordinances that preclude group housing for those with disabilities. Previously, the Supreme Court ruled in City of Cleburne v. Cleburne Living Center that restrictive zoning ordinances can violate the constitutional rights of individuals with disabilities. The case was a disparate impact case involving the negative effects of zoning laws on the ability of the disability community to build group homes in neighborhoods that otherwise house single-family homes. The FHA was amended in 1988 to codify the City of Cleburne decision and this law is used to challenge zoning laws that have a disparate impact against people with disabilities. Group homes are crucial to the integration of people with disabilities into the community so they can avoid segregated, institutionalized settings. Today’s Fair Housing Act decision retains the vitality of the disparate impact theory to the benefit of all groups covered by the Fair Housing Act, including individuals with disabilities.”  

Ohio v. Clark
Topic: Hearsay and the use of an out-of-court made by a child to a teacher
Faculty expert: Ric Simmons
His take: A win for child advocates nationwide.

“In Ohio v. Clark, the United States Supreme Court provided much-needed clarification about when an out-of-court statement can be used in court against a criminal defendant,” Simmons said.

“This case will have a dramatic impact in child abuse cases, since out of court statements by children will now routinely be admitted in court even if the child cannot testify. It also allows states like Ohio more flexibility in setting their own rules for when hearsay evidence is admissible in court without violating the federal constitution. Generally the Constitution forbids the admission of hearsay statements because the speaker cannot be cross-examined. The Supreme Court’s decision will allow prosecutors to admit these statements more often.”