Summary of Today’s Supreme Court Opinions

Four new opinions today. Still no Brown v. EMA (video game violence), but we received Wal-Mart v. Dukes. As expected, it was a reversal, but Justice Ginsburg wrote separately.

In Wal-Mart v. Dukes, Justice Scalia delivered the opinion of the Court. Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined entirely. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined as to Parts I and III. The entire Court held that “The certification of the plaintiff class was not consistent with Rule 23(a).”

Justice Ginsburg field an opinion concurring in part, and dissenting in part, in which Breyer, Sotomayor, and Kagan joined.

The class in this case, I agree with the Court, should nothave been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola-tion of Title VII, 42 U. S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive ordeclaratory relief that might be available. See ante, at 20–27. A putative class of this type may be certifiable underRule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com-pensatory damages—and that a class action is “superior” to other modes of adjudication.Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before theCourt, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). In so ruling, the Court imports into the Rule 23(a) de-termination concerns properly addressed in a Rule 23(b)(3) assessment.

In Borough of Duryea v. Guarnieri, Justice Kennedy wrote for Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, that “A government employer’s allegedly retaliatory actions against anemployee do not give rise to liability under the Petition Clause unlessthe employee’s petition relates to a matter of public concern.” Justice Thomas concurred in judgment.

For the reasons set forth by JUSTICE SCALIA, I seriously doubt that lawsuits are “petitions” within the original meaning of the Petition Clause of the First Amendment. See post, at 2–3 (opinion concurring in judgment in part and dissenting in part). Unreasoned statements to the contrary in this Court’s prior decisions do not convince me otherwise. Like the Court, however, I need not decide that question today because “[t]he parties litigated the case onthe premise that Guarnieri’s grievances and lawsuit arepetitions protected by the Petition Clause.”

Justice Scalia concurred in judgment in part and dissent in part, doubting the historical pedigree of the holding, and citing Heller!

I find the proposition that a lawsuit is a constitutionally protected “Petition” quite doubtful. The First Amend-ment’s Petition Clause states that “Congress shall makeno law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.” The reference to “the right of the people” indicates that thePetition Clause was intended to codify a pre-existing individual right, which means that we must look tohistorical practice to determine its scope. See District of Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).

Justice Kenendy has taken an interest in the Petition Clause of late. Interesting that he wrote this opinion.

In AEP v. Connecticut, Justice Ginsburg wrote for a unanimous Court that “The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”

We address in this opinion the question whether the plaintiffs (several States, the city of New York, and threeprivate land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters(four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at aninitial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.

Justice Alito concurred in part and in judgment with a single sentence casting doubt on Mass v. EPA: “I concur in the judgment, and I agree with the Court’sdisplacement analysis on the assumption (which I make for the sake of argument because no party contends oth-erwise) that the interpretation of the Clean Air Act, 42U. S. C. §7401 et seq., adopted by the majority in Massa-chusetts v. EPA, 549 U. S. 497 (2007), is correct.”. Justice Sotomayor recused.

In Turner v. Rogers, Justice Breyer writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan found that “Even though Turner has completed his 12-month sentence, and there are not alleged to be collateral consequences of the contempt determination that might keep the dispute alive, this case is notmoot, because it is “capable of repetition” while “evading review,”

We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially facedwith such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide thesupport). But we attach an important caveat, namely,that the State must nonetheless have in place alternativeprocedures that assure a fundamentally fair determina-tion of the critical incarceration-related question, whetherthe supporting parent is able to comply with the supportorder.

Justice Thomas wrote for Justice Scalia, and for Chief Justice Roberts and Justice Alito as to Parts I-B and II (this dissenting duo did not write separately).

The Due Process Clause of the Fourteenth Amendment does not provide a right to appointed counsel for indi-gent defendants facing incarceration in civil contempt pro-ceedings.

Update: My instant analysis of Wal-Mart v. Dukes is available here.  Special praise, to Professor Nagareda, who passed away last year. His scholarship was cited prominently by both the majority and dissent in Wal-Mart.

In A.E.P. v. Connecticut, there is a lengthy discussion about the Court’s view of climate change. Additionally, Justice Ginsburg provides a clue as to how the Court split4-4 on the issue of Article III standing to challenge the greenhouse emissions.

In Turner v. Rogers, Chief Justice Roberts and Justice Alito did not join Justice Thomas’ portion of the opinion which discusses the original understanding of the right to counsel, and casts doubt on Gideon v. Wainright from an originalist perspective. Roberts and Alito are not originalists in the same way that Scalia and Thomas are. The day after Father’s Day, Justice Thomas has a lengthy discussion about “deadbeat dads” who do not pay child support. Interestingly, the Chief Justice and Justice Alito do not join this portion of the opinion either, which, among other points, asserts that the majority, including Justice Ginsburg, “does not account for the interests that children and mothers have in effective and flexible methods to secure payment.” Justice Ginsburg doesn’t account for the interest of mothers and children? Chutzaph much.

In Duryea v. Guarnieri, there is an interesting historical discussion of the history of the Petition clause, with dueling histories by Justices Kennedy and Scalia. Justice Scalia also has a discussion of “core rights,” a term of art he relied on in Heller to explain the heightened protection of the Second Amendment.

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