In an earlier entry, I detailed the affirmative action case before the Supreme Court this term- Fisher v. University of Texas at Austin- and the 7-1 narrow, rather anti-climactic resolution. There was no sweeping denunciation or uplifting of affirmative action to be found other than the fact that Justice Thomas announcing that he would vote to overrule 2003’s decision in Grutter, the underlying case that the Court relied upon here. To briefly follow up, this case was remanded to the Fifth Circuit where they were ordered to apply strict scrutiny, a vehicle they did not use when they affirmed summary judgment for Texas in the District Court. The fact is that depending on the pace of this case on remand, it may very well end up before the Court again when they may actually be asked to make a more forceful decision regarding affirmative action. However, in the interim, they will definitely entertain a direct challenge to affirmative action in another context next term- whether states can bar affirmative action. By no means is this issue dead and remains one where the Court, though trending conservative in this area, is still pussy-footing around the issue (except Thomas).

But, there were four other cases announced today. In Mutual Pharmaceutical v. Bartlett, the Court again waded into generic drug liability and how state laws intersect with federal laws. Previously, the Court ruled, with some exceptions, in the PLIVA case that federal law preempted state liability laws. The underlying purpose of the federal law is to create some consistency with respect to the market introduction of generic drugs. That law requires two things of generic drug makers- (1) that the chemical composition of the generic drug match that of the name brand drug and (2) that the FDA labeling be identical to the name brand drug. The law does not authorize the generic manufacturer to make changes to the design or labeling of the drug. In the PLIVA decision, the Court decided that federal law preempted state labeling defect claims. Today’s decision applies PLIVA to preempt state design defect claims.

Bartlett suffered horrendous injuries as the result of using a generic drug. She sued in New Hampshire court under their product liability laws, won, and was awarded $21 million in damages. However, Mutual claimed they could not simultaneously comply with the federal law and the state law. On appeal, the Circuit Court rejected their claims and said that they could cease selling their product in New Hampshire as one possible solution, or simply paying the people who suffered injury as a result of the drug’s use (certainly not $21 million in one case). The Court ruled that the only way Mutual could continue to sell the drug in New Hampshire would be to either alter its chemical composition, or change the labeling. Federal law prohibits both actions. As Sotomayor noted in her dissent, the only option at this point is for Congress to amend the existing law and allow state suits. The decision was 5-4 along ideological lines with Alito the author.

In a 7-2 decision authored by Breyer, the Court ruled on the registration of a convicted sex criminal. Kebodeaux was convicted of a sex crime via court martial in 1999. Years later, Congress enacted a law requiring sex offenders to register in their state which Kebodeaux did in 2004. However, after a subsequent move, he failed to register and was convicted under the federal law known as SORNA (Sex Offender Registration and Notification Act). One would think that this is an Ex Post Facto case. Kebodeaux, after all, had served his sentence and had been dishonorably discharged before SORNA was enacted. Avoiding the Ex Post Facto clause of the Constitution, Breyer ruled that he was subject to the reporting requirements under another law and that SORNA merely modified those requirements. Using the Military Regulation Clause and then the Necessary and Proper Clause, Breyer and the majority conclude that registration under SORNA did not violate the Ex Post Facto Clause. Sound complicated? It really isn’t as Roberts explains in his concurrence. Here, he states upfront that the US government has no broad police power in this area, but is instead based on Congress’ authority to make rules for the armed services. Scalia and Thomas dissented with Thomas arguing that SORNA usurps state police power regarding sex offender registration.

In UTSMC v. Nasser, the Court confronted Title VII of the Civil Rights Act regarding employment discrimination. Here, there has been considerable back and forth between the Court and Congress. Title VII prohibits employment discrimination. It also prohibits retaliatory actions by employers against complaining employees. For example, one past ruling established the “but for” rule when looking at these claims. Under this paradigm, an employer could prevail if they could prove, even if race was a factor in denying employment, the person would not have been hired, promoted or retained anyway. In 1991, Congress updated the law to allow a plaintiff to merely prove that race was a motivating factor in the employment decision. If they can prove that, they win their case. But, the employer could avoid damages if they prove that regardless of the motivation, the person still would not be hired, promoted, or retained.

This case asked whether these provisions also apply to claims of retaliation for making complaints with the EEOC. The Court, again in an opinion along ideological lines, ruled that it does not. Justice Kennedy, writing for the conservative majority in this case, analyzed the text of Title VII and its structure to basically state that retaliation can be a form of discrimination, but generally is not. In a strongly worded dissent, the liberals, led by Ginsburg, argued that the Court was parsing words and ignoring the INTENT of Congress in rooting out workplace discrimination.

In the final case, also a 5-4 decision, they also addressed Title VII and workplace discrimination from a different angle. In previous decisions, the Court ruled that employers are liable for discrimination if the action was taken by a “supervisor.” They could be liable if a co-worker discriminates, a person complains, and the employer does nothing about that complaint. This case centered on the definition of a “supervisor.” Vance, an African-American, argued she was discriminated against because of her race by “a supervisor.” The supervisor in question was someone who scheduled her daily activities and was involved in her annual job performance evaluation. Ball State University, her employer, argued that the supervisor must have more than scheduling and evaluation input duties to qualify as a supervisor. The Obama Administration, trying to straddle some middle ground, agreed with Vance in theory, but disagreed with her specific claim.

Justice Alito essentially adopted the definition proposed by Ball State that the “supervisor” must be someone who can take a “tangible employment action” against the alleged victim. They must be able “to effect a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different job responsibilities, or a decision causing a significant change in benefits.” Again, Ginsburg led the liberal dissent arguing that majority ignored the reality of the workplace. As she did in the Nasser case, she urged Congress to change the law and correct the alleged horrors inflicted on workers who claim workplace discrimination.

This case, coupled with the Nasser case, are clearly ones of statutory interpretation and Congress can, if they so desire, change Title VII if they wish. In recent terms, they did, in fact, amend civil rights legislation in response to the Ledbetter v. Goodyear case involving the statute of limitations for filing complaints. You remember that case, right? If you don’t, it is the one that Obama usually trots out to prove that (1) it was the first piece of legislation he signed once assuming office in 2009 and (2) it is proof that he is on the side of women… except for two very important facts. First, the “correction” was a no-brainer piece of legislation initiated when BUSH was President. Second, it is a statute of limitations question and in no way increased the pay of women in the workforce. In graphic terms, if David Duke were President and Rush Limbaugh Vice-President (do not mean to link the two), even they would have signed the Ledbetter Act into law.

The fact is that today, in both Nasser and Vance, the broad interpretations of Title VII of the Civil Rights Act were rejected. The views and policies of Obama’s EEOC were rejected. True, the government argued a middle line in the Vance case siding with with her in theory, but disagreeing in practice. But, Vance lost on both the theory and in practice. The Obama Administration prevailed in the Kebodeaux case, but not on the grounds they argued giving them a victory in practice, not theory. They also prevailed in the Mutual Pharmaceutical case, but there is a caveat there. In that case, the supremacy of the federal law and, by proxy, an Executive branch agency- the FDA- prevailed which only strengthened the role of the FDA over state consumer protection laws. However, we would have to give the administration a victory here. In the Fisher case, the final result still needs to fleshed out on remand, but at this point, the government’s view takes a loss. Today in the United States Supreme Court, the Obama Administration went with two wins and three losses in cases decided which continues a trend in recent Court terms.

In other news, the Court granted nine reviews for the next term. Specifically, they granted cases to decide whether states can sue Indian tribes for casino gambling off tribal lands, an international law case involving child abductions, an immigration case involving the age of children, a bankruptcy case, and a securities litigation case. Most importantly, they decided to take the case of NLRB appointments by Obama and the Recess Appointments Clause and another labor union case involving organizing efforts by an offshoot of SEIU. Most importantly, they will also decide whether the EPA’s cross-state pollution rule is valid which can have dramatic effects on that agency’s efforts to enforce the Clean Air Act. The DC Circuit recently decided the rule to be invalid setting back Obama’s EPA. They will also decide a case regarding protests outside abortion clinics and state-established buffer zones. This is a First Amendment case out of Massachusetts.

Well, thanks for reading. The Court will meet again tomorrow and likely either Wednesday or Thursday. They still have six cases to six cases to announce- (1) Koontz regarding a land use agency and the Takings Clause, (2) Sekhar- whether attorney advice is intangible property that can be the subject of an extortion attempt, (3 & 4) Windsor and Perry- the gay marriage cases, (5) adoptive baby- a custody case involving the Indian Child Welfare Act, and (6) Shelby- whether section 5 of the Voting Rights Act of 1965 is valid. In (6), if the Court strikes down Section 5 (as I believe they will), expect Jesse Jackson, Keith Ellison, and Al Sharpton and their white guilt-ridden brethren to foretell the great African-American voting apocalypse.