The Court this morning released decisions in five of the eleven cases still awaiting disposition, and will return with more tomorrow morning and at least one more day after that.

The first decision was Vance v. Ball State, on the “superior liability” rule in sexual harassment cases. In a 5-4 vote, the Court upholds the 11th Circuit.  Justice Samuel Alito writes for the majority, Ruth Bader Ginsburg for the dissent — joined by Stephen Breyer, Sonia Sotomayor and Elena Kagan. From scotusblog:

Regarding Vance, the Supreme Court had previously made a distinction between discrimination by “supervisors” and discrimination by mere co-workers. Specifically, a company is automatically liable for any discrimination by a supervisor; it is liable for co-worker discrimination only if the victim complains about it to management and the management does nothing to stop it. So by restricting who counts as a supervisor, the Court has handed employers a victory.

Second was Mutual Pharmaceuticals v. Bartlett,  also written by Justice Alito. In a 5-4 decision reversing the 1st Circuit, the Court holds that design defect claims under state law that turn on the adequacy of a drug’s warnings are preempted by federal law. Justice Breyer dissents, joined by Justice Kagan, and Justice Sotomayor dissents, joined by Justice Ginsburg.

Third was U.S. v. Kebodoeux. In a 7-2 decision written by Justice Breyer, the Court reverses the Fifth Circuit. The case involves the Sex Offender Registration and Notification Act (SONRA), which requires federal sex offenders to register in the States where they live. Here, the defendant was convicted of a sex offense, but had already served his sentence and been discharged when SONRA was enacted. The question in the case was whether Congress had the power to enact SONRA’s registration requirements and apply them to an offender who had already completed his sentence when SONRA was enacted. The Court holds that Congress had that power under the Necessary and Proper Clause.

Affirmative action, in Fisher v. University of Texas, was next.  In a 7-1 opinion by Justice Kennedy, the Court reverses the Fifth Circuit on narrow grounds and sends the case back to have the UT affirmative action policy assessed under a strict scrutiny standard.  Justice Kagan was recused. Justice Ginsburg was the lone dissenter.  Justices Scalia and Thomas have concurring opinions.

The final opinion today was UT Southwestern v. Nassar. In a 5-4 decision by Justice Kennedy,the Court holds that Title VII retaliation claims must be proved according to traditional principles of “but for” causation, not the lesser causation standards stated in the law. Justices Ginsburg, Breyer, Sotomayor and Kagan dissent. In her dissent, Ginsburg takes on the majority in both this case and in  Vance, saying that “both decisions dilute the strength of Title VII in ways Congress could not have intended. . . . Today, the ball again lies in Congress’ court to correct this Court’s wayward interpretations of Title VII.”

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