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The U. S. Supreme Court will open its new term in October with another blockbuster case involving campaign financing.

McCutcheon v. FEC (called “Citizens United II” by some), scheduled for argument on Oct.8, involves a challenge to limits on individual donor contributions.  In 2012, the overall contribution limit for a single donor in the 2012 election cycle was $70,800 to all party committees and $46,200 to all federal candidates.

Conservative Alabama activist Shaun McCutcheon and the Republican National Committee want to have lots more money flowing into elections and have asked the Court to overrule years of precedent upholding such limits.

Here’s a little history on the regulation of contributions and a warning on just why this case — even more than Citizens United — is such a threat to democracy,courtesy of  this opinion piece in today’s Politico:

 In the wake of Watergate, Congress in 1974 enacted comprehensive new campaign finance laws that included limits on individual contributions to candidates and an overall limit on the total amount an individual could give to all federal candidates and parties.

The Supreme Court in 1976 in Buckley v. Valeo explicitly upheld the constitutionality of the overall contribution limit, as well as the individual contribution limits.

Since then, the Supreme Court has never struck down a federal contribution limit. Instead, the court has relied repeatedly on Buckley to hold that large contributions create opportunities for corruption and therefore can be subject to limits consistent with the First Amendment.

We’ll have more on this and other cases queued for argument in the new term in the coming weeks.

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. NassarIn 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.”

The U.S. Supreme Court continued its slow but steady evisceration of collective consumer action, effectively gutting one of the last exceptions allowing consumers to join forces as a class.

In Italian Colors v. American Express, the Court ruled 5-3 (Justice Sonia Sotomayor did not participate) that it doesn’t matter if a consumer’s costs in proving a company’s statutory violation dwarf any potential recovery; that consumer still can’t sue as part of a class.

Most consumer contracts have provisions that go beyond just requiring the resolution of disputes in arbitration, rather than in court.  A class action waiver — precluding a consumer from resolving his dispute as part of a class — is one such provision, one that the Supreme Court upheld in 2011 in AT&T v. Concepcion.

Despite that ruling, courts had continued to recognize the prohibitive litigation costs to an individual — the so-called “effective vindication” exception — as a reason to allow consumers to proceed as a group. In Italian Colors, that group consisted of merchants suing American Express for alleged violations of antitrust laws, saying that the company was using its monopoly power to force them to agree to excessive fees. When American Express sought to force the merchants to sue individually, the group countered that the costs in proving any individual claims could exceed a million dollars, while any likely recovery would be in the thousands. Read More

While the justices of the Supreme Court did not hand down decisions yesterday in any of the still-pending big cases (affirmative action, voting rights, marriage equality), they did tip their hand a bit — showing, as Andrew Cohen says in this Atlantic piece, just how sharply divided they are ideologically.

And what they revealed does not bode well for those decisions yet to come in the next ten days, as well as some coming in later terms.

Discussing the court’s decision in Alleyene v. U.S., Cohen said:

Long after folks forget about this case and this ruling and the role of juries in criminal sentencing procedure they may remember the extraordinary exchange between Justice Alito and Justice Sonia Sotomayor over a case (Roe v. Wade) and a topic (abortion rights) that have nothing to do with the Sixth Amendment.

The two justices scrapped over the concept of stare decisis – the doctrine which posits that the Court should overturn its own precedent only in exceptional circumstances.

In a snarky dissent, Justice Alito issued a warning to the Court about creating a “precedent about precedent that may have greater precedential effect than the dubious decision on which it relies.” “The Court ought to be consistent in its willingness to reconsider precedent,” Justice Alito wrote. “If [Harris] can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases.” He might as well have written Roe v. Wade in the margins of his text.

This in turn was too much for Justice Sotomayor. In a concurrence, she forcefully made the case for respecting Roe v. Wade precedent even as she was voting to overturn it.

 

Meet the man who, by tracking down the plaintiffs and helping fund two of the most closely watched cases before the U.S. Supreme Court this term , is on a mission to change the rules of race in this country. 

He is Edward Blum, a little-known 60-year-old former stockbroker.

Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court. Abigail Fisher is the daughter of an old friend of Blum’s – a man who happened to call when Blum was in the midst of a three-year search for a white college applicant who had been rejected despite solid scores. Blum eventually got Shelby County to file suit after trolling government websites and cold-calling a county official.

Blum introduced Fisher’s father and Shelby County officials to the same high-priced but politically sympathetic Washington lawyers, who agreed to work for a cut rate to be billed to Blum’s backers. Neither Fisher nor Shelby County is paying to fight the cases that bear their names.

Over the past 20 years, Blum has similarly launched at least a dozen lawsuits attacking race-based protections. In addition to the Fisher and Shelby County cases, two other Blum-backed cases reached the Supreme Court. One struck down majority-black and majority-Latino voting districts in Texas. The other prompted the court to suggest it might eliminate a major portion of the Voting Rights Act of 1965, which the conservative-majority bench may now be poised to do in the Shelby County case.