The Docket

The Prospect's legal affairs blog

It's Roberts's Court Now

(AP Photo/Nick Ut)

For months before today’s announcement of the Supreme Court’s decision in the Health Care Cases, the conventional wisdom had centered on two things: (1) The vote would be 6-3; and (2) Chief Justice John G. Roberts would write the opinion. Roberts would jump the way Justice Anthony Kennedy jumped and then write the opinion to shape doctrine for the future.

Who’s Sovereign Now?

(AP Photo/Chris Greenberg, File)

Hard to say what’s more bizarre about Antonin Scalia’s furious dissent against the Supreme Court’s decision striking down most of Arizona’s anti-immigrant law: his railing at President Barack Obama’s executive order stopping the deportation of immigrants brought here as children (which wasn’t remotely the subject of the case at hand) or his basis for upholding Arizona’s law—that Arizona is a sovereign state with the rights generally claimed by nation-states.

Memo to Jan Brewer: You Had a Bad Day Monday

(AP Photo/Evan Vucci)

Governor Jan Brewer applauded Monday’s decision in Arizona v. United States for upholding “the heart of S.B. 1070.”


In an opinion by Justice Kennedy, the Court struck down the three provisions that prescribed punishment for the undocumented. It upheld one provision—but made clear that, unless Arizona courts themselves limit the measure, that one is likely to fail an as-applied challenge once it goes into effect.

Supreme Court Strikes Most of Arizona Immigration Law, Making Scalia Very Angry

The oral arguments earlier this year on the SB-1070, the infamous Arizona immigration law, made it difficult to read how the Court was going to rule on most of its provisions, although the Court seemed on balance more sympathetic to Arizona's position. Given how things looked after that, today's decision in Arizona v. United States must be considered a pleasant surprise.

Court to Super PACs: Full Speed Ahead

(Flickr /

During the 1980s and '90s, conservatives liked to talk about the “sagebrush rebellion,” in which local officials in Western counties tried to take back federal land and escape the “tyranny” of federal land-management and environmental rules.  That rebellion still simmers. But today, the Supreme Court crushed, for the moment, a newer rebellion out of the West. 

Can Broadcasters Use Dirty Words? Court says, “#$%& If We Know”

(AP Photo/E. Pablo Kosmicki/file)

Thursday was First Amendment day at the Supreme Court. But the Court ducked the chance to decide what is literally its most visible case of the term—the “dirty words on broadcast TV” case. Federal Communications Commission v. Fox Television Stations, was on its second trip to the show. Seven justices delivered an opinion that sheds no light at all on the interesting issue—whether the government may ban “fleeting expletives” on broadcast TV. 

The Court’s Scott Walker Moment

(AP Photo/Alex Brandon)

On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time.

Key Rulings Reveal Partisan Divides On Court

WikiMedia Commons

The more than 20,000 people who were following SCOTUSblog's live-blogging of today's cases did not, as you probably know by now, get the health care ruling many of us were stressed out about. There were, however, some other major rulings that deserve some attention. Among other things, they illustrate that presidential elections matter a great deal.

Issa's Contemptible Vote

(AP Photo/J. Scott Applewhite)

If contempt of Congress (current polls show a whopping 17% approval) is a crime, we are a nation of criminals. That thought leapt to mind at the news that the House Oversight and Government Reform Committee, chaired by Representative Darrell Issa (R-CA.) has voted to ask the full House to hold Attorney General Eric Holder in contempt because of his refusal to turn over internal records relating to the administration’s response to the “Fast and Furious” gun-walking scandal in Arizona. In response to the prospect of that vote, Deputy Attorney General James M. Cole announced that President Obama had asserted executive privilege over the documents requested.

Lethal Injection and the New Immigration Policy

(AP Photo/Jacquelyn Martin)

In March 1977, two Tulsa horsewomen went to a church parking lot to meet an man who claimed to have Morgan horses to sell. Not long afterwards, their bodies were found near Sallisaw, Oklahoma, buried on land leased to Larry Leon Chaney. Chaney was convicted of murder and sentenced to death.

Diluting the Sixth Amendment

WikiMedia Commons

None of the most anticipated Supreme Court cases remaining this term—on health care, immigration, or "fleeting expletives" on broadcast television—came down today. But we did get a Sixth Amendment ruling that is both important in itself and tells us something important about the justices on the Court.

Department of Justice Acts to Prevent Disenfranchisement in Florida

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Florida governor Rick Scott is attempting to engage in a purge of voters, requiring some voters to prove their citizenship within a limited time frame in order not to be disenfranchised, allegedly in order to address "vote fraud" that for all intents and purposes doesn't exist. The Department of Justice told Scott to stop this illegal vote suppression.

The Supreme Court's Passive-Aggressive Gutting of Habeas Corpus

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The latest outrage from the Roberts Court involves not something the Court did but what it didn't do. Today, the Court refused to hear appeals from seven people who have been detained without charges at Guantanamo Bay. In 2008, the Supreme Court formally posed as a defender of habeas corpus in Boumediene v. Bush, holding that the Military Commissions Act of 2006 violated rights to habeas corpus possessed by those detained at Gitmo.

Racist Searches and Drug Arrests Fine With New York GOP

Last month, the New York Civil Liberties Union released some extremely disturbing data about "stop and frisk" searches in New York City. Since 1968, the Supreme Court has held that warrantless patdown searches by police require only "reasonable suspicion" rather than the "probable cause" required to obtain a search warrant under the Fourth Amendment. This watered-down standard has always been subject to abuse, and there can be little doubt that this has been the case in New York.

Prop. 8 Heads for the Show


One of the most important functions of a dissenting opinion is to throw red meat to op-ed writers. Justice Antonin Scalia is a master of the form. Witness his dissent in Lawrence v. Texas, warning that, if same-sex sodomy laws are voided, government may soon force the unwilling to accept gays and lesbians “as boarders in their home.” Justice John Paul Stevens also perfected the zinger; he capped his dissent in Citizens United by saying, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”