Unlike me, co-blogger David Bernstein and widely respected columnist Stuart Taylor believe that the Court’s recent decision in Fisher v. University of Texas was a setback for opponents of affirmative action. They agree that the Court’s ruling raised the legal standards that affirmative action programs must meet in order to survive judicial scrutiny. But they […]
Archive | June, 2013
Rick Hills on Koontz, Property Rights, and Federalism
NYU law professor Rick Hills isn’t nearly as pleased with the Supreme Court’s important property rights decision in Koontz as I am. He objects to the result primarily on federalism grounds. In Rick’s view, federal courts should not enforce significant Takings Clause constraints on state land use policies because they can’t effectively with the diversity […]
Kennedy’s Conspicuous Silence in Kebodeaux
Justice Kennedy clearly cares about federalism. He has written more than a few opinions extolling the importance of “dual sovereignty” and maintaining judicially enforceable limits on the scope of federal power. Every so often, however, there comes a case in which Justice Kennedy fully and silently joins a majority opinion that embraces an incredibly expansive […]
Misreporting Vance
What is it about civil rights cases that causes otherwise sensible reporters and commentators to lose their senses? The Supreme Court’s controversial Ledbetter was repeatedly mischaracterized by people who should know better. Now, as Walter Olson documents, we’re seeing knowledgeable commentators mischaracterize the Supreme Court’s decision in Vance v. Ball State. Reasonable people will disagree […]
Fisher is a Significant Loss for Opponents of Affirmative Action Preferences
Sure, the Court tightened the official standards for preferences. But judging from past experience, unless otherwise compelled by state officials in a few conservative states, university officials will ignore Fisher to the extent it conflicts with their current practices. The only way Fisher can then be enforced is through lawsuits over university policies, which are […]
Second Circuit Suggests That the Plain View Exception Should Be Applied More Narrowly to Digital Searches
As regular readers know, I am very interested in the scope of the plain view exception for computer searches. In physical searches, if the government comes across evidence unrelated to the search it is lawfully conducting, the government can seize that evidence as long as its incriminating nature is immediately apparent. I have argued that […]
IRS Scandal Still a Scandal (But Still Not “Watergate”)
New revelations about the conduct of Internal Revenue Service (IRS) officials continues to trickle out. Paul Caron’s latest compilation is here. Some of these revelations are significant, but none of them contradict the account of the Inspector General’s report. Recently disclosed documents show that some BOLO (“Be on the Lookout”) documents called on IRS officials […]
Thoughts on the Koontz Takings Clause Case
Here are some early reflections on Koontz v. St. John’s River Water Management District, the important Takings Clause case the Supreme Court decided today. As discussed more fully here, the case involved a situation where Coy Koontz, a Florida property owner, was refused a permit to develop his land by a government agency, unless he […]
Hispanics and Affirmative Action after Fisher
My commentary is up at Scotusblog. Here are the key paragraphs: Hispanics can be the direct descendants of Spanish conquistadors, their indigenous victims, African slaves, immigrants from anywhere in the world, or any combination of these. Hispanics’ ancestors have come to the U.S. from any one of twenty-one very diverse Spanish-speaking countries, plus possibly Portugal, […]
Today’s Most Interesting Line-Up
Today the Court issued two traditional 5-4 decisions — Shelby County (the Voting Rights Act case) and Koontz (see here and here). It did not issue either gay marriage decision. It did, however, release Adoptive Couple v. Baby Girl, a case with an interesting line-up. Justice Alito, writing for the Court, held that the relevant […]
Property Owner Wins Important Takings Case
In a major Supreme Court victory for property rights, the Supreme Court ruled against the government in Koontz v. St. John’s River Water Management District, an important Takings Clause case that I described here here. Justice Alito wrote the majority opinion for a 5-4 Court split along ideological lines. This was an unexpected outcome because […]
Landowners Win in Koontz
The Supreme Court decided in Koontz v. St. John’s River Water Management District that mitigation requirements imposed on land-use permits are subject to the nexus and proportionality requirements of Nollan and Dolan. The decision was 5-4, and probably represents the most significant property rights decision in several years. Justice Alito wrote the majority opinion. Justice […]
Symposium on Greve’s Upside-Down Constitution
Over the past several days Balkinization has hosted a blog symposium on Michael Greve’s book, The Upside-Down Constitution. this is an important and provocative book that simultaneously reifies and challenges much of what people tend to think about the nature of our federal system, and Jack Balkin assembled an appropriately impressive group of commentators on […]
What is The “Real Story” About Edward Snowden and His Disclosure of NSA Activities?
Whenever Edward Snowden is discussed, I invariably encounter the following response: Edward Snowden is not the issue. You’re trying to distract people by changing the topic. The real issue is what Snowden disclosed about government surveillance, and anyone who talks about Snowden is not talking about the real issue. I find this response puzzling. There […]
Jack Balkin on Fisher
By Ilya Somin on June 24, 2013 9:22 pm in Affirmative Action, Constitutional Theory, Originalism, Racial Discrimination
Yale law professor Jack Balkin – a leading constitutional law scholar generally sympathetic to affirmative action – has an interesting post on Fisher v. University of Texas. Like me, Balkin believes that the decision will make it more difficult for universities to defend racial preferences in court: Fisher distinguishes between two questions. The first is […]