What else may be said about the Supreme Court term newly concluded? From the two Big Ones near the end and from the wailing that has followed them, some might infer that we now have a "liberal" court (meaning one that is at least somewhat to the left of the center of the US political spectrum, whatever exactly that in turn means). But that would be a superficial reading. This is after all almost the same configuration of justices that decided CITIZENS UNITED (2010). [Though Kagan has arrived and Stevens has departed since then.]
Looking at the three cases with which I began this discussion, last Saturday, it isn't obvious what chalk marks one would make on a left/right score board anyway. The energy-policy preemption case was a federal-state matter. Phrases such as "state's rights" are more part of the lexicon of the right than of the left. But in this case, it was Scalia who wrote the dissent, and who thus took the broader view of federal responsibility. The Jerusalem/passport case was a victory for the executive branch. What that means in crude left/right terms depends entirely on who is President at the moment, and who is running the houses of Congress.
Both with regard to the distinctions among the branches of a government, and the distinctions between the different govts in a federal system, the question is always "who do you trust," and one expects no other consistency from left or right, however defined. Also, factions that will support one foreign government over others in the context of domestic politics will take the side of that government's view of its own borders. A case about a passport listing Jerusalem as a birthplace necessarily becomes a case about Zionism.
With that said, I suggest we put the left/right scoreboard away.
As promised, I will discuss today three orders the Court issued this term that didn't involve the issuance of opinions, one that set the table for what may be one of the more important decisions next year, the other two that determined how the law stands on certain matters by giving a circuit court the final say.
One Person, One Vote
The court agreed to hear a case that it may use to clarify the meaning of the "one person, one vote" rule that the court has enforced vis-a-vis voting districts since 1964.
Evenwel v. Abbott. Those who say that the rule should actually be "one qualified voter, one vote" cite favorably something Judge Kozinski wrote in 1991: "a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted." Here is what the Cato Institute has said. http://object.cato.org/sites/cato.org/files/pubs/pdf/evenwel-filed-brief.pdf
If there exists a pocket of people not qualified to vote (through alienage, let us suppose) on one district, call it ABC, and no such pocket in the neighboring district, DEF, then application of the idea of treating simple population numbers as the relevant metric will make the ABC district a more geographically compact one than it would otherwise be, and allow the lines of DEF to sprawl out a bit. So, come the next re-drawing iof lines, it is easy to understand residents of old DEF becoming unhappy that their district has grown and their own votes have been diluted, are of less significance than formerly in choosing public officials.
In an action that some saw as a tip-off of where the court's deliberations on gay marriage were heading, the Court in early May 2015 refused to hear an appeal from the 3d Circuit's decision upholding the New Jersey ban on "conversion therapy," as practiced on minors, that is, on efforts to change the sexual orientation of young teens are or who who seem to their parents to be heading toward homosexuality.
The case, King v. Christie, thus stands where the 3d Circuit Court of Appeals left it. The statute barring licensed health care professionals in New Jersey from offering such therapy, challenged on first amendment theories, was upheld by that appeals court, so the decision not to take the appeal leaves that law in force.
I confess to some ambivalence on this case. First, I think a lot of room ought to be left for alternative ideas of medicine. Otherwise, the credentialed/licensed practitioners become too tight a guild and they serve their own interests as a faction, calling those interests by the hallowed name of science.
Yes, I understand the idea that "conversion therapy" is simply hokum, and that as with any other sort of fraud those who are suckered into paying for it should have a way of achieving restitution. But I'm not sure why common-law notions of civil fraud don't satisfy that purpose, that is, why a statute was necessary such as that New Jersey invoked here.
There is also the concern that conversion therapy does more than merely fail (and leave the hucksters wealthier). It is worse than that because it hurts those minors whom it pretends to help. I understand this concern, but again, I'm not sure how strong an argument it is for the statute. If a homosexually-inclined minor has the great misfortune to live with homophobic parents, this statute limits the ways in which their mental disorder can become his. It limits the ability of certain third parties to serve as their tools in delivering that harm. But does it really increase the harm done? The ones inflicting the harm, after all -- the parents who hire the fraudsters -- will surely inflict it as best they can even without this particular brand of fraudster.
Regular readers of this blog must know that I have followed intellectual-property issues with especial attention. Accordingly, it won't surprise that I end this three-part discussion of all things SCOTUS with a few words about a copyright dispute.
The Supreme Court has now, as of the last day of the term, refused to hear an appeal from a Federal Circuit decision in Oracle v. Google, over Oracle's copyright interest in Java API packages. API stands for Application Programming Interfaces, never mind for now exactly what that means.
What the decision means is that the Federal Circuit's decision, acknowledging that property right, is the law of the land. As to those two digital-industry giants, their dispute is not yet settled. The matter will return to the trial court, and Google will presumably seek to avoid penalties by arguing "fair use," a sort of catch-all defense.
As an anarcho-capitalist, I suppose I should be torn. The right-hand side of that hyphen indicates I should support the property rights of corporations like Oracle, which bought Sun, whose engineers created the Java programming language, the platform built thereon, and the APIs in question.
Still, listening to the left-side of the hyphen, my anarcho soul, I tend to take a "don't fence in innovation" view of IP disputes. This one among others. So I wish Google best of luck on remand.
And that will conclude my Supreme Court round-up for another year.
Oh, and by the way, if you do want to understand "application programming interfaces," you might start here.