Monday, June 4, 2007

Today's Opinions and a Little SCOTUS Bingo - UPDATE on Possible Authorship of Hein


None of the opinions we're following closely were decided today, but the Court did issue opinions in three pending cases.

In Sole v. Wyner, the Court held that a party that receives a preliminary injunction but then ultimately loses the case on the merits is not eligible for attorneys fees under 42 U.S.C. 1988. Justice Ginsburg wrote the decision for a unanimous court. The Court stressed that it was NOT deciding the larger (and more critical) question whether "in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may
sometimes warrant an award of counsel fees." As the Center for Law & Religious Freedom has sought (and received) attorneys fees in some of its litigation victories over the years - some after receiving preliminary injunctions where the Defendants then mooted the case by amending their policies or settling with our clients - this issue remains of interest to CLRF.

The Court also issued opinions in Safeco Insurance v. Burr (06-84) and GEICO v. Edo (06-100) (consolidated) authored by Justice Souter and Uttecht v. Brown (06-413) authored by Justice Kennedy. For more on these opinions see Scotusblog.

Now for a little bingo.

With today's decisions only one case remains undecided from the January sitting, Davenport v. Washington Education Ass'n. Only one justice has not yet issued an opinion from that sitting, Justice Scalia. If you're an opponent of compelled speech this is likely good news. More background on the case is available here from the Medill School of Journalism.

The two cases addressing racial preferences in secondary school admissions Parents Involved in Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board of Education are the only remaining cases from the December sitting and the opinion in these cases is probably being authored by Chief Justice Roberts, the only justice to not have issued an opinion from that sitting.

Only seven cases were heard in February, including Claiborne v. U.S. and Rita v. U.S., sentencing guidelines cases heard the same day and probably decided in a single opinion. Claiborne was dismissed today due to Mr. Claiborne's death this past week. Rita and Hein are the only opinions remaining from the February sitting. Justices Kennedy, Scalia, Souter and Ginsburg have issued opinions in February and are unlikely to be writing the opinions in either Rita or Hein, but other than this observation the tea leaves are a bit sparse. And no opinions have yet been issued from the March sitting in which Morse v. Frederick was heard, so any speculation as to authorship of that opinion would be, well, speculative.

UPDATE -- Reading a few more tea leaves, Tom Goldstein at Scotusblog is now predicting that Chief Justice Roberts is writing the Hein decision. If this prediction comes to pass, the decision could be very interesting. Chief Justice Roberts was counsel in Lujan v. Defenders of Wildlife, the landmark standing decision that held that Article III's "case or controversy" requirement was the "irreducible constitutional minimum" of standing (as opposed to being a more flexible rule that the Court could waive in a given circumstance). Justice Roberts advocated for this stricter adherence to Article III in Lujan and may have a particularly strong interest in reigning in the Court's standing jurisprudence. Some have argued that Flast v. Cohen, the decision allowing taxpayer standing in establishment clause cases, is at odds with Lujan's understanding of Article III as the unyielding constitutional restraint on the Court's exercise of jurisdiction. Although the Court need not directly address the constitutionality of taxpayer standing in order to decide Hein, it is not outside the realm of possibility that it would. And in any case, a Roberts opinion might provide some indication as to how taxpayer standing will fare once the issue is squarely presented to the Court.