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U.S. Supreme Court: A year unlike any in recent memory

Posted By Administration, Tuesday, August 4, 2015

By Erwin Chemerinsky

It is 40 years since I started law school, and I cannot remember a Supreme Court term with so many liberal victories in major cases. What explains it and what is it likely to mean for the future?

U.S. Supreme Court
U.S. Supreme Court

The easiest explanation is that Anthony Kennedy voted with the liberal justices much more often than in any prior term. There were 13 cases that split 5-4 along ideological lines, and in eight of them Justice Kennedy joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. In five of them, Justice Kennedy joined Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. By contrast, over the first nine years of the Roberts Court, Justice Kennedy joined the conservatives about 70 percent of the time when the court was ideologically split 5-4.

But that explanation does not tell the whole story. There were a few cases where Justice Kennedy dissented, but the liberal justices were still in the majority by attracting one or more of the other justices to join them. Thus another key factor explaining the decisions was the cohesion of the four most liberal justices – Ginsburg, Breyer, Sotomayor and Kagan. They voted together in 15 of the 19 5-4 decisions. Therefore, they needed to attract only one additional vote to get a majority. One reflection of this is that for the first time the justice most often in the majority was Breyer. He voted in the majority 92 percent of the time. He also was the justice most often in the majority in 5-4 decisions.

Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single term. A year ago, commentary on the court focused on the unanimity of the term: 66 percent of the cases were decided unanimously. This year, only 34 percent of the cases decided after briefing and oral argument were unanimous.  

Next year, the court will be deciding cases about affirmative action, voting rights, First Amendment rights of non-union members and, most likely, abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative justices.

Marriage equality

The most high profile case of the term was Obergefell v. Hodges, where the Supreme Court ruled, 5-4, that laws prohibiting same sex marriage violate the due process and equal protection clauses of the Fourteenth Amendment. Justice Kennedy wrote for the court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 

Justice Anthony Kennedy
Kennedy

Justice Kennedy explained that the court long has protected the right to marry as a fundamental right. It is safeguarded under both the due process and equal protection clauses. The court examined the precedents concerning the right to marry and concluded, that “[t]his analysis compels the conclusion that same-sex couples may exercise the right to marry.”

The court said that there is no difference between same-sex and opposite-sex couples when it comes to the importance of marriage for couples, for their children and for society. The court rejected that a tradition of discrimination justifies continued discrimination. The court also rejected the argument that marriage is about procreation and explained that same-sex couples will procreate whether or not they can marry and their children should have the benefit of married parents.

Each of the four dissenting justices – Chief Justice Roberts and Justices Scalia, Thomas and Alito – wrote dissenting opinions. Each of the dissenting justices accused the majority of undue judicial activism. Each of the dissenting justices argued that the issue of marriage equality should be left to the political process to resolve. Each emphasized the long tradition of marriage being only for opposite sex couples.  

The decision is truly historic and means that same-sex couples now can marry everywhere in the United States.

Health care

In King v. Burwell, the court ruled that those who qualify economically and purchase health insurance from exchanges created by the federal government can receive tax credits.

The goal of the Affordable Care Act was to make sure that almost all Americans have health care coverage. Prior to the Affordable Care Act, approximately 50 million Americans were without health care coverage. 

Read the whole story at California Bar Journal

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Joe Dunn expected to enter congressional race for Loretta Sanchez's seat

Posted By Administration, Tuesday, August 4, 2015

Status of Bao Nguyen, Lynn Schott congressional candidacies updated Aug. 2.

Former state Sen. Joe Dunn, D-Santa Ana, may be the next to join the race to replace Rep. Loretta Sanchez, the Orange Democrat now running for U.S. Senate.

Dunn didn’t respond to my phone messages Friday but I’ve heard he’s making calls to drum up support for a bid. Dunn would pose a formidable opponent to former state Sen. Lou Correa, the first and best-known of three Democrats to enter the race so far.

Dunn was elected to the Senate in 1998, upsetting Republican incumbent Rob Hurtt. He was reelected in 2002 and ran unsuccessfully for state controller in 2006. He then served as CEO of the California Medical Association until 2010, when he was appointed executive director of the State Bar of California.

Dunn was fired in November 2014 and filed a lawsuit against the bar, with both sides claiming malfeasance by the other. The bar and Dunn are now in arbitration, according to the Sacramento Business Journal. In June, the state released an audit critical of the bar for inadequate discipline of members and raised issues with the purchase of a $77 million building. Dunn was leading the bar for most of the period covered by the audit.

Read the whole story at The Orange County Register

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Federal Judge Blocks Release of Videos by Anti-Abortion Group

Posted By Administration, Monday, August 3, 2015

SAN FRANCISCO — A federal judge has blocked the release of any recordings made at meetings of an abortion providers’ association by an anti-abortion group that previously revealed secretly recorded videos of aPlanned Parenthood leader.

Judge William Orrick issued a temporary restraining order on Friday against the Center for Medical Progress hours after the order was requested by the National Abortion Federation.

In his three-page order, Judge Orrick said the federation would likely suffer irreparable injury absent a temporary restraining order “in the form of harassment, intimidation, violence, invasion of privacy, and injury to reputation.”

The National Abortion Federation sued in federal court in San Francisco, alleging that the Center for Medical Progress infiltrated its meetings and recorded its members. The group says release of any audio or video would put members in danger.

“The safety and security of our members is our top priority,” Vicki Saporta, association president and chief executive, said in a statement. “That security has been compromised by the illegal activities of a group with ties to those who believe it is justifiable to murder abortion providers.”

Read the whole story at The NY Times

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California bar exam to be one day shorter, but could be just as difficult

Posted By Administration, Friday, July 31, 2015

California bar officials have voted to cut the length of the state’s bar exam from three days to two.

The change, approved unanimously Monday by the State Bar of California’s board of trustees, will take effect in July 2017, Above the Law reports.

The two-day exam will include one day of five one-hour essays and a 90-minute performance test, and one day spent on the 200-question multiple-choice Multistate Bar Exam. Each day will weigh equally in a test-taker’s final score.

As a practical matter, the most significant impact of the change will be on the performance test, according to Pepperdine University School of Law professor Derek Muller, who reported on the proposal (PDF) on his blog Excess of Democracy in March. California bar officials told the ABA Journal that currently, three-hour performance tests are given on two of the three days.

The change won’t necessarily make the state’s exam–considered by some to be the nation’s toughest–any easier, according to Muller. He said scores will presumably be recalibrated to reflect a comparable difficulty.

But it will make the test less grueling and less expensive to take. And it could speed up the state bar’s notoriously slow grading process, he said.

Updated with clarification from California bar officials on the current length of the performance tests.

Article reposted from ABA Journal

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Why Hollywood loves lawyers

Posted By Administration, Friday, July 31, 2015

Academy Award-winning actress and Harvard heartthrob Natalie Portman announces that she has signed on to do a biopic on the life of Supreme Court Justice Ruth Bader Ginsburg, and law lovers everywhere come to a halt—Bluebooks drop in mid cite-check, throats go dry at oral arguments, billable hours stop for a minute (actually, just a second), and court watchers turn off Judge Judy and long for selfies with the glamorous Portman dressed in a black robe.

Football is America’s game, but movies are its favorite form of entertainment. And movies about the law are as essential to Hollywood history as cowboy Westerns or romantic comedies. Heroism that acquits the falsely accused will hold its own against any nonstop action flick.

When the American Film Institute published its list “100 Years … 100 Heroes & Villains,” defense attorney Atticus Finch from To Kill a Mockingbird topped the list, beating out Indiana Jones and James Bond. Finch, however, didn’t need a whip or gadgets from Q to earn the title or thrill moviegoers worldwide.

Read the whole story at ABA Journal

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California Warehouses Mentally Ill, ACLU Says

Posted By Administration, Thursday, July 30, 2015

California "warehouses" mentally ill criminal defendants in jails without treatment for months, often in defiance of judicial orders, five inmates and their families claim in court.
This denies them speedy trials, prevents them from gaining mental competency so they can stand trial, and the state lets them "languish in jail for months even after the court has ordered them committed for competency restoration," the plaintiffs and the ACLU say in their July 29 complaint in Alameda County Court. "It is often only when a judge threatens to hold the state officials in contempt for failing to obey the commitment order that the defendant is finally admitted to an appropriate treatment facility."
Plaintiff Nancy Leiva says her incompetent son was raped repeatedly in Los Angeles County Jail, where he was held for 8 months after the court ordered him committed to a state hospital. He was arrested on Sept. 9, 2011; found incompetent to stand trial on Dec. 6, 2012 and ordered to be committed to the Porterville Development Center for treatment, but spent the next 8 months in the county jail.

Read the whole story at Courthouse News Service

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State high court taking up license-plate scanning case

Posted By Administration, Thursday, July 30, 2015

The state Supreme Court agreed Wednesday to decide when the public can see records of high-tech police monitoring programs like the scanners that officers use to record millions of license plate numbers.

A state appeals court ruled in May that scanning programs used by Los Angeles police and sheriff’s officers were part of a criminal investigation and thus off-limits to the public. Authorities said officers were collecting the information to look for auto thieves and other criminals.

Most Bay Area communities also have automated license scanners on officers’ cars or at fixed locations, and some have already cited the Los Angeles case as authority to withhold their records, said attorney Jennifer Lynch of the Electronic Frontier Foundation. Her group and other civil liberties advocates asked the state high court to take the case.

The court unanimously set the appellate ruling aside Wednesday and will hear arguments at a later date.

Read the whole story at SF Gate

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Botched wills can be fixed after death, state high court says

Posted By Administration, Wednesday, July 29, 2015

Like any written document — contracts, insurance policies, even news stories — a person’s last will can contain inadvertent errors, such as a mistaken name or a garbled number. But with the drafter unavailable to set things straight, botched wills have been set in stone in California, beyond the power of any judge to correct them. At least until now.

In a dispute over a multimillion-dollar estate, the California Supreme Court unanimously overturned a 50-year-old precedent and set aside centuries of legal doctrine Monday in ruling that a will that seems clear on its face can be revised, after death, if there is strong evidence that the words didn’t reflect the drafter’s intent.

Clinging to the old rules, and refusing to change unintended provisions in a will, would “unjustly enrich those who would inherit as a result of a mistake,” Chief Justice Tani Cantil-Sakauye said in the 7-0 ruling.

Read the whole story at SF Gate

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Los Angeles Council Passes Ban on High-Capacity Firearm Magazines

Posted By Administration, Wednesday, July 29, 2015

Responding to the recent rash of mass shootings across the country, the Los Angeles City Council unanimously voted on Tuesday to ban the possession of firearm magazines that can hold more than 10 rounds of ammunition.

The Council said the ordinance would close a loophole in a state law, which already bans the sale and manufacture of such magazines. Mayor Eric Garcetti said he would sign the ordinance.

Anyone who already owns high-capacity magazines will have 60 days to remove them from the city or turn them over to the Police Department, which will then destroy, transfer or sell them.

New York State passed a similar law in 2013 shortly after the shootings in Newtown, Conn., in which 20 children and six staff members at Sandy Hook Elementary School were killed.

Read the whole story at NY Times

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Former Court Exec Spams Judges

Posted By Administration, Wednesday, July 29, 2015

Curtis Child, a former executive with the Administrative Office of the Courts, has miffed some judges around the state after sending a widespread email touting the virtues of his new employer, CourtCall LLC.

Child's emails went out in early July to judges, Judicial Council employees and at least one reporter. In the missive, Child said that he started a new job on July 1 as director of court and government affairs for CourtCall, which offers audio and video services allowing attorneys to appear remotely for court proceedings.

"I hope that we will have the opportunity to work together on ways to create greater efficiencies in the judicial process," Child wrote. "I will be in touch but please feel free to contact me anytime if I can provide any assistance or information about CourtCall's services."

CourtCall, which operates across the United States and internationally, is the sole provider of remote-appearance services in California courts.

Read the whole story at The Recorder

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more Calendar

4/26/2018
Diversity Happy Hour

5/2/2018
Fourth Annual Law Day Mixer

5/3/2018
How the DA Office's Real Estate Fraud Unit Prosecutes and Can Clear Title on Forged Instrument Cases

Recent Recognitions
Hon. Julie A. Emede2017 Outstanding Jurist of the Year
Hon. Edward J. Davila2017 Diversity of the Year

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