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US Supreme Court tilts to the right — but how far will it go?

America’s highest court has undeniably shifted to the right in its first term following the death of liberal icon Ruth Bader Ginsburg, experts say, with a core bloc of conservative justices wielding their influence to shift decisions.

But the Supreme Court’s nine justices have handed down nearly 70 decisions this term that, taken as a whole, paint a more nuanced picture than some conservatives may have hoped when Amy Coney Barrett was sworn in last year as Ginsburg’s replacement — for instance, rejecting a challenge to Barack Obama’s signature healthcare law that Republicans have long hoped to overturn.

Other cases, however, have thrown the 6-3 conservative majority’s power into sharp relief, such as a ruling upholding two Arizona voting laws that opponents said discriminated against racial minorities, which was decided on the term’s last day and split neatly along ideological lines.

The court’s appetite for compromise will be put to the test when it returns in the autumn to an agenda that already includes contentious issues such as abortion and gun rights.

“Undoubtedly, having Amy Coney Barrett, who is pretty conservative, replace Ruth Bader Ginsburg, who was very liberal, that clearly does make a difference,” said Ilya Somin, a law professor at George Mason University and an adjunct scholar at the libertarian Cato Institute.

“On the other hand . . . it is wrong to say that this is a monolithically conservative court which is going to radically revamp huge areas of constitutional law,” he added.

Legal experts point to a group of four Republican-appointed justices — chief justice John Roberts and Donald Trump appointees Neil Gorsuch, Brett Kavanaugh and Barrett — as having the ability to decide cases.

Diagonal correlation matrix showing the percent of the time Supreme Court justices agreed with each other in decisions made during the October 2020 term. Chief Justice John Roberts voted with Justices Stephen Breyer and Elena Kagan about as often as he voted with Justice Clarence Thomas

“Any two of them can join with the three Democrats, and have joined with the three Democrats,” said Lee Epstein, a law professor at Washington University in St Louis. “It is not . . . a court where the Democrats are going to lose every single case.”

One widely-cited ruling is the court’s 7-2 opinion dismissing the latest Republican challenge to the Affordable Care Act. Stephen Breyer wrote the majority opinion, joined by the two other liberal justices — Sonia Sotomayor and Elena Kagan — and four conservative colleagues. The seven justices agreed the plaintiffs had no grounds to sue given they had not suffered any harm under Obama’s flagship healthcare reforms. Neil Gorsuch and Samuel Alito dissented.

Another is the court’s unanimous decision siding with student athletes who brought an antitrust challenge against the National Collegiate Athletic Association. The nine justices agreed that restrictions set by the NCAA on scholarships and other benefits were unfair.

“The mix of justices these days is fascinating,” said Jonathan Turley, a professor at the George Washington University Law School. “Most of the opinions did not show the type of clear demarcation or robotic responses that critics have suggested.”

Progressives are nevertheless fearful that the court could lurch further to the right next year, when the bench will hear cases on two of the most politically divisive issues in America: abortion and guns.

Decisions on both are expected in the spring or summer of 2022 — just months before the midterm elections, when both chambers of Congress will be up for grabs.

Line chart of % of cases in each term showing Uptick in unanimous or near-unanimous Supreme Court decisions

The abortion case challenges Roe vs Wade, the 1973 decision that enshrined a constitutional right to an abortion. It centres on a Mississippi state law that bans abortions after 15 weeks. The gun case questions how far states can go in regulating gun rights, particularly when weapons are carried outside of one’s home.

Legal experts say they expect the conservative majority to rule in a way that satisfies the “pro-life” or anti-abortion movement, as well as gun owners who bristle at any limitations on their Second Amendment rights.

Progressive activists are already on alert after the court’s ruling on the Arizona voting laws. “When it comes to cases dealing with democracy and the right to vote, the Republican justices act as a bloc,” said Brian Fallon, executive director of left-leaning group Demand Justice. “Democrats need to treat this like the emergency situation it is.”

It is unclear how far the bench will be willing to go in upsetting previous Supreme Court decisions in the term ahead — particularly at a time when Roberts and the associate justices have indicated they want the court to be seen as an august, independent institution outside the realm of partisan politics.

“By any metric, it is the most conservative court in recent memory,” said Debo Adegbile, a partner at the law firm Wilmer Hale. “But the court is an institution. It is an institution that has to think about its legitimacy and credibility in a very fractured political environment and in a very fractured nation.”

Somin of George Mason University said he thought it was “likely” that the conservative majority moved the needle in a “more conservative direction . . . but it matters a lot exactly how much they will move it, and that is far from clear”.

“My guess is they want to allow restrictions on abortion, loosen restrictions on guns, and so on,” said Epstein of Washington University in St Louis. “But how far are they willing to go?”

Additional reporting by Christine Zhang in New York

Author: Lauren Fedor in Washington
Read more here >>> International homepage

Supreme Court, NCAA decisions embolden advocates for college athlete compensation in California

California’s landmark law allowing college athletes to sign paid endorsement deals started a national movement.

CALIFORNIA, USA — This story was originally published by CalMatters.

Advocates for college athlete compensation in California are on a hot streak. First the state passed a first-in-the-nation law allowing players to sign paid endorsement deals, and 20 states followed its example. Now, with both a recent U.S. Supreme Court decision and a National Collegiate Athletic Association rule change challenging the idea that students shouldn’t make money from athletics, legislators are pushing to move up the effective date of the California law to this fall and expand it to cover community college athletes.

“The amateurism ideals have been weakening over time, not only with just player movements, advocate movements, but also because of litigation that’s currently playing out,” said Eddie Comeaux, a professor of higher education at UC Riverside who studies college athletics.

The NCAA has previously barred athletes from earning money for their performance, aside from scholarships. But the Supreme Court’s 9–0 ruling June 21 allows colleges to also cover as much as $ 6,000 per year in education-related expenses for athletes, such as laptops and study abroad programs. While it didn’t directly strike down the NCAA’s amateurism model, a concurring opinion from Justice Brett Kavanaugh signaled a willingness to do so, spurring hope among advocates that more avenues for player compensation could be on the horizon. 

Then Wednesday, the NCAA announced that it won’t penalize athletes for taking advantage of state laws like California’s that allow them to profit from the use of their name, image and likeness. 

“With the variety of state laws adopted across the country, we will continue to work with Congress to develop a solution that will provide clarity on a national level,” NCAA President Mark Emmert said in a press release. 

“The Supreme Court’s ruling basically told the NCAA you’ve got to follow the law, you’re not immune to antitrust, you cannot be a monopoly,” said state Sen. Nancy Skinner, the author of the Fair Pay to Play Act,  which passed the California Legislature in 2019. She’s now pushing a bill that amends the law to take effect Sept. 1, rather than in 2023. It passed the Assembly’s higher education committee this week, and would need to receive a two-thirds vote by the Assembly and be signed by the governor to become law.

State laws giving college athletes the ability to pursue money-making opportunities also went into effect Thursday in Georgia, Florida, Alabama, New Mexico and Mississippi. 

College athlete endorsements on social media could eventually become a $ 2 billion dollar market, said Thilo Kunkel, director of the Sport Industry Research Center at Temple University and the founder of an app called Sprter, which helps players build and monetize their personal brands. Kunkel said his research found that the average college athlete with a few thousand followers could expect to make around $ 2,000 a year in additional income from social media endorsements. 

“Most people won’t get rich off of them, but, you know, if you’re making $ 2,000 extra a year, it’s 50 bucks a week, it’s a little bit here, it’s a little bit there,” he said. 

Athletes on the Sprter app can sign endorsement deals, sell social media shoutouts and book in-person experiences such as a training session with fans. It’s just one of a number of ventures already sprouting up as the new NCAA rules take effect this week. Hanna and Haley Cavinder, twin sisters who play for Fresno State’s basketball team, told ESPN they had already signed their first endorsement deal with Boost Mobile on Wednesday.

Unlike the original Fair Play to Pay Act, Skinner’s new bill would afford California’s community college athletes the same freedom to profit from their name, image and likeness as their peers at four-year universities. The bill has the support of the California Community College Chancellor’s office. 

“Students should not have to sit by and watch others profit off of their hard work and labor without being equitably compensated for it, just because they participate in college athletics – and that includes our many community college student-athletes as well,” spokesperson Rafael Chávez said in a statement to CalMatters. 

John Beam, the athletic director and head football coach at Oakland’s Laney College, said the inclusion of the state’s community college athletes would be a huge win. He said that while not all athletes will be able to take advantage of the money-making opportunities, it’s an important first step to restoring a sense of humanity to how college athletes are treated. 

“We have kids that are hungry every day and I can’t bring, you know, Cup of Noodles in to give them,” Beam said. “We’re not talking about a meal plan, we’re talking about survival food. So I’m hoping that it trickles down to allow us to really care for our student athletes like we should.”

Athletes including Elias Escobar, a football player at Laney College, said the ability to make some extra cash could help with basic needs such as rent, food and gas money for his commute to campus. 

Being an athlete, Escobar said, is “like a full-time job and I’m not getting paid for it.” 

“There were times I didn’t even go to class because I didn’t have any gas money to put in my car, or like, I’m going to school and not eating all day,” he said.

California’s two public university systems, the University of California and California State University, said they were monitoring the bill. “UC continues to work with Senator Skinner, and members of the state Legislature, to ensure that the University is prepared for an accelerated implementation date of Sept. 1,” spokesperson Ryan King said in a statement.

Some advocates for college players want to go even further. A bill this year by state Sen. Sydney Kamlager would have required colleges to pay their athletes a royalty for use of their name, image and likeness if the revenue a sports program generates is more than double the amount it awards in athletic scholarships.  The bill, introduced when Kamlager was an Assemblymember, would also have beefed up enforcement of Title IX, the federal law barring sex discrimination in sports and other educational programs, and placed a cap on salaries for college coaches. 

It stalled in the Assembly. But the recent decisions by the Supreme Court and NCAA could pave the way for California to take more aggressive action on athlete compensation going forward, said Ramogi Huma, the executive director of the National College Players Association, which advocates for the rights of college athletes.  

“A 9-0 decision saying that this is an exploitative industry and college athletes deserve more compensation should be a green light for the state of California to once again reshape college sports in a way that’s more equitable for players,” Huma said. 

Reagan is an intern with the CalMatters College Journalism Network, a collaboration between CalMatters and student journalists from across California. This story and other higher education coverage are supported by the College Futures Foundation.

WATCH RELATED: California to let college athletes sign endorsement deals, defying NCAA (Sept. 2019)

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Author: Matthew Reagan
Read more here >>> CBS8 – Sports

Supreme Court Term Marked by Conservative Majority in Flux

The chief justice’s power waned, and the three Trump justices grew more influential. The term ended with an exclamation point, with the court imposing new limits on the Voting Rights Act.

WASHINGTON — There were two very different Supreme Courts in the term that just ended.

For much of the last nine months, the court seemed to have defied predictions that the newly expanded conservative majority of six Republican appointees would regularly steamroll their three liberal colleagues.

Rather than issuing polarized decisions split along ideological lines, the court was fluid and unpredictable. There was no longer a single swing justice whose vote would often decide close cases, as Justice Anthony M. Kennedy had until he retired in 2018, or as Chief Justice John G. Roberts Jr. did in the term that ended last summer.

Instead, the center of the court came to include four conservative justices who in various combinations occasionally joined the court’s three-member liberal wing to form majorities in divided cases.

But on Thursday, in rulings that gave states new latitude to restrict voting rights and limited disclosure requirements for big donors to charities, the court made clear that the conservative supermajority is still there, perhaps to emerge in a more assertive way in the term that starts in October, when the justices will take up blockbuster cases on abortion and gun rights.

Over the course of what was until its end a relatively placid term, there were six decisions that split 6 to 3 along ideological lines in argued cases with signed majority opinions.

Overall, the three-member liberal bloc was in the majority in 13 of the 28 divided decisions, having attracted at least two votes from the court’s six-member conservative majority. Those votes most frequently came from Chief Justice Roberts and the three newest justices, all appointed by President Donald J. Trump: Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, who joined the court in October.


Conservative Justices Most Likely to Join the Democratic Appointees

The three-member liberal bloc was in the majority in 13 of 28 nonunanimous decisions this term. How often each member of the conservative bloc joined them:




Kavanaugh

85% (11/13 cases)

Barrett

70% (7/10)

Roberts

69% (9/13)

Gorsuch

62% (8/13)

Thomas

46% (6/13)

Alito

23% (3/13)

Kavanaugh

85% (11/13 cases)

Barrett

70% (7/10)

Roberts

69% (9/13)

Gorsuch

62% (8/13)

Thomas

46% (6/13)

Alito

23% (3/13)


Note: Justice Barrett did not vote in all cases.·Source: The Supreme Court Database by Lee Epstein and Andrew D. Martin, Washington University in St. Louis, and Kevin Quinn, University of Michigan.

After steering the court through the term that ended a year ago, Chief Justice Roberts is no longer in the driver’s seat, said Lisa S. Blatt, a lawyer with Williams & Connolly who argues frequently before the court. “The loss of control by the chief justice felt palpable,” she said.

But even as Chief Justice Roberts lost power, some of the values associated with him — incrementalism and deep concern for institutional legitimacy — remained evident in at least some of the court’s work.

“Notwithstanding President Trump’s three appointments, this term suggests that it’s too early to write an obituary for the Roberts court,” said David Cole, the national legal director for the American Civil Liberties Union. “With the notable exception of its Voting Rights Act decision, in many of its most important decisions, the court adopted the sort of minimalism Roberts has long championed, and by deciding cases narrowly, reached agreement across the predicted partisan divides.”

Many of the term’s more important decisions were unanimous or lopsided. When there were dissents or aggrieved concurrences, the disgruntlement often came from the right.

The court’s ruling that the N.C.A.A. cannot bar modest payments to student-athletes was unanimous. So was, at least on the bottom line, its decision in favor of a Catholic social services agency that refused to screen same-sex couples as potential foster parents.

In that second case, though, three conservative members of the court — Justices Gorsuch, Samuel A. Alito Jr. and Clarence Thomas — issued scathing concurring opinions accusing the majority of issuing a ruling so narrow as to be useless.

The same pattern held in some decisions decided by large majorities. The one protecting the free speech rights of a cheerleader who sent vulgar Snapchat messages was 8 to 1, with only Justice Thomas dissenting. The decision rejecting the latest challenge to the Affordable Care Act was 7 to 2, with Justices Alito and Gorsuch dissenting.

There were, of course, some significant cases even before Thursday in which the Republican and Democratic appointees divided 6 to 3 along the usual lines. In one, the court ruled against a California regulation that allowed labor unions to recruit farm workers on private property. In another, the court ruled that juvenile offenders need not be deemed beyond hope of rehabilitation before they are sentenced to die in prison.

Overall, Mr. Cole said, the court was sensitive to individual rights, particularly ones favored by the right.

“The new court is definitely conservative, but that doesn’t mean it is necessarily hostile to civil liberties,” he said. “It protected many liberties that conservatives favor, including religious liberty, property rights, free speech, the privacy of the home and the right of the wealthy to donate to charities anonymously.”

The court was unanimous 46 percent of the time when all nine justices participated, about five percentage points higher than its average since 2010.


Most Common Vote Splits

The justices were more likely to vote in unison than past courts.




2020 term

5-4 cases

80-year average

6-3 cases

7-2 cases

8-1 cases

9-0 cases

0% of cases

10%

20%

30%

40%

50%

2020 term

5-4 cases

80-year average

6-3 cases

7-2 cases

8-1 cases

9-0 cases

0%

of cases

10%

20%

30%

40%


Source: The Supreme Court Database by Lee Epstein and Andrew D. Martin, Washington University in St. Louis, and Kevin Quinn, University of Michigan.

“This term bears the mark of the chief justice in several respects — narrow decisions that seem full of compromise but also decisions that confirm his decidedly conservative stripes,” said Allison Orr Larsen, a professor at William & Mary Law School. “Given the highly-charged cases to come next year, I would expect more of the latter and less of the former.”

Justice Kavanaugh was in the majority more than any other member of the court. Indeed, over his Supreme Court career, which began in 2018 after a tumultuous and highly partisan confirmation fight, he has been in the majority 87 percent of the time in divided cases, beating the career records of all justices appointed since 1937.

In the last term, Justice Kavanaugh was in the majority in divided cases 93 percent of the time, followed by the chief justice, at 86 percent, and the two other Trump appointees, Justices Barrett and Gorsuch, at 79 and 75 percent. Those four justices make up the new center of the court, according to data compiled by Lee Epstein and Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan.


How the Justices’ Ideological Scores Shifted

Chief Justice John G. Roberts Jr. and the three justices nominated by President Trump clustered in the ideological center-right of the court.




MORE LIBERAL

MORE CONSERVATIVE

Kavanaugh

Sotomayor

Ginsburg

Breyer

Kagan

Roberts

Gorsuch

Alito

Thomas

2019 term

2020 term

Barrett

2019

2020

Thomas

Alito

Gorsuch

Barrett

Kavanaugh

MORE

CONSERVATIVE

Roberts

MORE

LIBERAL

Kagan

Breyer

Ginsburg

Sotomayor

MORE LIBERAL

MORE CONSERVATIVE

Kavanaugh

Sotomayor

Ginsburg

Breyer

Kagan

Roberts

Gorsuch

Alito

Thomas

2019

term

2020

term

Barrett

2019

2020

Thomas

Alito

Gorsuch

Barrett

Kavanaugh

MORE

CONSERVATIVE

Roberts

MORE

LIBERAL

Kagan

Breyer

Ginsburg

Sotomayor


Justices are sorted left to right by their Martin-Quinn scores, which estimate ideology based on voting patterns.·Source: The Supreme Court Database by Lee Epstein and Andrew D. Martin, Washington University in St. Louis, and Kevin Quinn, University of Michigan.

Before the death of Justice Ruth Bader Ginsburg in September and the arrival of Justice Barrett the next month, voting patterns at the court were more predictable, with four-member liberal and conservative wings and Chief Justice Roberts in the middle.

This term, several justices mostly shared a generally cautious approach, Ms. Blatt said.

“Chief Justice Roberts and Justices Kavanaugh and Barrett strike me as institutionalist,” she said, “meaning they recognize that their place in our constitutional structure depends in large part on the public’s acceptance of the court as an independent branch of government free from politics.”

Justice Barrett is still coming into focus, and early voting patterns can be deceiving. Studies have shown that there are “freshman effects” on the Supreme Court that do not always predict long-term trends. Early in their tenures, for instance, justices are less apt to dissent.

Data on argued cases do not take account of the court’s “shadow docket,” which includes rulings on emergency applications decided after only rushed briefings, without oral arguments and often in late-night orders that contain little or no reasoning. During the Trump administration, such rulings spiked, and the court decided many important cases in such cursory fashion.

Some of those decisions demonstrated the impact of the arrival of Justice Barrett more vividly than the regular docket. Before Justice Ginsburg died, the court sustained state restrictions on attendance at religious services prompted by the coronavirus pandemic. The votes were 5 to 4, with Chief Justice Roberts joining what was then a four-member liberal wing to form majorities in cases from California and Nevada.

After Justice Barrett joined the court, it started to strike down similar restrictions, again by a 5-to-4 vote, with the chief justice now in dissent. Those rulings did more than decide isolated disputes. They articulated a new understanding of the scope of the Constitution’s protection of the free exercise of religion, one that critics said should have been the product of more sustained and careful deliberation.

Something similar happened in a series of emergency applications in election disputes, where shifting majorities of justices tended to rule that federal courts should not change voting procedures enacted by state legislatures even as they declined to interfere when state courts or agencies change those procedures.

But the court in December soundly rejected a lawsuit by Texas asking it to throw out the election results in four battleground states that Mr. Trump had lost. Two months later, the court rejected Mr. Trump’s last-ditch effort to shield his financial records from prosecutors in New York, with no noted dissents.

Justice Stephen G. Breyer, 82, “played a starring role this term,” Ms. Blatt said. Indeed, Justice Breyer — the target of pressure from some activists on the left to retire at the end of the term to ensure that his successor would be considered by the Senate while Democrats control the chamber — wrote consequential majority opinions in several cases, including the ones on the Affordable Care Act and students’ First Amendment rights.


Agreement Among the Justices

While the highest levels of agreement were among justices in the same ideological blocs, some pairs, particularly among the more conservative justices, agreed much less often than they did last term.




91%

Breyer-Sotomayor

Highest

agreement

Kavanaugh-Roberts

91

Gorsuch-Thomas

83

Sotomayor-Thomas

Lowest

agreement

26%

Alito-Kagan

26

Gorsuch-Sotomayor

26

Alito-Sotomayor

22

Last term

68%

Kagan-Roberts

Agreed less

than last term

39%

85

Alito-Thomas

61

50

Gorsuch-Sotomayor

26

79

Gorsuch-Roberts

57

24%

Kagan-Thomas

Agreed more

than last term

48%

65

Gorsuch-Thomas

83

74

Breyer-Sotomayor

91

65

Alito-Roberts

78

Highest agreement

Breyer-Sotomayor

91%

Kavanaugh-Roberts

91

Gorsuch-Thomas

83

Lowest agreement

Sotomayor-Thomas

26%

Alito-Kagan

26

Gorsuch-Sotomayor

26

Alito-Sotomayor

22

Last term

Agreed less

than last term

68%

Kagan-Roberts

39%

85

Alito-Thomas

61

50

Gorsuch-Sotomayor

26

79

Gorsuch-Roberts

57

Agreed more

than last term

24%

Kagan-Thomas

48%

65

Gorsuch-Thomas

83

74

Breyer-Sotomayor

91

65

Alito-Roberts

78


Source: The Supreme Court Database by Lee Epstein and Andrew D. Martin, Washington University in St. Louis, and Kevin Quinn, University of Michigan.

On the whole, Justice Breyer’s voting record in the last term tilted left. He voted with Justice Sonia Sotomayor, the court’s most liberal member, 91 percent of the time in divided cases in which all of the justices participated, up 18 percentage points from the previous term. Only one other pair of justices agreed that often: Chief Justice Roberts and Justice Kavanaugh, also at 91 percent.

At the other end of the spectrum, Justices Alito and Sotomayor agreed just 22 percent of the time. And there were signs of division on the right side of the court. Justices Gorsuch and Kavanaugh, Mr. Trump’s first two appointees, agreed 65 percent of the time, down 20 percentage points from the previous term.

The court decided just 54 argued cases with signed opinions, the second-smallest number since the 1860s. The smallest was in the last term, at 53.


The Court is Deciding Fewer Cases

The number of decisions in argued cases has fallen fairly steadily since the 1980s.




150

100

50

54 decisions

1980

1990

2000

2010

2020

150

100

50

54 decisions

1980

1990

2000

2010

2020


Source: The Supreme Court Database by Lee Epstein and Andrew D. Martin, Washington University in St. Louis, and Kevin Quinn, University of Michigan.

The court’s docket in the term that starts in October may not be larger, but it will contain at least two potentially far-reaching cases: a challenge to the constitutional right to abortion established in Roe v. Wade and the most important Second Amendment case in more than a decade.

Marin K. Levy, a law professor at Duke, said the decision issued on Thursday upholding voting restrictions in Arizona “fundamentally changed how this term will be remembered.”

“It puts an exclamation point on what had otherwise been a fairly quiet term,” she said. “It also sets the tone for next year, when the court will hear cases on hot-button topics including gun regulation and abortion.”

Author: Adam Liptak and Alicia Parlapiano
Read more here >>> NYT > Top Stories

US Supreme Court to hear case involving Austin's ordinance on billboards

AUSTIN (KXAN) — A case involving the City of Austin will be heard before the U.S. Supreme Court during the next term, starting October 2021.

The City of Austin, Texas v. Reagan National Advertising of Texas Inc. will take a look at the City’s ordinance regarding billboards.

Austin’s local ordinance allows businesses to use digital billboards on-premises, but digital off-premises signs are not permitted.

Reagan National Advertising of Texas Inc. applied for permits to digitize 84 off-premises billboards and sued the City when the permits were denied, according to the Supreme Court docket.

The Supreme Court will answer the question of whether Austin’s distinction between on and off-premises signs is unconstitutional.

A spokesperson for the City told KXAN it believes Austin’s ordinances allow “ample room for free speech in advertising.”

“The City welcomes the United States Supreme Court’s action taking up review of the constitutionality of our local ordinance regulating billboards. Cities all across the country, including Austin, must grapple with balancing the public policy needs of ensuring traffic safety and protecting local aesthetic values, while also allowing ample room for free speech in advertising. We believe our ordinances do that and are pleased that the Court now has given us an opportunity to explain why what we’ve done achieves the correct balance.”

City of Austin spokesperson

Author: Andrew Schnitker
This post originally appeared on KXAN Austin

EXPLAINER: The Supreme Court ruling against the NCAA

WASHINGTON — A Supreme Court ruling that went against the NCAA could open the door to schools using unlimited benefits tied to education to recruit top athletes.

The NCAA’s loss in a 9-0 decision will not directly lead to play-for-pay in college athletics, but it did clear a path for future legal challenges that could be even more impactful.

RELATED: High court sides with former athletes in dispute with NCAA

RELATED: Conferences urge stopgap for NCAA on NIL until federal law

Here’s what to know:

THE CASE

The original lawsuit brought by former West Virginia running back Shawne Alston challenged the NCAA’s right to cap compensation to Division I football and basketball players at the value of a scholarship.

The lower court’s decision went against the NCAA. In a narrow ruling, a judge said the NCAA could not cap benefits to athletes that are tied directly to education. The court left it up to the NCAA to define educational benefits but the NCAA appealed and lost.

The case was the first involving the NCAA heard by the Supreme Court since 1984.

WHAT ARE THE BENEFITS?

They are some of the costs associated with being a student, costs a school could pick up for an athlete. Examples include a study abroad program, a paid internship or an athlete’s school computer.

WHAT DOES IT MEAN?

The ruling doesn’t mandate that schools pay athletes. It only prevents the NCAA from standing in the way of educational benefits.

Schools and even conferences could impose their own rules or caps, but plaintiffs’ lawyers believe teams competing against each other on the field will look for ways to gain an advantage through these benefits and recruits will capitalize on the market.

WHEN CAN ATHLETES BEGIN TAKING ADVANTAGE?

Schools could start offering athletes in those high profile sports things like internships, laptops or even cash bonuses tied to academics or graduation effective immediately.

Still, it is more likely that conferences, schools and even the NCAA will take time to clarify the original ruling and come up with some guidelines and definitions about what is permitted. Overall value, though, cannot be capped.

THE NCAA’S BIG PROBLEM

The lower court’s ruling itself is not the NCAA’s biggest headache. The Supreme Court’s decision also left the NCAA open to more legal challenges and stripped it of one of its best defenses.

Justice Neil Gorsuch wrote in the majority decision that the 1984 Board of Regents case, which went against the NCAA but also gave the association some cover against antitrust law, no longer need be adhered to by courts in future cases.

“It’s certainly notable that there was unanimous opinion that Board of Regents does not support the NCAA’s restrictions on athlete compensation,” said Gabe Feldman, director of Tulane’s sports law program. “That was the key argument in every case the NCAA had made (in court). Not only that Board of Regents supports it, but that Board of Regents means that all NCAA rules are essentially legal.

“That’s the language they were hoping to get from the court. Instead they got that the language means nothing. Board of Regents provides no support.”

Feldman said unless the NCAA can get some type of antitrust exemption from Congress the lawsuits might never stop. The NCAA has already been asking for protection from Congress in the form of a federal law that would regulate the way athletes can be compensated for use of their names, images and likenesses.

“The silver lining for the NCAA — it’s a faint silver lining — is that this theoretically strengthens their argument in Congress that if they don’t get an antitrust exemption they’re going to get sued into oblivion,” Feldman said. “And it’s only a matter of time before antitrust law destroys the NCAA’s vision of amateurism.”

Author:
This post originally appeared on CBS8 – Sports

In N.C.A.A. Case, Supreme Court Backs Payments to Student-Athletes

In April, Mark Emmert, the N.C.A.A. president, said he was looking for “clarity about what the law is, clarity about who has responsibility for what, clarity about how these issues will be decided, whether through congressional processes, through legal processes or through N.C.A.A. decision-making processes.”

In Monday’s decision, Justice Neil M. Gorsuch, writing for the court, took a measured approach, saying his task was merely to assess a limited injunction entered by a trial judge, one that allowed payments for things like musical instruments, scientific equipment, postgraduate scholarships, tutoring, study abroad, academic awards and internships. It did not permit the outright payment of salaries.

“Some will think the district court did not go far enough,” Justice Gorsuch wrote. “By permitting colleges and universities to offer enhanced education-related benefits, its decision may encourage scholastic achievement and allow student-athletes a measure of compensation more consistent with the value they bring to their schools. Still, some will see this as a poor substitute for fuller relief.”

“At the same time, others will think the district court went too far by undervaluing the social benefits associated with amateur athletics,” he added.

Justice Kavanaugh’s concurring opinion was bolder.

“The N.C.A.A. couches its arguments for not paying student athletes in innocuous labels,” he wrote. “But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”

“All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks,” he wrote. “Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a ‘love of the law.’”

“Price-fixing labor is price-fixing labor,” Justice Kavanaugh wrote. “And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”

Author: Adam Liptak and Alan Blinder
This post originally appeared on NYT > Top Stories

Obamacare Survives Latest Supreme Court Challenge

WASHINGTON — The Affordable Care Act on Thursday survived a third major challenge as the Supreme Court, on a 7-to-2 vote, turned aside the latest effort by Republicans to kill the health care law.

The legislation, President Barack Obama’s defining domestic legacy, has been the subject of relentless Republican hostility. But attempts in Congress to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law gained popularity and became woven into the fabric of the health care system.

On Thursday, in what Justice Samuel A. Alito Jr. called, in dissent, “the third installment in our epic Affordable Care Act trilogy,” the Supreme Court again sustained the law. Its future now seems secure and its potency as a political issue for Republicans reduced.

The margin of victory was wider than in the earlier cases, with six members of the court joining Justice Stephen G. Breyer’s modest and technical majority opinion, one that said only that the 18 Republican-led states and two individuals who brought the case had not suffered the sort of direct injury that gave them standing to sue.

Chief Justice John G. Roberts Jr., who had cast the decisive vote to save the law in 2012, was in the majority. So was Justice Clarence Thomas, who had dissented in the earlier decisions.

“Whatever the act’s dubious history in this court,” Justice Thomas wrote in a concurring opinion, “we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act — they have not identified any unlawful action that has injured them.”

Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett also joined Justice Breyer’s majority opinion. At Justice Barrett’s confirmation hearings last year, Democrats portrayed her as a grave threat to the health care law.

The court did not touch the larger issues in the case: whether the bulk of the law could stand without a provision that initially required most Americans to obtain insurance or pay a penalty.

“This ruling reaffirms what we have long known to be true: the Affordable Care Act is here to stay,” Mr. Obama said on Twitter.

In the 11 years since Mr. Obama signed the legislation into law, Republicans have assailed the Affordable Care Act as a step toward socialized medicine, government intrusion into health care decisions and a costly boondoggle.

They challenged it on a variety of fronts in the courts and made calls for its repeal a staple of their campaigns. But some of its provisions, like coverage for pre-existing conditions and for adult children up to age 26, proved popular across party lines. Even when they controlled the Senate, the House and the White House, Republicans failed to muster the votes to repeal the law — and despite President Donald J. Trump’s promises to deliver a better alternative, he never produced a detailed proposal of his own.

While health care remains a potent political issue — and the Affordable Care Act has shortcomings Democrats have acknowledged — the latest court ruling suggests that Republican chances of winning a legal battle to kill it are now much diminished.

“With millions of people relying on the Affordable Care Act for coverage, it remains, as ever, a BFD,” President Biden said on Twitter after the ruling, alluding to his obscenity-punctuated comment to Mr. Obama on the day in March 2010 the bill was signed into law that the legislation was a big deal. Mr. Biden has signaled that he now wants to build on the legislation through a series of steps to expand access to health care.

Republicans were critical of the decision but suggested the battle would now focus on the policy fight in Congress.

“The failed Obamacare system will stagger on as a result of this decision,” said Senator John Barrasso, Republican of Wyoming.

“Every American’s health care has been harmed by Obamacare,” he said. “Republicans remain focused on making health care more affordable for families in Wyoming and around the country. Democrats keep pouring money into Obamacare instead of fixing the many problems facing patients and health care providers.”

The challengers in the case sought to take advantage of the 2012 ruling, in which Chief Justice Roberts upheld a central provision of the law, its individual mandate requiring most Americans to obtain health insurance or pay a penalty, saying it was authorized by Congress’s power to levy taxes.

They argued that the mandate became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because it could no longer be justified as a tax. They went on to say that this meant the rest of the law must also fall.

The challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

Justice Breyer did not address most of the arguments that were the basis of those decisions, focusing instead on whether the plaintiffs were entitled to sue at all.

The two individuals, he wrote, suffered no harm from a toothless provision that in effect merely urged them to obtain health insurance. Similarly, he wrote, the states did not sustain injuries tied directly to the elimination of the penalty that had been part of the individual mandate.

The states argued that the revised mandate would cause more people to take advantage of state-sponsored insurance programs. Justice Breyer rejected that theory.

“The state plaintiffs have failed to show,” he wrote, “that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.”

“Neither logic nor intuition suggests that the presence of the minimum essential coverage requirement would lead an individual to enroll in one of those programs that its absence would lead them to ignore,” Justice Breyer wrote. “A penalty might have led some inertia-bound individuals to enroll. But without a penalty, what incentive could the provision provide?”

In a vigorous dissent, Justice Alito, joined by Justice Neil M. Gorsuch, said the third installment of the court’s Affordable Care Act trilogy “follows the same pattern as Installments 1 and 2.”

“In all three episodes, with the Affordable Care Act facing a serious threat,” he wrote, “the court has pulled off an improbable rescue.”

Justice Alito wrote that the court has routinely found that states have standing to challenge federal initiatives. “Just recently,” he wrote, “New York and certain other states were permitted to challenge the inclusion of a citizenship question in the 2020 census even though any effect on them depended on a speculative chain of events.”

He said there were “novel questions” about whether the individual plaintiffs could sue. But “the states have standing for reasons that are straightforward and meritorious,” he wrote. “The court’s contrary holding is based on a fundamental distortion of our standing jurisprudence.”

Unlike the majority, Justice Alito went on to address the larger issues in the case, California v. Texas, No. 19-840, saying the mandate was now unconstitutional and could not be severed from much of the rest of the law.

Had Justice Alito’s view prevailed, the nation’s health care system would have experienced an earthquake.

Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people — a nearly 70 percent increase — according to recent estimates from the Urban Institute.

The biggest loss of coverage would have been among low-income adults who became eligible for Medicaid under the law after most states expanded the program to include them. But millions of Americans would also have lost private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

A ruling against the law would also have doomed its protections for Americans with past or current health problems. The protections bans insurers from denying them coverage or charging them more for pre-existing conditions.

“Today’s decision means that all Americans continue to have a right to access affordable care, free of discrimination,” said Xavier Becerra, the secretary of health and human services, who in his previous job as California’s attorney general helped defend the law in Thursday’s case.

Mr. Biden has said he wants to build on the Affordable Care Act through steps like expanded health insurance subsidies, and some Democrats are pushing for bigger proposals like expanding Medicare coverage to more people.

Republicans suggested on Thursday that their focus would now be less on seeking to repeal the law than on the debate in Congress and on the campaign trail for 2022 over how to address issues like the affordability of health insurance.

“While the Supreme Court ruled today that states do not have standing to challenge the mandate, the ruling does not change the fact that Obamacare failed to meet its promises and is hurting hard-working American families,” the three top Republicans in the House, Representatives Kevin McCarthy, Steve Scalise and Elise Stefanik, said in a statement. “Now, Congress must work together to improve American health care.”

Author: Adam Liptak
This post originally appeared on NYT > Top Stories

‘Alito was just pissed’: Trump’s Supreme Court breaks down along surprising lines

“We’re arguing about the battles among the conservatives and when that coalition breaks and where it goes,” lamented Harvard Law School lecturer Nancy Gertner, a former federal judge. “It’s a dramatic difference from only two or three years ago.”

Leading the charge from the right in both cases Thursday was Justice Samuel Alito, who penned caustic opinions taking his colleagues to task for issuing narrow rulings that seemed to him to be aimed at defusing political tensions rather than interpreting the law.

“After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I,” Alito wrote in the foster-care case, notwithstanding the Catholic charity’s unanimous victory.

In the Obamacare dispute, Alito sarcastically accused the majority of repeatedly indulging in flights of legal sophistry to avoid the politically unpalatable step of striking down the landmark health care law.

“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” Alito wrote. “A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”

While Alito observed the court’s traditional decorum by railing at “the majority,” there was little doubt his criticism was aimed primarily at Chief Justice John Roberts, who provided the pivotal vote to uphold Obamacare nine years ago and voted Thursday to leave the law intact by concluding that the Republican-led states seeking to overturn it lacked legal standing to sue.

In the latest Obamacare case, the chief justice left authorship of the majority opinion to the court’s second-longest-serving justice, Stephen Breyer, but the result was vintage Roberts: a largely-technical, 7-2 decision finding a lack of standing for the states and individuals challenging the law, while pushing aside more fundamental questions about the law’s constitutionality.

Roberts was the author of the opinion the court issued Thursday finding very narrow grounds to strike down Philadelphia’s ban on Catholic Social Services due to its policy against vetting same-sex couples for foster care.

Alito complained that Roberts’ reading of the Philadelphia ordinance and a similar state law was so Talmudic that it meant nothing in other cases and could quickly be evaded by the city through minor changes.

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote derisively.

Despite the obviously tense Alito-Roberts dynamic, what unfolded Thursday at the court was not simply a one-on-one grudge match. It was more like a tag-team wrestling event, with Justice Neil Gorsuch repeating much of Alito’s criticism and the court’s newest conservative justices — Amy Coney Barrett and Brett Kavanaugh — coming to Roberts’ defense.

“Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side,” Gorsuch wrote in the foster-care case, in an opinion joined by Alito and Justice Clarence Thomas. “Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”

Roberts seemed intent on not taking the bait. His majority decision made only a single, passing reference to Alito’s hulking dissent and chose to focus more on Gorsuch’s, which the chief curiously called “the concurrence.”

Roberts said the way the anti-discrimination ordinance and policy applied left the case open to resolution on that basis and meant the court had “no occasion” to use the case to reconsider a 21-year-old precedent that Alito views as hostile to religious freedom.

Barrett chimed in to say that while she agreed with Alito that the precedent is flawed, there was “no reason” to overrule it now. Kavanaugh seconded that view, also throwing in with the chief on the point.

Will the split among conservatives persist?

It’s not yet clear whether the internecine fighting among the high court’s conservatives has any long-term impact in other cases. The cases the court took this term are generally considered to be middling in significance, but the justices have accepted an abortion case to be heard in the fall that could upend or cut back the constitutional right to abortion the court found in the landmark 1973 case, Roe v. Wade.

Still, some scholars doubt that precedent is truly in jeopardy and insist that the tendency of justices like Kavanaugh and Barrett to side with Roberts in some contentious cases undermines the idea of a six-justice conservative majority.

“I think you have a three-three-three court,” said South Texas College of Law Professor Josh Blackman. “I disagree with the notion that we have a six-member conservative majority on many of these divisive issues.”

Some analysts suspect the vocal public tiff the conservatives aired Thursday may be, in part, due to gripes about horse-trading done by Breyer.

The unusual length and painstaking detail in Alito’s opinion in the Philadelphia case made some courtwatchers wonder if it might have been drafted as a majority opinion, but later lost that status due to a shift from the court’s initial vote. A similar scenario played out in the Obamacare case back in 2012, according to reports from CBS News and elsewhere.

Alito’s lament Thursday about more than six months of “post-argument cogitation” in the same-sex foster case dispute also fuels suspicion that something more than the routine exchange of opinions went on.

“Alito’s 77-page Fulton concurrence has me thinking that Roberts did actually assign him the original majority decision and himself the Obamacare decision until Breyer engineered a bipartisan coup in Fulton that Roberts took for himself while reassigning Obamacare to Breyer,” Mike Sacks, an attorney and legal reporter for WNYW-TV in New York, wrote on Twitter.

Blackman said he, too, thinks something unusual played out in the foster-care case.

“I got that vibe,” the professor said. “I think Alito was just pissed. He was frustrated.”

Author: Josh Gerstein
This post originally appeared on Politics, Policy, Political News Top Stories

Texas-led lawsuit against ‘Obamacare’ thrown out by US Supreme Court

Texas-led lawsuit against Obamacare
In this Nov. 5, 2020 file photo, The Supreme Court is seen in Washington. (AP Photo/J. Scott Applewhite)

WASHINGTON (KXAN/AP) — The United States Supreme Court threw out a lawsuit Thursday against the Affordable Care Act led by Texas Attorney General Ken Paxton.

The high court voted 7-2 against the challenge to the Obama-era health care act, saying Texas and other Republican-controlled states listed as plaintiffs didn’t prove “fairly traceable” injuries or harm by the act and had no legal standing to bring the case to federal court. The vote leaves the entire law intact, and it’s the third major challenge to the act signed into law in 2010.

The court didn’t vote on the merits of the case, just that the states didn’t have proper standing to file it in federal court. Theoretically, the law can still be challenged if potential plaintiffs can prove they’ve been harmed in some way by the legislation.

Justices Samuel Alito and Neil Gorsuch were the dissenting votes. Brett Kavanaugh and Amy Coney Barrett, two of three former President Donald Trump appointees to the court, voted with the majority.

The law’s major provisions include protections for people with pre-existing health conditions, a range of no-cost preventive services and the expansion of the Medicaid program that insures lower-income people, including those who work in jobs that don’t pay much or provide health insurance.

Also left in place is the law’s now-toothless requirement that people have health insurance or pay a penalty. Congress rendered that provision irrelevant in 2017 when it reduced the penalty to zero.

The elimination of the penalty had become the hook that Texas and other Republican-led states, as well as the Trump administration, used to attack the entire law. They argued that without the mandate, a pillar of the law when it was passed in 2010, the rest of the law should fall, too.

With a more conservative Supreme Court that includes three Trump appointees, opponents of “Obamacare” hoped a majority of the justices would finally kill off the law they have been fighting against for more than a decade.

However, the third major attack on the law at the Supreme Court ended the way the first two did — with a majority of the court rebuffing efforts to gut the law or get rid of it altogether.

Political News by: Billy Gates, Associated Press

Author: Billy Gates
This post originally appeared on KXAN Austin

Supreme Court Backs Catholic Social Services in Case on Gay Rights and Foster Care

WASHINGTON — The Supreme Court on Thursday unanimously ruled that Philadelphia may not bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.

Chief Justice John G. Roberts Jr., writing for six members of the court, said that since the city allowed exceptions to its policies for some other agencies it must also do so in this instance. The Catholic agency, he wrote, “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

The decision, in the latest clash between anti-discrimination principles and claims of conscience, was a setback for gay rights and further evidence that religious groups almost always prevail in the current court.

Philadelphia stopped placements with the agency, Catholic Social Services, after a 2018 article in The Philadelphia Inquirer described its policy against placing children with same-sex couples. The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.

Lawyers for the city said the case, Fulton v. City of Philadelphia, No. 19-123, was an easy one. When the government hires independent contractors like the Catholic agency, they said, it acts on its own behalf and can include provisions barring discrimination in its contracts.

Lawyers for the agency responded that it merely wanted to continue work that it had been doing for centuries, adding that no gay couple had ever applied to it. If one had, they said, the couple would have been referred to another agency.

A unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the agency. The city was entitled to require compliance with its nondiscrimination policies, the count said.

The case was broadly similar to that of a Colorado baker who refused to create a wedding cake for a same-sex couple.

In 2018, the Supreme Court refused to decide the central issue in that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission: whether businesses may claim exemptions from anti-discrimination laws on religious grounds. It ruled instead that the baker had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion.

The foster care agency relied on the Colorado decision, arguing that it too had been subjected to hostility based on anti-religious prejudice. The city responded that the agency was not entitled to rewrite government contracts to eliminate anti-discrimination clauses.

Last year, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., appeared to urge the court to reconsider the 2015 decision that established a constitutional right to same-sex marriage, Obergefell v. Hodges, saying it stigmatized people of faith who objected to those unions.

In his majority opinion in the Obergefell decision, Justice Anthony M. Kennedy, who retired in 2018, called for “an open and searching debate” on same-sex marriage, writing that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Author: Adam Liptak
This post originally appeared on NYT > U.S. News