Now that is an odd lineup in Petrella v. Metro-Goldwyn-Mayer, Inc..
For the majority, Justice Scalia assigned the opinion to RBG, who also wrote for Thomas, Alito, Sotomayor, and Kagan. Breyer dissted joined by the Chief and Kennedy. I don’t recall seeing that one. And Nino assigning an opinion to RBG is fairly rare also.
More news from my unzoned city:
The chart above displays 1-unit housing starts for the entire state of California and the Houston metro area annually from 2011-2013 and year-to-date through March for 2014. During the period from January 2011 to March 2014, there have been slightly more single-family housing starts in Houston (95,037) than in California for the entire state (94,993). In this single chart, we can understand the dynamism of the booming, expanding Texas economy and housing market compared to the stagnation of the California economy and the housing market there for new construction.
…
During the month of March, the median sales price of homes sold in California at $376,000 was almost exactly double the median sales price of homes sold in Houston at $189,000. The median sales price in the SF Bay area in March was $579,000, more than three times the median sales price in Houston.
And it doesn’t look like this rate will change any time soon.
Houston had more new-home starts last year than the entire state of California, he says, and it will continue to be the nation’s top spot for building for a long time. “I think it’s going to last for quite some time because Atlanta and Phoenix are the only two that are challenging and they are way behind.” …
Houston had more new-home starts last year than the entire state of California, he says, and it will continue to be the nation’s top spot for building for a long time. “I think it’s going to last for quite some time because Atlanta and Phoenix are the only two that are challenging and they are way behind.”
Nobody’s perfect at one First Street. Shortly after Town of Greece v. Galloway, Yair Rosenberg of Tablet Magazine found a factual error in what he called Justice Kagan’s “very jewish dissent.” She referred to the Jewish community in Rhode Island as “the first community of American Jews.” This isn’t accurate. The first American Jews arrived in 1654, but the Newport Congregation did not begin until 1750. Yair explains:
While I hate to quibble with Justice Kagan’s laudable–if debatable–effort to bring the Jewish story to bear on contemporary jurisprudence, setting aside the merits of her argument, Kagan made a small but important factual error. Newport was not “the home of the first community of American Jews.” That distinction belongs to New Amsterdam, where Jews fleeing persecution settled in 1654, and quickly established a flourishing community despite many obstacles, as recounted by Jonathan Sarna in his Yale University Press book American Judaism. (Newport is home to the country’s oldest standing synagogue, where Kagan spokelast year, which may have been the source of the confusion.)
Hopefully, the Court will rectify this error, not only for the sake of history, but because it makes Kagan’s point all the more poignant. By acknowledging New Amsterdam and its inter-religious struggles, perhaps parenthetically, the closing anecdote would become an appeal to today’s New York to remember the lessons of its colonial roots.
Here was the section from the original opinion:
And, at some point, the Court corrected this error. Here is the revised opinion:
Down the memory hole it goes. And no one beat up on her like they did to Justice Scalia.
If you first started to follow the Second Amendment in 2008, you would think that Justice Scalia invented the entire argument about the Second Amendment out of whole cloth, and only conservative historians bought and paid for by the NRA agreed. But this revisionism (which is all too common in popular discourse) ignores the fact that one of the earliest, yet reluctant, supporters of the individual right to keep and bear arms was Sandy Levinson. His article, The Embarrassing Second Amendment, put the individual model onto the wall, to borrow Jack Balkin’s lingo.
Sandy posted an essay at the ACS Blog titled “Making Peace with the Second Amendment.”
My own view is that District of Columbia v. Heller was probably (though not certainly) rightly decided, though I despise Justice Scalia’s opinion for the majority, which I regard as a thoroughly meretricious reading of the text and of the relevant historical materials. But, obviously, I think that a far better opinion could have been written, emphasizing both the civil republican strain in American political thought plus the vitality of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment to arrive at the same basic result, i.e., the presence in the Constitution of at least some right, guaranteed against the national government, of law-abiding Americans to possess handguns at least within their own homes. The issue of “incorporation” of this right against the states, which occurred in McDonald v. City of Chicago, is trickier, but, to put it mildly, there is something paradoxical about political liberals suddenly becoming hesitant to incorporate an important provision of the Bill of Rights against regulation-prone states.
I deeply admire Sandy’s candor and intellectual honesty. This is likely a result he doesn’t like, or at the least, doesn’t agree with, but he agrees the text of the Constitution gets him there. (I’m not sure how the Privileges or Immunities Clause, which only binds the states, would have made a lick of a difference in Heller, but I digress).
As suggested at the outset, though, I think there is a second way to answer the question, which boils down to a combination of what is best for political progressives. Here I have little trouble agreeing with David Cole, among others, that it is time for us to make our peace with Heller and recognize that most Americans believe that there is a protected constitutional right to possess at least some firearms even as most Americans also support sensible regulation. Too many “Reagan Democrats” emigrated to the Republican Party because of an accurate perception that political progressives disdained their desire to own handguns and other weapons for perfectly peaceful purposes (or for legitimate self-defense within the home). Acceptance of Heller and McDonald does not require joining the N.R.A. and does allow support, say, of enhanced background checks of those who would purchase guns.But political progressives especially might ask why all former felons—think of Martha Stewart—should be deprived of the right to own a handgun in their own homes or why illegal aliens can be required to forfeit what the Supreme Court has declared the “fundamental right” of self-defense with a firearm within the home?
I also appreciate his sound observations that opponents of the right to keep and bear arms should get over Heller, and stop fighting a battle they will lose, both on the Court, and in the American populace. Hint, hint Justice Stevens.
Plus, I couldn’t agree more. Aliens and non-violent felons should not be denied this right.
When I first started to read today’s Per Curiam opinion in Tolan v. Cotton, I thought to myself, what the heck is the legal issue here. The lead paragraph cites Anderson v. Liberty Lobby. Was this case really granted because of a failure to follow the summary judgment standard?
In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986). For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion.
Justice Alito, joined by Justice Scalia, agreed that the case should be reversed, but disagreed that certiorari should be used for error correction.
The Court takes two actions. It grants the petition for a writ of certiorari, and it summarily vacates the judgment of the Court of Appeals.
The granting of a petition for plenary review is not a decision from which Members of this Court have custom- arily registered dissents, and I do not do so here. I note, however, that the granting of review in this case sets a precedent that, if followed in other cases, will very sub- stantially alter the Court’s practice. See, e.g., this Court’s Rule 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law”); S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice §5.12(c)(3), p. 352 (10th ed. 2013) (“[E]rror correction … is outside the mainstream of the Court’s functions and . . . not among the ‘compelling reasons’ … that govern the grant of certiorari”).
In my experience, a substantial percentage of the civil appeals heard each year by the courts of appeals present the question whether the evidence in the summary judg- ment record is just enough or not quite enough to support a grant of summary judgment. The present case falls into that very large category. There is no confusion in the courts of appeals about the standard to be applied in ruling on a summary judgment motion, and the Court of Appeals invoked the correct standard here. See 713 F. 3d 299, 304 (CA5 2013). Thus, the only issue is whether the relevant evidence, viewed in the light most favorable to the nonmoving party, is sufficient to support a judgment for that party. In the courts of appeals, cases presenting this question are utterly routine. There is no question that this case is important for the parties, but the same is true for a great many other cases that fall into the same category.
Traditionally, certiorari has not been used as a form of error correction. The Court tends to focus on big picture issues, and clear errors of law. But not this case.
I’m going to go out on a limb here and say that the Cotton per curiam opinion is by Justice Sotomayor. She, more than any justice, has dissented alone from denial of cert, often based on error-correction grounds. In fact, at one point, this use of certiorari was viewed as her way of guiding the liberal wing of the Court. To name a few, there was the “patently frivolous” case she wrote a dissental on, which Orin Kerr found “puzzling.” Her concurral benchslapping an AUSA for using racial stereotypes, though the issue had been defaulted. And many others. She uses this practice in particular when certain racial justice issues are at play–see footnote 2 of the per curiam, and the amicus filed by the NAACP LDF. In Cotton, it seems she was able to get the entire Court to join along.
If I’m right about the authorship, it also continues a trend of Justice Alito calling out Justice Sotomayor in dissent for extra-legal issues. There was that time Alito criticized Sotomayor about stare decisis in Alleyne. Or the time Alito criticized Sotomayor for misreading the record in the DIG in Boyer v. Louisana. And don’t forget when Alito called out Sotomayor for using the term “noncitizen” instead of “alien.” There are more, I’m sure I’m forgetting.
Sotomayor, who is not in the cert pool, will continue to be in a prime position to highlight and identify many of these error corrections. Let’s see if we get dissents from the next round, citing Cotton. It only takes four to grant. Update: She is in the cert pool. My mistake.