The third week of June is a frustrating time to follow the Supreme Court.
If there’s any institution in contemporary America that understands ceremony, it’s the Court. Such a self-consciously dramatic institution is, in no way, going to underestimate the importance of timing in issuing opinions. The Justices know that there’s a big difference between a story — or a history book — that starts “On the last day of the Term, the Supreme Court decided,” versus “On the third to last day of the Term….”
There is, in short, just about zero chance that this close to the end, yet not quite at the end, the Supreme Court is going to issue an opinion in the Texas affirmative action case, the Voting Rights Act case, the challenge to the Defense of Marriage Act, or the California Proposition 8 case.
And yet, the Court still issues opinions. And we still line up to hear them, or push SCOTUSblog’s liveblog viewer-count to even higher numbers, even if we all know, or should know, that the opinions we get are not opinions that will resonate through the ages.
Today, the Supreme Court did issue three opinions. And one of them is important, if only for disaffected teenagers. The rest you may not care about, unless you’re a felon with a gun or you ever signed an arbitration agreement….
In an opinion by the Chief Justice, the Supreme Court affirmed the proposition that just because someone is giving you money does not give them the right to tell you what to think.
When I was a teenager, I recall debating this exact proposition with my parents about a Slayer tattoo. (I lost. Thankfully.) And now, when I debate it with my children in a few years, they’ll be able to cite the Supreme Court.
In this case, a few non-profits, or, for our international readers, NGOs, challenged a rule that in order to get money from the United States government to combat the spread of HIV/AIDS, the NGO has to have a policy against prostitution and sex trafficking.
A few NGOs who work with prostitutes on HIV/AIDS prevention declined to adopt that policy, because they believe it would hurt their ability to work with prostitutes. It’s hard to get someone to trust you when you’re telling them that their work is inherently immoral.
So,can the government require an organization to have a different policy as a condition of taking money? Or, as the Chief Justice framed it, can the government tell a person what to think, as a condition of taking money?
The answer is no. A rule requiring an organization to adopt a different policy
requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Justice Kagan recused in the case, presumably because of her support for prostitution.
Class action waivers in arbitration clauses are enforceable.
Justice Scalia wrote an opinion saying that, basically, he doesn’t care that it would be insane to litigate an antitrust claim in an individual arbitration.
Sometimes life is hard, and there are already too many cases and too few federal judges. Good luck if you’ve signed one of these agreements and are getting hosed.
It is now slightly harder to put people in a federal prison for an unconscionably massive time who have been caught with a gun that they weren’t allowed to have.
Justice Kagan announced the opinion, and let everyone know that she knew that it was probably not the opinion that folks turned out to hear.
But, with a few more opinion sessions left, what else could we reasonably expect?
Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.