FW: The Supreme Court Today

[Volokh, Eugene]

> -----Original Message-----
> From: john.elwood at bakerbotts.com [SMTP:john.elwood at bakerbotts.com]
> Sent: Monday, March 26, 2001 12:07 PM
> Subject:      The Supreme Court Today
>
> Greetings, sportsfans.  Three new grants today, but no decided cases.
>
> Adarand Constructors v. Mineta, 00-730.  The Tenth Circuit held on remand
> from the Supreme Court's own decision in this race-based-preferences case
> that a subcontracting compensation clause in a federal highway procurement
> contract, which provides a financial bonus to prime contractors for
> subcontracting with "disadvantaged" business enterprises (including
> minority-owned businesses) is narrowly tailored to further the
> government's
> compelling interest in remedying racial discrimination and thus doesn't
> violate the equal protection component of the Fifth Amendment.  The
> questions presented by this case are basically 1. Whether the court of
> appeals misapplied the strict scrutiny standard in determining if Congress
> had a compelling interest to enact legislation designed to remedy the
> effects of racial discrimination; and 2. Whether the United States
> Department of Transportation's Disadvantaged Business Enterprise program
> is
> narrowly tailored to serve the compelling governmental interest of
> remedying
> the effects of racial discrimination.
>
> What this means in practical terms is that Justice O'Connor's window of
> opportunity for retiring has just slammed shut for another year.
> Confirming
> a replacement this Summer would be next to impossible with an affirmative
> action case pending for the Fall.
>
> McCarver v. North Carolina, 00-8727, on cert. from the Supreme Court of
> North Carolina.  You may recall that on March 1, the Court stayed the
> execution of Ernest P. McCarver, who unlike most people on death row,
> doesn't routinely use his full middle name.  Today the Court granted his
> petition limited to question 1, namely whether, in light of evolving
> standards of decency (as demonstrated, I gather, by changing state legal
> regimes on the subject), it violates the Eighth Amendment to execute a
> mentally retarded person.  The Court held that the Eighth Amendment didn't
> categorically prohibit executing the retarded in 1989's Penry v. Lynaugh,
> but I gather they're up for reconsidering that.  The same question is
> presented by Antonio Richardson in a case out of the Eighth Circuit;
> recall
> that Richardson got a stay on March 6 after the Court first vacated the
> stay
> given to him by the court of appeals.  The Court has called for the record
> in Richardson's case.  Unless review of the record shows Richardson didn't
> preserve that issue for review or somesuch, I imagine that case will be
> held
> pending resolution of McCarver.
>
> Today's grant means that, regardless of the outcome in his latest trip to
> the Court, Johnny Paul Penry probably has another stay in his future
> pending
> the resolution of McCarver's appeal.
>
> Finally, EEOC v. Waffle House, Inc., 99-1823.  This case out of the Fourth
> Circuit (Niemeyer, King [diss], Lee [dj, EDVa]) presents the question
> whether an employee's agreement to arbitrate employment-related disputes
> with an employer bar the EEOC, as plaintiff in an enforcement action
> against
> an employer, from obtaining victim-specific remedies for discrimination
> against the employee (such as back pay, reinstatement, and damages).  The
> petition was filed last May, and the Court apparently held it pending
> resolution of Circuit City.
>
> There is no way that a majority of the Court will ever believe that a
> company that makes so many people happy with their excellent waffles and
> hashbrowns could have engaged in the pernicious conduct of which they're
> accused.  Look for the Court to sua sponte order an award of attorney's
> fees
> to respondents in this case, after ordering the complaint against Waffle
> House "scattered, smothered, and covered."
>
> Amicus briefs for petitioners are due Thursday, May 10; amicus briefs for
> respondents are due Monday, June 11.
>
> Relists: The Court also appears to have relisted in a couple of cases for
> the second time.
>
> Aloe Energy v. Halter, 00-725.  The Court is thinking about this awfully
> hard given that the SG has already acquiesced in a grant of cert.  The
> Coal
> Industry Retiree Health Benefit Act of 1992 (Coal Act), 26 U.S.C. 9701 et
> seq., established the United Mine Workers of America Combined Benefit Fund
> (Fund) to ensure the continued provision of health-care benefits to
> retired
> miners and their dependents who worked under collective bargaining
> agreements that promised lifetime health-care benefits. For the purpose of
> calculating premiums to be paid to the Fund to finance those health-care
> benefits, the Coal Act directs the Commissioner of Social Security to
> assign
> responsibility for beneficiaries of the Fund to the "signatory operator"
> or
> "related person" of the signatory operator that formerly employed them, if
> that signatory operator (or related person) is still "in business." 26
> U.S.C. 9706(a).  The question presented is whether the Coal Act permits
> the
> Commissioner to assign beneficiaries to the successor in interest of a
> signatory operator that is no longer in business.
>
> O'Brien v. United States, 00-896, presents the question whether, in
> applying
> plain error to a claim that legal error only became clear under an
> intervening decision that changed the law after the case was on appeal,
> whether the government or the defense bears the burden of establishing
> prejudice or lack of prejudice.
>
> Finally, the Court called for the views of the SG on two cases.  (It beats
> just analyzing them yourself, eh?)  First, Rush Prudential HMO v. Moran,
> 00-1021 (Yet ANOTHER ERISA preemption case; asks whether the independent
> review provision of the Illinois HMO Act is preempted by ERISA; brought to
> you by the good people at Hogan & Hartson); and second, Edelman v.
> Lynchburg
> College, 00-1072 (another Fourth Circuit case (Beezer [CA9], Wilkins,
> Luttig
> [conc.]), this one presenting the question whether a federal regulation
> allowing the amendment of a discrimination charge to verify a complaint
> and
> allowing that change to relate back is invalid, and if so, whether
> equitable
> tolling is appropriate with regard to a complaining party who relied on
> that
> regulation).
>
> There aren't supposed to be any opinions tomorrow or Wednesday, so the
> earliest you'll probably hear from me is April 2.  Until then, that's
> today's baseball.
>
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>
>
> John P. Elwood
> Baker Botts L.L.P
> The Warner
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>
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