In one of the more punishing blows to the class action mechanism since the 2011 Wal-Mart gender discrimination loss, the U.S. Supreme Court on Wednesday rejected a class lawsuit alleging that Comcast jacked up prices to Philadelphia-area customers through anticompetitive practices.

The plaintiffs may or may not have been able to prove antitrust violations by the cable company. We may never know, because the five-justice majority led by Antonin Scalia said they cannot be certified as a class, the mechanism that enables plaintiffs to band together with the necessary resources to go up against corporate behemoths. This decision is one of many by the Roberts Court to limit the class mechanism and erode corporate accountability through procedural rulings, but it may be the first in this string in which any justice, let alone two, read their dissent from the bench – an infrequent practice that typically connotes particularly strong disagreement with the majority decision. On this Wednesday morning, Justices Ruth Bader Ginsburg and Stephen Breyer had a particularly large and rapt audience for their scathing oral dissent, with court-watchers there to witness landmark arguments on marriage equality. What the audience got is a lesson on how obscure procedural cases with major implications for consumers are susceptible to manipulation.

The Comcast v. Behrend case involved a class of some 2 million plaintiffs in the Philadelphia region who argued that Comcast monopolized the regional market by exchanging territories with competitors — enabling everyone to charge higher prices. Plaintiffs who file class lawsuits must establish that they can prove their injury and damages on a classwide basis, and the majority in this case said they hadn’t met that burden. But here’s where it gets interesting. The majority’s holding does not answer the question the court had said it would answer when it agreed to review the case. It granted the petition on the much narrower question of what standard is required for admitting expert testimony in class cases, and this is what the parties addressed in their written and oral arguments. According to a passionate and fuming dissent from Justices Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan, the plaintiffs were victims of a bait-and-switch that deprived them of even an opportunity to properly brief the issue:

The Court’s newly revised question, focused on predominance, phrased only after briefing was done, left respondents without an unclouded opportunity to air the issue the Court today decides against them. And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen. […]

Incautiously entering the fray at this interlocutory stage, the Court sets forth a profoundly mistaken view of antitrust law. And in doing so, it relies on its own version of the facts, a version inconsistent with factual findings made by the District Court and affirmed by the Court of Appeals.

And the dissenters go farther than this. Typically it is left to outside commentators to observe the activism that motivates a particular method of deciding a case. Not here, where the majority’s manipulation of the case was so egregious that the dissenters explicitly call them out on the practice:

Today the Court reaches out to decide a case hardly fit for our consideration. On both procedural and substantive grounds, we dissent. This case comes to the Court infected by our misguided reformulation of the question presented.

Whether this case’s ruling rejecting the plaintiffs’ methodology for determining damages will have impact on future class questions is not clear. According to the dissenters, this case sets no new precedent and should have no application outside of this particular case. According to lawyers who defend these cases, the ruling will make it still easier for companies to beat back class challenges. The primary take-away is that Comcast found an ally in the Roberts Court, whose five conservative justices remain virulently hostile to the class mechanism. At a minimum, the ruling deprived at least 2 million consumers of the opportunity to challenge an alleged Comcast practice that no one consumer could take on alone.

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.
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During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”

By contrast, several of the court’s liberal justices expressed alarm over the impact of DOMA’s actual deprivation of federal marriage benefits on gays and lesbians, with Justice Ruth Bader Ginsburg calling the rights left for married couples after DOMA “skim milk” and questioning, “What kind of marriage is this?” Justice Elena Kagan, meanwhile, pointed to evidence from a House of Representatives report that lawmakers passed DOMA with improper motives. Justice Anthony Kennedy, the likely swing vote, repeatedly expressed a different concern with DOMA — that it impinged on state definitions of marriage.

Before beginning arguments over the constitutionality of the federal Defense of Marriage Act Wednesday morning, the U.S. Supreme Court issued an opinion unanimously siding with a prisoner who filed a handwritten appeal with the U.S. Supreme Court without a lawyer.

Inmate Kim Millbrook is known for being litigious, and has lost several of his previous cases. But his perseverence and experience with the legal system has paid off. In an opinion by Justice Clarence Thomas, the court interpreted government immunity narrowly, paving the way for many other prisoners and litigants alleging law enforcement misconduct to hold government officials accountable. It is not often that the U.S. Supreme Court takes a case filed without a lawyer. And as the New York Times’ Adam Liptak noted recently, Millbrook’s case comes on the 50th anniversary of the landmark case establishing the right to counsel, Gideon v. Wainright. Petitioner Clarence Gideon, who was also ensnared in the criminal justice system, filed a handwritten appeal on his own, and went on to set groundbreaking precedent with the help of some of the most prominent lawyers of his time.

Millbrook’s case was one of two cases the high court agreed to hear this term filed without a lawyer — a highly unusual scenario. Even more encouraging, both cases sought to challenge government attempts to insulate officials from claims of wrongdoing. In an era when justice is often viewed as synonymous with access to expensive legal representation, today’s decision is a rare win for equal access to justice (even as another U.S. Supreme Court decision decided Wednesday morning contracts access). And in a country whose prison population eclipses that of every other country in the world, it is particularly crucial that inmates are at the very least able to challenge their treatment.

In the moments before the U.S. Supreme Court began its historic oral arguments in the challenge to California’s same-sex marriage ban, the court issued its decision in a case with very different but important constitutional implications.

In a 5-4 decision in which the justices split along unusual lines, the court led by Justice Antonin Scalia held that police sniffing around for drug activity cannot bring their drug dog to the front door of a private home without probable cause – usually a warrant. The case is the second in two years to affirm traditional property-based limits on government invasions of privacy, although in very different contexts.

In this case, detectives who received a tip that the defendant was growing marijuana in his home walked up to his front door with a drug dog by their side, and used the signals from the dog as the basis to obtain a search warrant and enter the suspect’s home. The crux of the justices’ disagreement comes down to whether Detective Bartlett’s chocolate labrador, Franky, was just another dog entitled to wander up to someone’s home, or whether his special olfactory skills and training made him more analogous to a pair of high-powered binoculars. Justice Elena Kagan explains in her concurrence:

As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners.  They are to the poodle down the street as high-powered binoculars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes, that as well.

Not so, said the dissenters, led by Justice Samuel Alito. Alito reasons that a dog’s sniffing skills have been used for centuries, and that if there were really a distinction to be made concerning drug-sniffing dogs, that case would have come up already. The dissenters – three conservatives with Justice Breyer as an unusual ally – also reject the reasoning by the concurring Justices Kagan, Sotomayor and Ginsburg that analogizes the drug dog case to the landmark Kyllo decision, in which the court rejected the use of thermal imaging technology to monitor a home. That case was about new technology, they said, and this case is about old tactics.

But whether using new or old technology, the nature of the surveillance by police is relatively new. Drug dogs are among the many tools of the 40-year-old drug war, and in the latest expansion of their use, we are seeing them creep into public schools. Last year’s case invalidating warrantless GPS monitoring, decided on similar grounds, was also a case about drugs. And many of the millions of newly aggressive stop-and-frisks by the New York Police Department resulted in arrests for nothing more than possession of small amounts of marijuana. In taking a sober look back at the strategies law enforcers justified at the height of the drug war, the invasiveness of police implementation will be just as important as the tactics themselves in determining both whether they pass Fourth Amendment muster, and whether they are tailored to meet public safety goals.

WASHINGTON, DC — There are probably five justices who object to California’s anti-gay Proposition 8 and who would prefer to see it struck down. Justice Kennedy, the conservative viewed as most likely to provide the fifth vote for equality, openly pondered whether Prop 8 violates the Constitution’s ban on gender discrimination. Kennedy at one point admitted uncertainty about whether there is sufficient evidence examining the effect of marriage equality on society, but he then pivoted to note that the nearly 40,000 children raised by gay parents in California suffer “immediate legal injury” because of Prop 8. His vote is not entirely clear, but Kennedy leaned significantly in the direction of justice.

A weak performance by Charles Cooper, the lawyer defending discrimination, probably went a long way to push Kennedy into the pro-equality camp. When Justice Sotomayor asked Cooper to identify a single example outside of marriage where discrimination against gay couples could be “rational,” Cooper responded “I cannot,” prompting Sotomayor to note that Cooper had more or less conceded that gay people meet the definition of a class entitled to heightened protection under the Constitution. Under longstanding precedent, a group which has experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” enjoys enhanced protection under the Constitution’s Equal Protection Clause.

Similarly, when Cooper argued that same-sex marriages could somehow undermine opposite-sex marriages, Kagan asked him to explain the “cause and effect” behind this point. When Cooper fumbled the question, Kennedy pounced, asking if Cooper was “conceding the point” that same-sex couples are not a threat to other people’s marriages. Cooper was left to meekly assert that it is “impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.”

Yet the question of whether California’s same-sex couples enjoy the blessings of liberty was rapidly eclipsed by a different, unspoken question — whether gay couples in Alabama also enjoy those rights. Three justices, Roberts, Scalia and Alito asked hostile questions to the attorneys supporting equality and appear very unlikely to vote against Prop 8. Similarly, while Thomas was characteristically silent, no one expects him to break from his past, anti-equality opinions in gay rights cases. Of the remaining five, at least three spent much of the argument grasping for ways to limit the scope of a decision striking down Prop 8.

Sotomayor, at one point, asked pro-equality attorney Ted Olson whether the Court’s decision could be limited to just California. Kennedy worried about the “uncharted waters” facing the Court if it struck down marriage discrimination nationwide. Justice Ginsburg, who famously accused Roe v. Wade of moving “too far, too fast,” alluded to the fact that racial marriage discrimination ended in two stages — first the Court struck down bans on interracial cohabitation, then it struck down bans on interracial marriage. The clear implication was that the Court could be similarly incremental here.
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