Notable and ignoble Supreme Court cases

[waltky]

Uncle Ferd wonderin' if he can patent his 'womens attractin' genes...

Court: Can human genes be patented?
15 Apr.`13 WASHINGTON (AP) — The Supreme Court seemed worried Monday about the idea of companies patenting genes that can be found inside the human body, as it heard arguments in a case that could profoundly reshape U.S. medical research and the fight against diseases like breast and ovarian cancer.

The U.S. Patent and Trademark Office has been awarding patents on human genes for almost 30 years, but opponents of Myriad Genetics Inc.'s patents on two genes linked to increased risk of breast and ovarian cancer say patent protection should not be given to something that can be found inside the human body. "Finding a new use for a product of nature, if you don't change the product of nature, is not patentable. If I find a new way of taking gold and making earrings out of it, that doesn't entitle me to a patent on gold. If I find a new way of using lead, it doesn't entitle me to a patent on lead," lawyer Christopher Hansen said. Allowing companies like Myriad to patent human genes or parts of human genes will slow down or cripple lifesaving medical research like in the battle against breast cancer, he said.

But companies have billions of dollars of investment and years of research on the line, with Myriad arguing that without the ability to recoup their investment through the profits that patents bring, breakthrough scientific discoveries needed to combat all kind of medical maladies wouldn't happen. That concerned several justices. "Why shouldn't we worry that Myriad or companies like it will just say, 'Well, you know, we're not going to do this work anymore?'" Justice Elena Kagan said.

Hansen said that a company could get recognition for its work and that money for research would always be available, a statement that Justice Anthony Kennedy said wasn't sufficient. "I don't think we can decide the case on, 'Don't worry about investment. It'll come,'" Kennedy said. The Supreme Court has already said that abstract ideas, natural phenomena and laws of nature cannot be given a patent, which gives an inventor the right to prevent others from making, using or selling a novel device, process or application.

Myriad has used its patents to develop its BRACAnalysis test looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer. Women with a faulty gene have a three to seven times greater risk of developing breast cancer and a higher risk of ovarian cancer. Men can also carry a BRCA mutation, raising their risk of prostate, pancreatic and other types of cancer. The mutations are most common in people of eastern European Jewish descent.

More Court: Can human genes be patented?

 

[waltky]

Justices let sop-heads slide...

Supreme Court Rules Against Warrantless DUI Blood Tests
Apr. 17, 2013 - In divided ruling handed down today, the U.S. Supreme Court held that Missouri police violated the 4th Amendment by obtaining a warrantless and nonconsensual blood sample from a man suspected of drunk driving.

At issue in Missouri v. McNeely was the question of whether or not the rapid diminishment of alcohol in a suspect’s bloodstream should entitle the police to enjoy a blanket emergency exception to the 4th Amendment when it comes to seeking blood tests in drunk-driving cases. Writing for a majority that also included Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan, Justice Sonia Sotomayor held that the actions of the Missouri police violated the Constitution and, more significantly, rejected the government’s sweeping argument in favor of a blanket 4th Amendment exception.

While “in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence,” Sotomayor wrote, “it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

In addition to Sotomayor’s majority opinion, Chief Justice John Roberts filed an opinion concurring in part and dissenting in part, which was joined by Justices Stephen Breyer and Samuel Alito, and Justice Clarence Thomas filed a lone dissent.

Supreme Court Rules Against Warrantless DUI Blood Tests - Hit & Run : Reason.com

 

[FA_Q2]

Justices let sop-heads slide...

Supreme Court Rules Against Warrantless DUI Blood Tests
Apr. 17, 2013 - In divided ruling handed down today, the U.S. Supreme Court held that Missouri police violated the 4th Amendment by obtaining a warrantless and nonconsensual blood sample from a man suspected of drunk driving.

At issue in Missouri v. McNeely was the question of whether or not the rapid diminishment of alcohol in a suspect’s bloodstream should entitle the police to enjoy a blanket emergency exception to the 4th Amendment when it comes to seeking blood tests in drunk-driving cases. Writing for a majority that also included Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan, Justice Sonia Sotomayor held that the actions of the Missouri police violated the Constitution and, more significantly, rejected the government’s sweeping argument in favor of a blanket 4th Amendment exception.

While “in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence,” Sotomayor wrote, “it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

In addition to Sotomayor’s majority opinion, Chief Justice John Roberts filed an opinion concurring in part and dissenting in part, which was joined by Justices Stephen Breyer and Samuel Alito, and Justice Clarence Thomas filed a lone dissent.

Supreme Court Rules Against Warrantless DUI Blood Tests - Hit & Run : Reason.com

Why the angry face for that one? The police do not get a blanket pass on the violation of rights just because they suspect you of a crime. I, for one, am more than happy to see any return to the understanding that rights exist and should be respected rather than the current trend of trashing them for governmental convenience.

 

[waltky]

Doesn't the agency dispensing the funding have the right to set the conditions?...

Supreme Court weighs 'loyalty oaths' for groups fighting AIDS
April 22, 2013, WASHINGTON — The groups object to having to explicitly oppose prostitution and sexual trafficking in order to receive U.S. aid.

The Supreme Court was asked Monday whether Congress violated the 1st Amendment when it required global groups fighting AIDS to explicitly oppose prostitution and sexual trafficking as a condition of receiving federal grants. Several of the groups, including the Alliance for Open Society International, objected to the requirement, not because they favored prostitution. They said it would interfere with their work. They seek to encourage women, including prostitutes, to come to their clinics for testing and treatment. The Supreme Court took up the issue on appeal from the U.S. appeals court in New York, which said the "compelled speech" rule violated free-speech protections.

An Obama administration lawyer urged the court to uphold the requirement. "Prostitution and sex trafficking contribute to the spread of AIDS. So it makes good sense that Congress would have imposed this condition," said Deputy Solicitor Gen. Sri Srinivasan. But the justices sounded troubled by tying the money to the message. "There has to be some limitation on what type of loyalty oath you can require them to sign," said Chief Justice John G. Roberts Jr. Justices Ruth Bader Ginsburg and Samuel A. Alito Jr. said they worried about giving public agencies, including universities, a free hand to require people to voice support for certain policies as a condition of receiving support. "It seems like quite a dangerous proposition," Alito said.

The issue of government-mandated speech has divided the justices before. In one prominent case, the court by a 5-4 vote said doctors and nurses at federally funded family planning clinics could be required not to mention abortion as a condition of receiving funds. But in another 5-4 decision, the court struck down a law that barred government-funded legal aid attorneys from challenging aid restrictions as unconstitutional. David Bowker, a lawyer representing the international aid groups, ran into trouble when he argued that the government could not select groups for funding based on their policies. Justices Anthony M. Kennedy and Antonin Scalia quickly objected. "They can't fund the Boy Scouts of America because they like the programs that the BSA has? They have to treat them equally with the Muslim Brotherhood?" asked Scalia, sounding aghast.

When Bowker replied that the government could not withhold money to "penalize a viewpoint," Roberts posed an even harder question. Suppose the government had been funding groups to dig wells in South Africa decades ago, and one group supported apartheid and another opposed it. The government "can't say we're going to prefer the anti-apartheid group?" Roberts asked. Bowker said this case did not involve selecting groups to do the work of fighting AIDS. The groups were already selected, he said, and then were told, "We want you to toe the line."

In closing, Bowker said it would be "wildly inconsistent" with the 1st Amendment to force people to state a message in exchange for funding. "Under the government's theory, you can give anyone a dollar in Medicare funds and say, 'Now that you have taken a dollar of our money, we want you to profess agreement with the Affordable Care Act,'" he said. "Where does that end?" Justice Elena Kagan sat out the case of Agency for International Development vs. Alliance for Open Society. A ruling is expected by late June.

Supreme Court weighs 'loyalty oaths' for groups fighting AIDS - latimes.com

 

[waltky]

Aw shucks, an' Granny wanted to find out if Obama is a Kenyan Mooslamic...

Court: State can block out of state use of FOIA
29 Apr.`13 WASHINGTON (AP) — The Supreme Court ruled Monday that it's legal for a state to limit use of its Freedom of Information Act to its own residents.

The court unanimously upheld a federal appeals court decision validating Virginia's limitation of its FOIA law to state citizens and some media outlets. In the case before the court, Rhode Island resident Mark J. McBurney and California resident Roger W. Hurlbert were suing Virginia for blocking them from getting public documents in Virginia that in-state citizens could have easily obtained. Virginia's FOIA law limits access to state citizens and some media outlets.

McBurney and Hurlbert, along with data and media companies, challenged the state FOIA law under the Constitution's Privileges and Immunities Clause — which prohibits states from discriminating against out-of-staters in favor of its own citizens — and the Commerce Clause, which prohibits discrimination against interstate commerce. Hurlbert owns Sage Information Services, which obtains public real estate assessments for private clients. McBurney, a former Virginia resident, wanted to get documents from a Virginia child welfare agency involving a child support petition from his divorce from his wife.

The two men say it is unconstitutional to not allow everyone access to the protections of a state's FOIA law, especially considering the growing commerce potential of public records. Especially affected are data miners, who are disadvantaged by their inability to get information directly from Virginia on their own. "We hold, however, that petitioners' constitutional rights were not violated," Justice Samuel Alito said for the court. "By means other than the state FOIA, Virginia made available to petitioners most of the information they sought, and the Commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause."

The 4th U.S. Circuit Court of Appeals in Richmond had thrown the two men's case out before its appeal to the Supreme Court, but the 3rd Circuit Court of Appeals in Philadelphia struck down a similar citizens-only FOIA act in Delaware. Other states like Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey have some form of law limiting access to public records for noncitizens. The case is McBurney v. Young, 12-17.

Court: State can block out of state use of FOIA

 

[whitehall]

Well yeah, the thing left wingers and "moderates" failed to understand is that freedom of speech goes both ways. I have just as much of a right to call a radical left wing slob a bum and an a-hole as he does to burn my Flag in the street. I have just as much right to laugh at dykes on bikes and dorky looking transgender clowns as they do to ridicule corporate America.

 

[FA_Q2]

Well yeah, the thing left wingers and "moderates" failed to understand is that freedom of speech goes both ways. I have just as much of a right to call a radical left wing slob a bum and an a-hole as he does to burn my Flag in the street. I have just as much right to laugh at dykes on bikes and dorky looking transgender clowns as they do to ridicule corporate America.

? without referencing what case you are referring to, your comments don’t really make any sense. I must be missing something here….

 

[waltky]

Lets lower court ruling stand...

Supreme Court rejects ban on funding Planned Parenthood
May 28, 2013, WASHINGTON — Indiana had tried to block Medicaid funding of clinics that perform abortions, but the Supreme Court lets lower courts prevent the measure from going into effect.

The Supreme Court refused Tuesday to allow Indiana to block Medicaid funding of Planned Parenthood clinics because they perform abortions. Without comment, the high court let stand decisions by a federal judge in Indiana and the U.S. 7th Circuit Court of Appeals in Chicago that prevented the measure from taking effect. The 2011 law would have banned Medicaid funds from going to an organization such as Planned Parenthood whose work includes performing abortions. Judge Diane S. Sykes, writing for the 7th Circuit last year, said the state's "defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients' statutory right to obtain medical care from the qualified provider of their choice."

The Obama administration had joined the case on the side of Planned Parenthood and argued that the Medicaid law gives eligible low-income patients a right to obtain healthcare from any qualified provider. This is known as the free-choice-of-provider rule. More than 9,300 Medicaid patients in Indiana go to Planned Parenthood clinics for routine medical exams, cancer screening and birth control, the lower court said. Medicaid does not pay for abortions because by law, Congress has forbid the spending of federal funds to pay for elective abortions. Indiana has a similar provision in state law.

A 2011 Indiana law would have banned Medicaid funds from going to organizations that perform abortions, but the Supreme Court has let lower courts prevent the law from going into effect.

Two years ago, Indiana lawmakers voted to go further and forbid the spending of any Medicaid money — federal or state — through "any entity" whose facilities perform abortions. Hospitals and state-licensed surgical clinics were exempted. Though the federal government pays most of the cost for providing healthcare under Medicaid, the money is funneled through a state agency. Had the state law stood, it would have stopped the federal money from flowing to clinics, and many of them would have been forced to close, Planned Parenthood officials said.

Before the Indiana law could go into effect, the group's lawyers went to federal court and sued on behalf of a doctor, a nurse and two patients. That led to the court orders that blocked the law. Notre Dame Law School professor O. Carter Snead called the outcome "deplorable" and said it offered "a grim reminder of the Obama administration's unswerving commitment to Planned Parenthood, the nation's largest abortion provider." He said the only legal remedy was to have Congress revise the Medicaid Act.

Cecile Richards, president of the Planned Parenthood Federation of America, welcomed the court's decision. "Today's announcement from the Supreme Court is not only a victory for Planned Parenthood's patients in Indiana, it is a victory for the nearly 3 million people who turn to Planned Parenthood health centers each year across the country," she said.

Source

See also:

Senate GOP asks High Court to invalidate recess appointments
5/28/13 All 45 GOP senators signed a brief calling Obama's appointments an unconstitutional abuse of power.

The Senate GOP conference has asked the Supreme Court to invalidate President Obama's January 2012 recess appointments as an unconstitutional abuse of power. All 45 Republican senators on Tuesday signed on to a brief arguing that Obama overstepped his authority in naming members to the National Labor Relations Board (NLRB) while the Senate was technically still in session. “The president’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,” Senate GOP Leader Mitch McConnell (Ky.) said in a statement. “We will demonstrate to the Court how the president’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”

In January, the U.S. Court of Appeals for the D.C. Circuit found that Obama's appointments of three people to the NLRB was unconstitutional. The White House in April asked the Supreme Court to review the case. There are currently two vacancies on the five-member NLRB. Without the presence of those appointed in 2012, the board would have been unable to form a quorum. As such, the appeals court's ruling casts doubt on the legality of all the board's recent actions. The ruling also raises questions about Richard Cordray, the director of the Consumer Financial Protection Bureau, who was appointed by the president at the same time.

For their brief, Senate Republicans have retained Miguel Estrada, a former assistant to the solicitor general whom the senators also retained for the circuit court case. The Republicans are joined by the U.S. Chamber of Commerce, which filed a brief with the court last week arguing that the appointments were invalid. Obama has renominated disputed NLRB members Sharon Block and Richard Griffin along with Chairman Mark Pearce and two new nominees. Last week the Senate Health, Education, Labor and Pensions Committee voted to advance the set of nominees to the full Senate.

Read more: http://thehill.com/blogs/regwatch/l...-invalidate-recess-appointments#ixzz2Uj7OGB52

 

[waltky]

Supreme Court okays takin' DNA from arrested suspects...

Police can collect DNA from arrestees, court says
June 3, 2013 WASHINGTON (AP) — A sharply divided Supreme Court on Monday cleared the way for police to take a DNA swab from anyone they arrest for a serious crime, endorsing a practice now followed by more than half the states as well as the federal government.

The justices differed strikingly on how big a step that was. "Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority. The ruling backed a Maryland law allowing DNA swabbing of people arrested for serious crimes.

But the four dissenting justices said the court was allowing a major change in police powers, with conservative Justice Antonin Scalia predicting the limitation to "serious" crimes would not last. "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," Scalia said in a sharp dissent which he read aloud in the courtroom. "This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane — surely the TSA must know the 'identity' of the flying public. For that matter, so would taking your children's DNA when they start public school."

Maryland Attorney General Doug Gansler agreed that there's nothing stopping his state from expanding DNA collection from those arrested for serious crimes to those arrested for lesser ones like shoplifting. "I don't advocate expanding the crimes for which you take DNA, but the legal analysis would be the same," Gansler said. "The reason why Maryland chooses to only take DNA of violent criminals is that you're more likely to get a hit on a previous case. Shoplifters don't leave DNA behind, rapists do, and so you're much more likely to get the hit in a rape case."

Twenty-eight states and the federal government now take DNA swabs after arrests. But a Maryland court said it was illegal for that state to take Alonzo King's DNA without approval from a judge, ruling that King had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches" under the Fourth Amendment to the Constitution. The high court's decision reverses that ruling and reinstates King's rape conviction, which came after police took his DNA during an unrelated arrest.

MORE

 

[waltky]

Only synthetic DNA can be patented...

Natural DNA Cannot Be Patented, Supreme Court Rules
June 13, 2013 > In a decision that could have broad-reaching effects on the future of science and medicine, the Supreme Court that:

— "A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated."

— But, synthetically created "strands of nucleotides known as composite DNA (cDNA)" are "patent eligible" because they do not occur naturally.

The case, , revolved around Myriad Genetics, a Utah biotechnology company that: "Discovered and isolated two genes — BRCA 1 and BRCA 2 — that are highly associated with hereditary breast and ovarian cancer. Myriad patented its discovery, giving it a 20-year monopoly over use of the genes for research, diagnostics and treatment. A group of researchers, medical groups and patients sued, challenging the patent as invalid."

The court's unanimous decision Thursday, Reuters writes, was "a mixed ruling. ... The nine justices reached a compromise by saying synthetically produced genetic material can be patented but that genes extracted from the human body, known as isolated DNA, do not merit the same legal protections." Writing for the court, Justice Clarence Thomas says that "we merely hold that genes and the information they encode are not patent eligible ... because they have been isolated from the surrounding genetic material." Watch for more on the decision and its ramifications .

Natural DNA Cannot Be Patented, Supreme Court Rules : The Two-Way : NPR

 

[waltky]

Winners in recent Supreme Court ruling...

Supreme Court Gene Ruling Benefits Biotech, Breast Cancer Research
June 13, 2013 > Everyone has BRCA genes in their cells. If you are a woman and one of your BRCA gene copies has a mutation, your risk of developing breast cancer is very high - up to 87 percent in some cases.

A biotechnology company called Myriad Genetics Inc. was the first to discover the healthy, normal code of BRCA. Because a mutation is an error in that code, the normal sequence can be used to test for the breast cancer-causing BRCA mutation. Myriad developed the test, and won patent protection for it and the original BRCA gene. Thursday, in a case against Myriad by the ACLU, the Supreme Court decreed that genes can no longer be patented, invalidating Myriad’s intellectual claim to the BRCA code. Yet both sides came away claiming victory. So what happened, and what does this decision mean for cancer patients, medical researchers and biotechnology?

A patent is issued to give an inventor or developer intellectual and property rights to whatever has been made. The patent on the BRCA gene initially was granted for isolated DNA: the gene removed from the human body so that it may be worked with in the lab. But the federal Patent Act states that an inventor may not claim intellectual property rights for “laws of nature” or “natural phenomena.” The question was whether the isolated BRCA gene constituted a new invention, having been removed from the body. The Supreme Court unanimously decided that isolated DNA, though isolated, is still natural, and not a human invention. According to Dr. Marisa Weiss, founder and president of Breastcancer.org, this could mean new research, cures and testing for women with BRCA mutations, and for cancer patients. Until now, researchers have had to pay for the isolated BRCA genetic code, which they need to have to understand how BRCA functions both on its own and in concert with other genes.

BRCA repairs errors in the DNA of breast tissue cells, and prevents unrestrained growth. So, if BRCA is damaged, breast tissue growth can go haywire, leading to cancer. Five to 10 percent of all breast cancers are caused by BRCA mutation, and it also leads to a greatly increased risk of ovarian cancer. Freeing the isolated BRCA gene from its patent could allow researchers to develop more, cheaper tests for BRCA mutation, which could give more women at increased risk of developing cancer a chance to know their status earlier. Women with BRCA mutations are advised to monitor their health with frequent breast MRIs, according to Dr. Weiss. They also may choose to undergo preventive mastectomies and removal of the ovaries and fallopian tubes to avoid cancer. With the early awareness provided by BRCA mutation testing, women may even choose to have children earlier to prepare for these surgeries.

American actress Angelina Jolie's recent decision to undergo a preventive double mastectomy was a result of having discovered a mutation in one of her BRCA genes. Myriad Genetics Inc. is not deprived by this decision, however, said Jennifer L. Swize, a lawyer who represented the biotech company. In fact, she said, “to Myriad, this decision is a win.” While the court overturned patents on isolated DNA, it made a point to uphold patents on cDNA (complementary DNA), or synthetic copies of the genetic sequence with useless “junk” segments removed. CDNA is what Myriad uses in most of its BRCA research anyway, not unmodified isolated DNA. Patents on research and designs like the BRCA mutation test also were upheld. Myriad’s stock rose following the decision.

Source

 

[waltky]

Granny says dem judges is wrong - ya oughta have to be able to prove ya a citizen to vote if asked...

Court: Ariz. citizenship proof law illegal
June 17, 2013, WASHINGTON (AP) — States can't demand proof of citizenship from people registering to vote in federal elections unless they get federal or court approval to do so, the Supreme Court ruled Monday in a decision complicating efforts in Arizona and other states to bar voting by people who are in the country illegally.

The justices' 7-2 ruling closes the door on states independently changing the requirements for those using the voter-registration form produced under the federal "motor voter" registration law. They would need permission from a federally created panel, the Election Assistance Commission, or a federal court ruling overturning the commission's decision, to make tougher requirements stick. Justice Antonin Scalia, who wrote the court's majority opinion, said federal law "precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself."

Voting rights advocates welcomed the ruling. "Today's decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law," said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund. "The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live."

Under Proposition 200 approved in 2004, Arizona officials required an Arizona driver's license issued after 1996, a U.S. birth certificate, a passport or other similar document before the state would approve the federal registration application. It can no longer do that on its own authority. Less than 5 percent of people registering to vote in Arizona use the federal form, said Matt Roberts, a spokesman for Arizona Secretary of State Ken Bennett. The rest register through the state, meaning they will continue to be asked to provide proof of citizenship when signing up to vote. But because of the court ruling, people can merely choose the less onerous federal form, which asks people to swear if they are citizens or not, but does not demand proof.

Arizona Attorney General Tom Horne, who argued the case before the Supreme Court, expects the state will ask the Election Assistance Commission to approve the citizenship proof on the federal form and to fight any denial in court — the process laid out in Monday's ruling. "The U.S. Supreme Court has given us a clear path to victory for the people of Arizona, who overwhelmingly approved the state constitutional amendment that was the subject of the legal challenge," Horne said. "Since the U.S. Supreme Court has made it clear that this pathway exists, Arizona should use it. The sanctity of the ballot box is a cherished right for all Americans and it must be protected." Federal officials deadlocked on Arizona's request in 2005, and the state did not appeal.

In other actions Monday, the court:

 

[waltky]

Court says Congress needs to update the Voting Rights Act...

Supreme Court: Key provision of Voting Rights Act cannot be enforced
June 25,2013 > The Supreme Court ruled Tuesday that a key provision of the landmark Voting Rights Act cannot be enforced unless Congress comes up with an up-to-date formula for deciding which states and localities still need federal monitoring.

The justices said in 5-4 vote that the law Congress most recently renewed in 2006 relies on 40-year-old data that does not reflect racial progress and changes in U.S. society. The court did not strike down the advance approval requirement of the law that has been used, mainly in the South, to open up polling places to minority voters in the nearly half century since it was first enacted in 1965. But the justices did say lawmakers must update the formula for determining which parts of the country must seek Washington’s approval, in advance, for election changes. Chief Justice John Roberts said for the conservative majority that Congress “may draft another formula based on current conditions.”

That task eluded Congress in 2006 when lawmakers overwhelmingly renewed the advance approval requirement with no changes in which states and local jurisdictions were covered, and Congress did nothing in response to a high court ruling in a similar challenge in 2009 in which the justices raised many of the same concerns. “The coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs,” Roberts said. The decision means that a host of state and local laws that have not received Justice Department approval or have not yet been submitted will be able to take effect. Prominent among those are voter identification laws in Alabama and Mississippi.

Going forward, the outcome alters the calculus of passing election-related legislation in the affected states and local jurisdictions. The threat of an objection from Washington has hung over election-related proposals for nearly a half century. At least until Congress acts, that deterrent now is gone. That prospect has worried civil rights groups which especially worry that changes on the local level might not get the same scrutiny as the actions of state legislatures. Justice Ruth Bader Ginsburg, joined by her three liberal colleagues, dissented from Tuesday’s ruling. Ginsburg said no one doubts that voting discrimination still exists. “But the court today terminates the remedy that proved to be best suited to block that discrimination,” she said in a dissent that she read aloud in the packed courtroom.

Ginsburg said the law continues to be necessary to protect against what she called subtler, “second-generation” barriers to voting. She identified one such effort as the switch to at-large voting from a district-by-district approach in a city with a sizable black minority. The at-large system allows the majority to “control the election of each city council member, effectively eliminating the potency of the minority’s votes,” she said. Justice Clarence Thomas was part of the majority, but wrote separately to say again that he would have struck down the advance approval requirement itself. Civil rights lawyers condemned the ruling.

MORE

See also:

Supreme Court got it wrong on gay marriage
Wed June 26, 2013 > Ryan Anderson: Supreme Court's decisions on marriage law are disturbing; He says the court got it wrong on the federal DOMA and California's Prop 8; Anderson: Marriage is about the union of one man and one woman

The Supreme Court on Wednesday announced disturbing decisions on two important cases regarding marriage law, but the high court refused to create a constitutional right to same-sex marriage. In striking down Section 3 of the federal Defense of Marriage Act, the court declared that the federal government can't define marriage as the union of one man and one woman for its own policies and laws but must accept whatever the states decide about marriage. The court's ruling, though, doesn't affect Section 2, which provides that no state is required to give effect to another state's recognition of same-sex marriages.

The court got it wrong with DOMA. The justices ignored the votes of large, bipartisan majorities in Congress in 1996. It is absurd for the court to suggest that Congress doesn't have the power to define the meaning of words in statutes that Congress itself enacts. This is a serious loss for federalism and democratic self-government. We must work to reverse it -- and to defend the rights of all Americans to make marriage policy. In its ruling on California's Proposition 8 (which defined marriage in that state as the union of one man and one woman), the Supreme Court declared that the citizen group that sponsored the initiative didn't have standing to defend the state constitutional amendment that millions of Californians voted to pass.

The only reason this jurisdiction question was an issue is because the governor and attorney general of California decided to not defend a law passed by the people. Although the government of California through inaction tried to silence the voices of Californians, the court didn't create a right to redefine marriage. Marriage laws in the states that tell the truth about marriage -- that it is a union of one man and one woman to provide children with a mom and a dad -- were not struck down. We must now work to protect marriage laws in 37 other states.

http://us.cnn.com/2013/06/26/opinion/anderson-gay-marriage/index.html?hpt=hp_c2

 

[waltky]

Justice Ginsberg keeps court out of airline merger case...

Supreme Court justice denies stay in airline merger
WASHINGTON (Reuters) - A U.S. Supreme Court justice on Saturday night denied a last-ditch effort by a group of consumers and travel agents to stop the merger of American Airlines and US Airways.

The application was denied by Justice Ruth Bader Ginsburg, the court's public information office said.

The combination of American's parent, AMR Corp, and US Airways Group would create the world's largest carrier and follow last month's resolution of antitrust objections by the U.S. Department of Justice. In their appeal to the Supreme Court, plaintiffs led by California resident Carolyn Fjord warned that "irreparable injury" could be caused to the domestic airline industry if the deal goes ahead as planned. They fear the merger will drive air travel prices up and service down and make planes more crowded.

The merger is expected to be consummated before the opening of U.S. securities markets on Monday. A federal judge on Friday rejected the previous attempt by the group to stop the merger.

If one high court justice denies a stay request, the same application can be made to another justice but such moves are rarely successful. Usually, if a request is made to a second justice it will be referred to the full court. The case is Fjord v. AMR Corp et al, U.S. Supreme Court, No. 11-15463-SHL. The main bankruptcy case is in U.S. Bankruptcy Court, Southern District of New York, re: AMR Corp et al, 11-15463.

Supreme Court justice denies stay in airline merger

 

[waltky]

Mebbe would help the move to open software...

Supreme Court could limit software patents
Mar 31,`14: WASHINGTON (AP) -- Is it too easy for high-tech companies to patent inventions that are not really new, but simply take an old idea and blend it with computer wizardry?

The Supreme Court wrestled with that question Monday as justices considered making it tougher for the government to issue patents for computer software. The outcome could send tremors through an industry that touches virtually every sector of the economy, from gadgets on smart phones to advances in anti-lock brakes. The issue has divided the nation's technology giants, with companies like Microsoft Corp. and IBM warning that new restrictions could nullify thousands of existing patents that are the product of billions in research and development. On the other side, firms including Google, Facebook and Netflix say the free flow of software patents has become a "plague" on the industry, blocking companies from promoting innovation.

The justices weighed arguments in a case involving Alice Corp., an Australian financial company that in the 1990s patented a computer program to reduce the risk in financial transactions. The software allows a neutral third party to make sure all parties to a trade have lived up to their obligations. New York-based CLS Bank International challenged the patent as invalid, arguing Alice merely took a concept that has been around since ancient human history and programmed it to run through a computer. Justice Anthony Kennedy suggested a bunch of second year college engineering students could come up with the same software over a weekend. "My guess is that would be fairly easy to program," Kennedy told Carter Phillips, the attorney representing Alice.

Justice Stephen Breyer suggested the idea was no different than when King Tut of ancient Egypt used an abacus to keep track of how much gold to give away. If businesses can simply take an abstract idea and patent it because it runs on a computer, instead of true competition, "you will have competition on who has the best patent lawyer," Breyer said. Phillips responded that Alice's system was much more complicated, allowing multiple parties around the world to settle transactions in real time. He said the position CLS was taking meant that essentially no computer software would be eligible for patent protection. That would undercut hundreds of patents, including those that have been issued for word processing or browsing the Internet, he said.

Patents give inventors legal protection to prevent others from making, using or selling a novel device, process or application. The Supreme Court has previously ruled that abstract ideas, natural phenomena and laws of nature cannot be patented. But the court has not laid out detailed criteria for determining when computer software patents are valid. Last year, the court ruled that human genes could not be patented, ending three decades of patent awards by government officials. In 2012, the court threw out patents that protected medical diagnostic tests. The U.S. Court of Appeals for the Federal Circuit ruled that Alice Corp.'s patents couldn't be granted, but its decision was fractured, with no majority opinion. Only five of the 10-member panel of judges agreed that Alice merely took a well-settled economic concept and put it into a computer program.

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[waltky]

Back to the good ol' days o' buyin' politicians an' elections...

Supreme Court strikes down overall limits on political contributions
2 Apr.`14 WASHINGTON – The Supreme Court, in a 5-4 decision, ruled Wednesday that limits on the total amount of money individuals can give to candidates, political parties and political action committees are unconstitutional.

The major ruling, which was hailed by Republican congressional leaders as a First Amendment victory, removes the cap on contributions, which was set at $123,200 for 2014. It does not change limits, though, on individual contributions for president or Congress, currently set at $2,600 per election. Chief Justice John Roberts announced the decision, which split the court's liberal and conservative justices. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” Roberts wrote in the majority opinion. “If the First Amendment protects flag burning, funeral protests and Nazi parades – despite the profound offense such spectacles cause – it surely protects political campaign speech despite popular opinion.” The overall limits "intrude without justification on a citizen's ability to exercise `the most fundamental First Amendment activities,"' Roberts said, quoting from the court's seminal 1976 campaign finance ruling in Buckley v. Valeo.

Justice Clarence Thomas agreed with the outcome of the case, but wrote separately to say that he would have gone further and wiped away all contribution limits. Others, though, described the ruling as a major blow to vital campaign finance rules. Justice Stephen Breyer, writing for the dissenting side, took the unusual step of reading a summary of his opinion from the bench and said the “decision eviscerates our nation’s campaign finance laws.”

Anna Galland, executive director of MoveOn.org, said Wednesday's decision "has seriously threatened our democracy by allowing ultra-rich individuals like Shaun McCutcheon and the Koch brothers to effectively buy as many members of Congress as their bank accounts allow." “The Roberts Court has weakened America’s democracy and contributed to a system of legalized bribery by allowing big money to swamp the voices of regular Americans and dramatically alter the outcome of elections," she added in a written statement. Congress enacted the limits in the wake of Watergate-era abuses to discourage big contributors from trying to buy votes with their donations and to restore public confidence in the campaign finance system.

But in a series of rulings in recent years, the Roberts court has struck down provisions of federal law aimed at limiting the influence of big donors as unconstitutional curbs on free speech rights. Most notably, in 2010, the court split 5-4 in the Citizens United case to free corporations and labor unions to spend as much as they wish on campaign advocacy, as long as it is independent of candidates and their campaigns. That decision did not affect contribution limits to individual candidates, political parties and political action committees. Republican activist Shaun McCutcheon of Hoover, Ala., the national Republican Party and Senate GOP leader Mitch McConnell of Kentucky challenged the overall limits on what contributors may give in a two-year federal election cycle. The total is $123,200, including a separate $48,600 cap on contributions to candidates, for 2013 and 2014.

More Supreme Court strikes down overall limits on political contributions | Fox News

 

[waltky]

Who controls Jerusalem?...

US Supreme Court to Review Jerusalem Birthplace Law
April 21, 2014: WASHINGTON — The U.S. Supreme Court on Monday agreed to weigh the constitutionality of a law that was designed to allow American citizens born in Jerusalem - the historic holy city claimed by Israelis and Palestinians - to have Israel listed as their birthplace on passports.

The case concerns a long-standing U.S. foreign policy that the president - and not Congress - has sole authority to state who controls Jerusalem. Seeking to remain neutral on the hotly contested issue, the U.S. State Department allows passports to name Jerusalem as a place of birth, but no country name is included. The State Department, which issues passports and reports to the president, has declined to enforce the law passed by Congress in 2002, saying it violated the separation of executive and legislative powers laid out in the U.S. Constitution.

In court papers, President Barack Obama's administration said taking sides on the issue could “critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.” The government has noted that U.S. citizens born in other places in the region where sovereignty has not been established, including the West Bank and the Gaza Strip, are similarly prevented from stating a country of birth on their passports. In 2003, Ari and Naomi Zivotofsky, the parents of U.S. citizen Menachem Zivotofsky, who was born in Jerusalem in 2002, filed a lawsuit seeking to enforce the law. They would like their son's passport to say he was born in Israel.

Since the founding of Israel in 1948, U.S. presidents have declined to state a position on the status of Jerusalem, leaving it as one of the thorniest issues to be resolved in possible future Israeli-Palestinian peace talks. When Republican President George W. Bush signed the 2002 law as part of a broader foreign affairs bill, he said that if construed as mandatory rather than advisory, it would “impermissibly interfere” with the president's authority to speak for the country on international affairs. The issue reached the U.S. Supreme Court in 2012 on the preliminary question of whether it was so political that it did not belong in the courts. The high court ruled 8-1 that the case could proceed, setting up a July 2013 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that struck the law down.

An estimated 50,000 American citizens were born in Jerusalem and could, if they requested it, list Israel as their birthplace if the law was enforced. While Israel calls Jerusalem its capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv. Palestinians want East Jerusalem, captured by Israel in a 1967 war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip. Oral arguments and a decision are due in the court's next term, which begins in October and ends in June 2015. The case is Zivotofsky v. Kerry, U.S. Supreme Court, 13-628.

US Supreme Court to Review Jerusalem Birthplace Law

 

[waltky]

Beginning the dismantling of reverse discrimination...

Michigan affirmative ban is OK, Supreme Court says
April 22, 2014: WASHINGTON (AP) — A state's voters are free to outlaw the use of race as a factor in college admissions, the Supreme Court ruled Tuesday in a blow to affirmative action that also laid bare tensions among the justices about a continuing need for programs that address racial inequality in America.

The 6-2 decision upheld a voter-approved change to the Michigan Constitution that forbids the state's public colleges to take race into account. That change was indeed up to the voters, the ruling said, over one justice's impassioned dissent that accused the court of simply wanting to wish away inequality. The ruling bolsters similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Justice Anthony Kennedy said voters in Michigan chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court's prior cases gives judges the authority to undermine the election results. "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," Kennedy said. He stressed that the court was not disturbing the holding of a 2003 case from Michigan —which gave rise to the 2006 Constitution change — permitting the consideration of race in admissions. A Texas affirmative action case decided in June also did nothing to undermine that principle, Kennedy said.

In a separate opinion siding with Kennedy, Justice Antonin Scalia said Michigan residents favored a colorblind constitution and "it would be shameful for us to stand in their way." Strongly dissenting from the majority, Justice Sonia Sotomayor said the decision trampled on the rights of minorities, even though the Michigan amendment was adopted democratically. "But without checks, democratically approved legislation can oppress minority groups," said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor. Michigan voters "changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities," Sotomayor said.

Judges "ought not sit back and wish away, rather than confront, the racial inequality that exists in our society," she said. She is one of two justices, along with Clarence Thomas, who have acknowledged that affirmative action was a factor in their college and law school admissions. Sotomayor attended Princeton University and Thomas is a graduate of the College of the Holy Cross. They both attended law school at Yale University. Thomas is a staunch opponent of racial preferences. At 58 pages, Sotomayor's dissent was longer than the combined length of the four opinions in support of the outcome. Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Scalia and Thomas agreed with Kennedy. Responding to Sotomayor, Roberts said it "does more harm than good to question the openness and candor of those on either side of the debate."

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See also:

INTERNET TV CASE: JUSTICES SKEPTICAL, CONCERNED
Apr. 22, 2014 WASHINGTON (AP) — Grappling with fast-changing technology, Supreme Court justices debated Tuesday whether they can protect the copyrights of TV broadcasters to the shows they send out without strangling innovations in the use of the internet.

The high court heard arguments in a dispute between television broadcasters and Aereo Inc., which takes free television signals from the airwaves and charges subscribers to watch the programs on laptop computers, smartphones and even their large-screen televisions. The case has the potential to bring big changes to the television industry. There was a good measure of skepticism about Aereo's approach, sometimes leavened with humor. Chief Justice John Roberts declared at one point: "I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, you know, lawyers do that."

But several justices expressed concern that a ruling for the broadcasters could hamper the burgeoning world of cloud computing, which gives users access to a vast online computer network that stores and processes information. Justice Stephen Breyer said the prospect makes him nervous. "Are we somehow catching other things that would really change life and shouldn't?" Breyer asked. Paul Clement, representing the broadcasters, tried to assure the court it could draw an appropriate line between Aereo's service and cloud computing generally. People who merely retrieve what they have stored should have no reason to worry, Clement said.

But David Frederick, representing Aereo, said the "cloud computing industry is freaked out about the case" because it sees its $10 billion investment at risk if the court were to hold that anytime music or an image is stored online and then retrieved, the copyright law would be implicated. The discussion veered between references to Roku, a TV streaming device, and other high-tech gadgets on the one hand, and analogies to coat-check rooms and valet parking in an effort to make matters more understandable on the other. There was even Breyer's quaint reference to a "phonograph record store."

Aereo's service starts at $8 a month and is available in New York, Boston, Houston and Atlanta, among 11 metropolitan areas. Subscribers get about two dozen local over-the-air stations, plus the Bloomberg TV financial channel. In each market, Aereo has a data center with thousands of dime-size antennas. When a subscriber wants to watch a show live or record it, the company temporarily assigns the customer an antenna and transmits the program over the Internet to the subscriber's laptop, tablet, smartphone or even a big-screen TV with a Roku or Apple TV streaming device. The antenna is only used by one subscriber at a time, and Aereo says that's much like the situation at home, where a viewer uses a personal antenna to watch over-the-air broadcasts for free.

More Internet TV case: Justices skeptical, concerned

 

[waltky]

Is abortion free speech?...

High Court To Consider ACA Funding of Abortion in First Amendment Case
April 22, 2014 – Susan B. Anthony List (SBA) President Marjorie Dannenfelser once again defended her group’s claim that taxpayers will be forced to pay for abortions through the Affordable Care Act (ACA) following oral arguments in a First Amendment case now before the U.S. Supreme Court.

The SBA List is seeking to have an Ohio law forbidding the dissemination of “false statements” and “malicious lies” against political candidates declared unconstitutional. (See SBA List.pdf) In 2010, The SBA List produced political advertisements opposing then-Congressman Steven Driehaus (D-Ohio) for reelection because he voted for the ACA after initially opposing it. The group called his vote "support for taxpayer-funded abortions." Driehaus responded by filing a criminal complaint with the Ohio Elections Commission, alleging that the ads violated the Ohio False Statement law.

But Dannenfelser says the ads were accurate. “The statement was true when we first made it, it was true when Driehaus said it before he changed his mind, it was true when the Catholic Conference of Bishops said it, it was true during the campaign, and it is true now,” Dannenfelser told CNSNews.com following oral arguments before the high court on Tuesday. “And we’re making that same case across the country in Senate races where we’re involved. We’re saying literally the same words because it is literally still true that healthcare does fund abortion, otherwise why would all these new abortion coverage policies be coming out? "There’s only one person paying for it - and that is the American taxpayer,” she said.

Driehaus withdrew his complaint after losing his re-election bid. But the SBA List’s amended counter-complaint alleges that the Ohio Elections Commission “chilled” the advocacy group’s free speech and free-association rights by not allowing the ads to run. Dannenfelser expressed optimism that the high court would overturn the Ohio law. “We’re very excited about the tenor of the conversation among the justices, the back and forth between the attorneys,” Dannensfelser added. “We think there’s a general sense that there is a problem in terms of the First Amendment on this law… "There’s no question that the voters are better placed to decide the truth or falsity of a speaker’s argument than a small group of people back in Ohio who perhaps think they know better. We think the voters in this particular case are the best situated to decide,” she told CNSNews.com. “According to the Ohio law, no one may, “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” (No. 10)

As a result of Driehaus’ complaint, state officials would not let The SBA List post the ads even though Ohio solicitor Eric Murphy, in defending the law before the Supreme Court Tuesday, acknowledged that whether or not the ACA covers taxpayer-funded abortion was “a complex question.” In March 2010, President Obama issued Executive Order 13535, which the president said would “ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered).” But Dannenfelser said that clandestine provisions in the law “blatantly contradict President Obama’s 2009 promise that ‘under our plan, no federal dollars will be used to fund abortion.’” Pro-life and other civil rights advocacy organizations filed amicus briefs in support of SBA, including the American Civil Liberties Union, the Cato Institute, the Christian Legal Society, and the Republican National Committee. SBA has also posted on their website a list of pro-life groups that agree that the ACA funds abortion and stand behind the veracity of SBA List’s statement. A decision in the case is expected sometime this summer.

High Court To Consider ACA Funding of Abortion in First Amendment Case | CNS News

See also:

Scalia: Political Speech Advances Values, Not Personal Attacks
April 22, 2014 – During oral arguments at the Supreme Court Tuesday, the justices appeared skeptical of an Ohio law that bars people from making false statements about political candidates.

The Susan B. Anthony List, a pro-life group, is challenging the law on First Amendment grounds. The case dates to 2010, when the Susan B. Anthony List planned to run a billboard advertisement accusing then-Rep. Steven Driehaus (D-Ohio) of supporting taxpayer-funded abortion because he voted for the Affordable Care Act. Driehaus filed a complaint with the Ohio Elections Commission, saying the ad would violate Ohio election law.

On Tuesday, conservative Justice Antonin Scalia said the group's opposition to Driehaus wasn’t personal but rather stemmed from his support for the Affordable Care Act: “Their organization is not an anti-Driehaus. Is that his name, Driehaus?” Scalia asked. “Yes, your Honor,” said Eric Murphy, the attorney representing the state of Ohio. "That’s not what [SBA List is] about,” Scalia said. “They are about opposition to the abortion funding portion of the Affordable Care Act, and they’re going to make the same -- the same contentions against anybody else who runs for office who voted for the Act, whether it's Driehaus or anybody else.”

Driehaus did not win re-election in 2010, and he ended up dropping his complaint against the Susan B. Anthony List before the Ohio Election Commission could issue a ruling. But the SBA List nevertheless continued its challenge to the Ohio law, arguing that it “chilled” its free speech and free association rights. On Tuesday, most of the justices – liberal and conservative -- expressed concern that the Ohio law violates the Constitution’s First Amendment guarantee of free speech. “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?” Justice Anthony Kennedy asked Murphy. “Why can’t a person say, you know, there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them,” Justice Stephen Breyer interjected. “And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm.”

Michael Carvin, the attorney for SBA List, said free speech in the political arena is “the core of the First Amendment.” “This is how we choose our representatives in our democracy,” Carvin said. “We were very excited by the tenor of the conversation among the justices back and forth between the attorneys,” Marjorie Dannenfelser, president of SBA List, told CNSNews.com after the hearing. “We think that there is a general sense that there is a problem in terms of the First Amendment on this law.” Although the justices appeared critical of the Ohio law, the law itself is not the issue before the court. The Justices are expected to rule on whether the Susan B. Anthony list may challenge a law it hasn't been convicted of violating.

Scalia: Political Speech Advances Values, Not Personal Attacks | CNS News

 

[waltky]

Will the Supreme Court stick it's thumb in the 2016 political pie...

Supreme Court Politics of Campaign 2016
April 24, 2014 WASHINGTON — There’s no shortage of issues for this year’s congressional midterm elections and the presidential showdown in 2016—the state of the economy, health care and foreign policy all figure into the mix.

But how about another factor few people are talking about at the moment: the future of the Supreme Court. President Barack Obama has made two appointees to the high court—Sonia Sotomayor in 2009 and Elena Kagan in 2010. Both women replaced liberal justices, so the political split on the court remained the same: five conservatives and four liberals if you put Justice Anthony Kennedy in the conservative column—even though he often represents the swing vote in five-to-four court decisions.

Supreme Court appointments are for life, leaving individual justices to decide how long to stay on the job, and since 1980 the average age of a retiring justice has been 79. The question is whether President Obama will have an opportunity to name a third justice to the high court some time before he leaves office in early 2017.

Who might go?

Court observers have long thought that the most likely justice to retire next would be Justice Ruth Bader Ginsburg, who was appointed to the high court by President Bill Clinton in 1993. Now 81 and two-time cancer survivor, Ginsburg has given every indication she would like to stay on the court for a while yet, even if some liberal activists hope she would retire before the end of Obama's term to make way for another liberal appointment — thereby keeping the court's ideological makeup intact. In fact, some liberal activists have suggested both Ginsburg and Breyer should time their retirements to give Obama the chance to appoint younger liberals who would remain on the court for years to come.

While Supreme Court justices tend to say little about their retirement plans, and completely sidestep the issue of possible successors, retired Justice John Paul Stevens had a different view. Appointed by President Gerald Ford in 1975, Stevens was replaced by Justice Elena Kagan after stepping down for health reasons in 2010, telling ABC’s “This Week” that it was “natural and appropriate” for a retiring justice to think about a successor. “If you’re interested in the job and in the kind of work that’s done, you have an interest in who’s going to fill your shoes," he said.

Three of the other justices are now in their 70s. Justice Antonin Scalia, appointed by President Ronald Reagan in 1986, is the longest-serving member of the current court at 78, while Justice Kennedy, a fellow Reagan appointee, is 77, and Justice Stephen Breyer, appointed by President Clinton, is 75. None has given any indication of impending retirement.

Political impact