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School of Law Commentary on Recent U.S. Supreme Court Rulings

SAME-SEX MARRIAGE : United States v. Windsor

* In a June 26 article in The Atlantic, Professor Garrett Epps discussed the 5-4 ruling to strike down the federal Defense of Marriage Act, or DOMA. Wrote Epps: “Read enough opinions by Justice Anthony M. Kennedy, and you will realize that he has three jurisprudential loves: the sovereignty of American states; the ‘dignity and worth’ of gay men and lesbians; and the majesty of the Supreme Court of the United States.”

Kennedy, writing for a five-justice majority, “made history by affirming the importance of all three,” Epps wrote.

* As a guest on WYPR's Midday radio show on June 26, Professor Michael Meyerson discussed the ruling to strike down DOMA and answered questions from callers.

* A blog post by Professor C.J. Peters on June 27 called the DOMA decision an "ugly win." Wrote Peters: “ As someone who supports gay rights (including same-sex marriage) in a moral sense, and who believes they properly find some protection in the Constitution in a legal sense, I celebrate yesterday's results. But as someone who cares about legal craft—about not just what courts decide but how they decide it and justify that decision in writing—I'm disheartened by the decisions that produced those results.”

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EMPLOYMENT DISCRIMINATION : Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar

* Writing in The Atlantic, Professor Garrett Epps commented on a "mini-tantrum" by Justice Samuel Alito. After Justice Ruth Bader Ginsburg read aloud her dissent in the two cases, Alito "pursed his lips, rolled his eyes to the ceiling, and shook his head 'no.' He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand."

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VOTING RIGHTS ACT : Shelby County v. Holder

* Writing in The Atlantic, Professor Garrett Epps quoted Justice Ruth Bader Ginsburg: "Hubris is a fit word for today's demolition of the [Voting Rights Act]," she wrote in her dissent from the 5-4 decision announced June 24.

"She nailed it," Epps wrote. "The decision invalidated the requirement of 'preclearance' of voting changes by states and jurisdictions with particularly bad records of racial discrimination."

He continued: “[B]eyond that, it illustrates the absolute contempt that the Supreme Court's conservative majority harbors toward what is, after all, the central branch of our federal government: Congress, elected by the people and charged with exercising ‘all legislative powers’ granted by the Constitution.”

* In an essay titled “Prepare for a Thrashing of the Democratic Process” on BillMoyers.com, Professor Gilda Daniels wrote : With protections removed, we will witness a widening gap between voters of color and white voters in voter registration, a decline in the number of minority elected officials and more restrictive laws that impact the elderly, the poor and other historically disadvantaged groups.”

Professor Daniels also contributed an op-ed to the American Constitution Society's blog titled "What Congress Must Do Now to Protect Voting Rights."

Daniels also took part in a Brookings Institution discussion on July 1 that focused on the Shelby ruling. Click here to view the podcast.

* Professor Michael Higginbotham was a guest June 25 on WYPR Midday with Dan Rodricks, where he discussed recent Supreme Court decisions, including the Shelby County v. Holder ruling, as well as his recent book, Ghosts of Jim Crow: Ending Racism in Post-Racial America.

* Professor Higginbotham joined Piers Morgan on CNN on June 25 to discuss the Supreme Court's ruling to strike down a portion of the Voting Rights Act. Reflecting on the decision, Higginbotham said, "For the majority to basically say that while racism continues, and they recognize that, that it's up to Congress to prove it ... I think it's really sad."

* On July 28, Professor Higginbotham was a guest on WJZ's "On Time" with Kai Jackson, discussing the Court's Shelby County v. Holder decision, which he views as "judicial activism at its worst."

* In a blog post about the Shelby ruling, Professor C.J. Peters said he was troubled by "the self-interested shift of constitutional power from Congress to the Court that the ruling manifests."

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DNA : Association for Molecular Pathology v. Myriad Genetics Inc.

* Professor Greg Dolin—who is also a physician—was quoted in several news outlets following the U.S. Supreme Court’s unanimous ruling on June 13 that DNA is a product of nature and thus cannot be patented and used for profit. However, the justices said that synthetic, or laboratory-created, DNA is an invention that can be patented.

"The worst fears of the biotechnology industry have not been realized, and inventions in the field of molecular genetics remain patent eligible," Dolin told the Los Angeles Times and The Baltimore Sun.

He also told the European Independent Daily Express that he was not "fully happy" with the opinion but that "it could have been much worse."

Dolin filed an amicus brief in support of Myriad Genetics Inc., a Utah biotechnology company whose patents on two genes linked to breast and ovarian cancer were invalidated by the ruling. Several thousand other gene patents are likely to be invalidated as well.

Dolin is the co-director of the Center for Medicine and Law, a partnership between the University of Baltimore School of Law and the Johns Hopkins Medical Institutions.

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VOTER REGISTRATION : Arizona v. Inter Tribal Council of Arizona Inc.

* Professor Garrett Epps, writing in The Atlantic , says U.S. Supreme Court Justice Antonin Scalia delivered a surprise smackdown to Arizona when he voted, with five other justices, to affirm Congress' power to regulate state voter-registration processes—thereby denying the state the ability to effectively establish its own immigration policy.

Wrote Epps of the conservative jurist: "Scalia's opinion demonstrated a virtue that his admirers often cite and his critics sometimes question—consistency of method, even when the result might be uncongenial to him."

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AFFIRMATIVE ACTION : Fisher v. University of Texas at Austin

* On June 24, Professor Garrett Epps wrote about the Fisher v. University of Texas ruling in The Atlantic , noting that it was a "narrow escape for affirmative action." Epps said the Supreme Court's decision was "not only a reprieve but a mild reaffirmation for affirmative action in higher education admissions."

* Professor Michael Higginbotham contributed an op-ed to The Baltimore Sun on June 6 about Fisher v. University of Texas.

"Though concerns about fairness properly limit the scope and frequency of affirmative action, minority underrepresentation in highly selective colleges and universities continues to validate its use," Higginbotham wrote.