Justice Alito's Jurisprudence, Part Three

Finishing up this series of posts relating to Justice Alito (who is visiting Hawaii next week), it seemed appropriate to post about some of the opinions he has authored that are off-topic from my blog (or Robert's, Tred's or Rebecca's). On the Constitution and the 14th Amendment, McDonald v. City of Chicago is noteworthy. (Note: I've blogged extensively on this case, see my resource page for further information). This case was ostensibly about the right to bear arms under the 2nd Amendment and the several states ability to infringe upon those rights. The case had the potential to breathe new life into the privileges or immunities clause of the Fourteenth Amendment but the majority avoided that issue through use of the incorporation doctrine. From the Court's syllabus: JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded, in Parts II-C, IV, and V, that the Four-teenth Amendment's Due Process Clause incorporates the SecondAmendment right recognized in Heller. Pp. 10-11, 33-44. (a) Petitioners argue that that the Second Amendment right is one of the "privileges or immunities of citizens of the United States."There is no need to reconsider the Court's interpretation of the Privi-leges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether par-ticular rights are protected against state infringement under theFourteenth Amendment's Due Process Clause. Pp. 10-11. (b) Municipal respondents' remaining arguments are rejected be-cause they are at war with Heller's central holding. In effect, theyask the Court to hold the right to keep and bear arms as subject to adifferent body of rules for incorporation than the other Bill of Rights guarantees. Pp. 33-40. (c) The dissents' objections are addressed and rejected. Pp. 41-44. National Assn. of Home Builders v. Defenders of Wildlife is an environmental case involving the interplay between the Clean Water Act and the Environmental Protection Agency's powers under the Endangered Species Act. Just Alito wrote for the majority: These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean WaterAct requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries ofCommerce and the Interior in order to "insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species." The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. We conclude that it does not. The transfer of permitting authority to state authorities-who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes-was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit. Ricci v. DeStefano was a highly publicized case relating to a city's attempt to ameliorate the past impacts of its racially discriminatory practices in the promotion of fire fighters. The majority of the Court, in an opinion by Justice Kennedy, struck down the city's practices as violating Title VII of the Civil Rights Act. Justice Alito authored a concurring opinion that was joined by Justices Scalia and Thomas. Joining Justice Kennedy's opinion in full, Justice Alito wrote separately to address Justice Ginsburg's dissent and its "incomplete description of the events that led to [the city's action]." Concluding, Justice Alito wrote, Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City's asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." Post, at 1, 39. But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law-of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them. Planned Parenthood v. Farmer is a case relating to New Jersey's abortion statute. The lawsuit reached the Court of Appeals in the wake of the Supreme Court decision in Stenberg v. Carhart, 530 U.S. 914 (2000). The majority opinion notes that the Supreme Court found Nebraska's partial birth abortion law, which largely mirrored the New Jersey version, to be unconstitutional. The majority opinion then struck down New Jersey's law. Then-Judge Alito authored a separate concurring opinion that chided the majority opinion as "never necessary" and "obsolete." In light of the higher court's precedent, Judge Alito would have just struck down New Jersey's law without a detailed analysis of New Jersey's law. His view was that Carhart was clear and precedential and New Jersey's law could not stand in light of the decision.

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