Co-Blogger Jon Adler flagged an exchange in Royal Canin U.S.A., Inc. v. Wullschleger. Chief Justice Roberts asked Ashley Keller if there were any cases where the Supreme Court “came out the other way than every court of appeals had come out.” Keller was not able to think of an example on the spot. After a few moments, Roberts thought of a case:
CHIEF JUSTICE ROBERTS: Was that -was that the case in Chadha?
MR. KELLER: INS versus Chadha?
CHIEF JUSTICE ROBERTS: Yes. MR. KELLER: I –I don’t know. I apologize.
CHIEF JUSTICE ROBERTS: Somebody will check. I just –
JUSTICE KAGAN: Gosh, I’m not sure which way that cuts.
(Laughter.)
CHIEF JUSTICE ROBERTS: I’m not sure that’s true. I just have it in the back of my mind, but –okay.
Yes, someone would “check” that. His name is Seth Barrett Tillman. Seth reminded me that in Chadha, the Supreme Court affirmed the Ninth Circuit. And do you know who wrote the circuit court opinion in Chadha? Judge Anthony M. Kennedy. AMK ruled that the one-house veto violated the separation of powers. So Chief Justice Roberts is wrong on this front. Even better, Antonin Scalia filed an amicus brief on behalf of the American Bar Association supporting affirmance!
But there is one fairly prominent case in which the Supreme Court came out the opposite way of all lower federal courts: Brown v. Board of Education. The Court reversed three federal courts in Kansas, South Carolina, and Virginia. Of course, the Court affirmed the Delaware Supreme Court, which found that the separate schools were not equal.
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