On Monday, the justices will meet for their September 26 conference. The October sitting will begin on October 3; the argument calendar for that sitting is available on the court’s website.
The petition of the day is:
Issue: (1) Whether, if federal law controls the issue of whether attorney’s fees and expenses can be awarded for obtaining a declaratory judgment, an award of fees and expenses is “necessary or proper relief . . . against [the losing party],” Declaratory Judgment Act Section 2202, or whether a declaratory judgment is only available to corporations and the upper class, who can afford to pay the hourly fees and expenses required for access to the courthouse; and (2) whether, if state law controls the issue of whether attorney’s fees and expenses can be awarded for obtaining a declaratory judgment, the case should be remanded to the district court to consider Kansas state law on the subject because the district judge affirmatively stated that fees and expenses should be awarded if they legally could be.
The late Justice Antonin Scalia and the vacancy he left behind continued to loom large over the justices’ summer appearances, as his colleagues were often called upon to speak about his legacy, their memories of serving with him, and their thoughts on adjusting to an eight-member Supreme Court.
On September 30 at 12 p.m., the Pacific Legal Foundation and National Review Institute will host a preview of the Supreme Court’s next Term. Speakers will include Theodore Olson, Neal Katyal, and Gregory Katsas; Ramesh Ponnuru will serve as moderator. More information about this event, which will be held at the offices of Jones Day in Washington, is available here.
- At Law.com (subscription or registration required), Tony Mauro reports that after sending letters to all eight justices asking for details about their current health, he received a single response, from Chief Justice John Roberts, writing on behalf of the entire court, stating only that Mauro “can expect to see an able and energetic Court when we reconvene in October”; “transparency advocates and some court scholars,” Mauro notes, “argue that the justices, increasingly in the public eye and often viewed as political players, don’t deserve as much invisibility as they seem to want.”
- At Constitution Daily, Lyle Denniston highlights the pending cert. petition in Endrew F. v. Douglas County School District, a case posing the question of what level of educational benefit constitutes “an ‘appropriate’ education for each disabled child” in the public school system. Continue reading »
The petition of the day is:
Issue: Whether a state may condition access to the wholesale or retail tier of its three-tier alcohol distribution system on in-state residency or physical presence, as the 2nd and 8th Circuits have concluded, or whether such requirements are unconstitutional, as the 5th Circuit held below.
The new Supreme Court term presents an unusual opening focus on criminal cases: All five cases the first week of October, and all but one the next, have their nuclei in criminal prosecutions. First up is a complicated double jeopardy question arising out of a messy political corruption prosecution in Puerto Rico.
The petitioners in Bravo-Fernandez v. United States were federally prosecuted on various counts arising out of an alleged political bribery conspiracy. The jury acquitted Juan Bravo-Fernandez and his co-defendant Hector Martinez-Maldonato on some counts and convicted on others, but the convictions were vacated on appeal due to improper jury instructions. Bravo-Fernandez and Martinez-Maldonato now ask whether the jury’s acquittals on some counts block retrial on the remaining counts. They argue that the jury’s acquittal verdicts necessarily decided the central bribery allegation in the defendants’ favor for all counts.
It has been 221 days since Justice Antonin Scalia died suddenly and 190 days since President Barack Obama nominated Chief Judge Merrick Garland to fill the vacancy. The nominee, who will turn 64 just five days after the election in November, has been on the U.S. Court of Appeals for the District of Columbia Circuit for 19 years and has been the chief judge for more than three years; he served in several positions in the Justice Department, clerked for Supreme Court Justice William J. Brennan Jr., and was a partner at the firm of Arnold & Porter in Washington, D.C. for several years.
In that 190-day period, the nomination has not advanced an inch.
While there is no way to predict what lies ahead, it is worth revisiting some of the possibilities for bringing the Supreme Court up to full strength.
On September 27 at 12 p.m., the Federalist Society will host a preview of the Supreme Court’s next Term. Speakers will include this blog’s Tom Goldstein, Nicholas Quinn Rosenkranz, Carrie Severino, and George Terwilliger; Robert Barnes will serve as moderator. More information about this event, which will be held at the National Press Club, is available on the Fed-Soc website.
At his eponymous blog, Lyle Denniston reports that the Court, “acting with no sign of dissent, moved in on Wednesday to interrupt at least temporarily a series of lower court rulings that would bar employee benefit companies from claiming that they operate ‘church plans’ and thus are exempt from federal regulatory laws — including the one providing birth control access.” Additional coverage comes from Ross Runkel, also at his eponymous blog.
In The Huffington Post, Cristian Farias reports that a “federal judge on Tuesday ordered the state of Texas to take steps to make it perfectly clear to voters that they’re not required to possess a voter ID before they cast a ballot in the upcoming election”; he also reports that a spokesman for the Texas attorney general announced that the state would ask the Court “’this week’” to review a July appeals court ruling finding that the state’s voter ID law violated the Voting Rights Act. Commentary on these developments comes from Mark Joseph Stern at Slate.