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The petition of the day is:
Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).
The fate of the Ninth Circuit’s opinion in Perry v. Brown continues to draw heavy coverage. Ariane de Vogue of ABC News discusses reactions to the decision from gay rights advocates who would prefer that the Court either decline to review the case or, at most, issue only a narrow opinion, while at Slate Will Oremus explains why gay-rights leaders don’t want this case to reach the Court at all. David Cole echoes this theme at the blog of the New York Review of Books, warning that (and explaining why) “a loss in the Supreme Court could set the gay rights movement back for decades.” Striking a different note, Dale Carpenter of the Volokh Conspiracy argues that “a loss in the Supreme Court could be much more narrow,” leaving open “other, more completely theorized, arguments for same-sex marriage”; Ilya Somin disagrees, contending that “[i]f the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well.” Finally, Adam Bink of The Huffington Post offers a general discussion of whether the Court is likely to grant cert., the potential timeline for Supreme Court review, and how the Court might ultimately rule on the merits. [Note: The author of this post will serve as a law clerk to Judge Stephen Reinhardt, author of the Perry majority opinion, in 2013-2014, but he has not been involved in the Proposition 8 litigation.]
Yesterday, the Senate Judiciary Committee voted 11-7 to advance a bill that would permit the Court to televise its proceedings if the Court were to change its mind and allow cameras. The Wall Street Journal Law Blog, C-SPAN, Reuters, Wired, and the Blog of the Legal Times all provide coverage.
The 26 states and others that are making a sweeping challenge to the constitutionality of all parts of the new federal health care law have argued that they should be given at least equal time to argue when the Supreme Court reviews the key provisions of the law at hearings in March. Otherwise, they argued, the arguments on the Affordable Care Act will be unfairly weighted in favor of the federal government and of the ACA itself. In a motion that has now become available, the 26 states, the National Federation of Independent Business, and four individuals differed with some of the hearing suggestions made this month by the government’s top lawyer, Solicitor General Donald B. Verrilli, Jr. (The SG’s views, and the government motion, were discussed in this post. The opposition views were not then available.)
The challengers’ plea suggested that the federal government was pushing an arrangement that would go the furthest to shield the new law’s central provision — the individual insurance-purchase mandate — as well as other parts of the law from being nullified. The states and their allies, by contrast, contended that they should not be shortchanged as they try to get all of the law struck down.
The petition of the day is:
Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case, which is listed without regard for the likelihood of its being granted.
Docket: 11-820
Issue(s): Whether the Court’s decision in Padilla v. Kentucky
, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.
Mr. Wolfman gratefully acknowledges the substantial assistance of Tom McSorley, a third-year student at Georgetown University Law Center.
On February 21, the Court will hear oral argument in Taniguchi v. Kan Pacific. At issue in the case is the interpretation of a federal statute that authorizes an award of costs for the services of interpreters to the prevailing party in a lawsuit – specifically, whether the statute extends to costs for translating documents as well as oral translation.
Background
Kouichi Taniguchi, a Japanese baseball player, was visiting a resort in the Northern Mariana Islands when he fell through a wooden deck. He sued Kan Pacific Saipan, Ltd., the operator of the resort. After Kan Pacific won at summary judgment, the district court ordered Taniguchi to pay Kan Pacific the $5,257 it incurred in the case to translate contracts and other documents from Japanese to English. In awarding these costs, the court relied on 28 U.S.C. § 1920(6), which was added to the federal costs statute by the Court Interpreters Act of 1978 and authorizes district courts to tax as costs “compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].”
Much of yesterday’s coverage of the Court focused on whether the Court would review the Ninth Circuit’s decision in Perry v. Brown, striking down California’s ban on same-sex marriage as unconstitutional, and in particular on what role Justice Kennedy might play if the Court does take up the issue. In his column for Bloomberg View, Noah Feldman characterizes the Ninth Circuit’s opinion as a “memo to Justice Kennedy,” while Karen Gullo and Andrew Harris of Bloomberg similarly observe that Kennedy is likely to be the “fulcrum” of the Court if it decides to review the case. Other coverage of, and commentary on, Justice Kennedy’s possible role in a Supreme Court decision comes from David G. Savage of the Los Angeles Times , Carlos Ball in the Huffington Post, Daniel B. Wood of the Christian Science Monitor, and Geoffrey Fowler and Jess Bravin at the Wall Street Journal, while Orin Kerr pushes back against the Kennedy narrative at the Volokh Conspiracy. In an op-ed for the Los Angeles Times, Erwin Chemerinsky argues that if it does grant cert., the Court is likely to affirm the Ninth Circuit’s decision. Finally, Maura Dolan of the Los Angeles Times and Howard Mintz of the San Jose Mercury News report on possible next steps for supporters of Proposition 8.
The petition of the day is:
Docket: 11-834
Issue(s): (1) Whether, under Ashcroft v. Iqbal,
a county sheriff or other high-level supervisory official may be held liable for an Eighth Amendment violation, stemming from an assault on a prisoner perpetrated by jail inmates and guards, if the plaintiff does not allege facts showing that the sheriff actually knew of, yet failed to respond to, the particular risk of assault the plaintiff faced, and that the sheriff ’s failure to act was the cause of the plaintiff ’s injury; and (2) whether a complaint seeking to hold a high-level supervisory official liable for the acts of subordinate officials, that alleges unrelated incidents of violence over several years in a 20,000-inmate jail system, satisfies Iqbal’s plausibility requirement?
When Patrick Wood, a Colorado state prisoner, was too late in seeking federal habeas-corpus relief, the state told the federal district court that it neither challenged nor conceded the timeliness of Wood’s petition. The district court denied the petition without addressing its timeliness, and Wood appealed. Under these circumstances, did the court of appeals have authority to affirm the district court on the sole ground that the petition was untimely? This is the question before the Court on February 27, 2012, in Wood v. Milyard.
As Lyle Denniston reported for this blog, yesterday in Perry v. Brown the Ninth Circuit struck down California’s ban on same-sex marriage as unconstitutional, kicking off extensive discussion of whether the case will eventually wind up at the Supreme Court. At the Volokh Conspiracy, Orin Kerr hypothesizes as to the panel’s strategy with regard to possible Supreme Court review, while Eugene Volokh’s analysis of the decision begins by predicting that the case “is going up to the Supreme Court.” Writing for the Los Angeles Times, David Savage, Carol J. Williams, and Maura Dolan have a contrary take on the decision, suggesting that the narrowness of the decision may mean that “the high court might choose to steer clear of the dispute” – a sentiment echoed by Mike Sacks at the Huffington Post, Lisa Leff of the Associated Press, and Nina Totenberg in an interview with NPR’s Talk of the Nation. At Concurring Opinions, Gerard Magliocca analyzes the decision; he argues that although “the panel majority really wants to say that any ban on same-sex marriage is unconstitutional,” it “came up with a narrower rationale” based on its “concern that the Supreme Court will not agree.” Other stories addressing the prospect that the Supreme Court will review the case come from Robert Barnes of the Washington Post and Peter Henderson and Dan Levine at Reuters. Continue reading »
(FINAL UPDATE 3:34 p.m.)
In the nation’s most closely watched gay rights case, the Ninth Circuit Court divided 2-1 on Tuesday and struck down “Proposition 8,” the ban on same-sex marriage adopted by California voters in November 2008. The panel majority did not uphold a broad right of gay couples to wed, saying it was enough for now to rule that it was unconstitutional to take away a right to marry only for one minority group, when everyone had the right before. The 128-page ruling can be read here.
The panel unanimously ruled that the sponsors of Proposition 8 had a legal right to be in the appeals court to challenge a federal District judge’s ruling in 2010 striking down the ballot measure, but it also rejected the sponsors’ plea to wipe out that ruling on the theory that the trial judge had a conflict of interest because he is gay and is in a long-term relationship with another man.
The majority summed up its ruling this way: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”
It added: “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is affirmed.”
The opinion contained frequent references to a 1996 Supreme Court ruling, Romer v. Evans, which ruled unconstitutional a state constitutional amendment in Colorado that took away from gays and lesbians political rights that they had shared with other citizens. The Romer decision was written by Justice Anthony M. Kennedy, who very likely would hold a pivotal vote on same-sex marriage if and when that issue reaches the Supreme Court. Kennedy was also the author of a broader gay rights ruling in 2003, Lawrence v. Texas; there, the Court ruled that gays and lesbians have a constitutional right of privacy to engage privately in sexual activity by consent among adults. That Kennedy opinion, though, said the Court was not taking a position then on same-sex marriage.
Awarded for fostering the American public’s understanding of the law and the legal system.
