A state judge in Louisiana, ordering state officials to treat as legal the California wedding of a same-sex couple, has struck down a state ban on such marriages that was upheld in federal court earlier this month.  The federal case is now awaiting an appeal to the U.S. Court of Appeals for the Fifth Circuit, where state officials want it reviewed by the same panel that will rule on a Texas ban that has been nullified.

The situation in Louisiana has now become somewhat muddled, although the conflicting rulings are by different courts — one state, one federal.  In a ruling on Monday that has just been made public, state District Court Judge Edward D. Rubin found unconstitutional a 2004 state constitutional amendment against same-sex marriage, as well as state laws also imposing a ban and refusing to recognize such marriages performed elsewhere.

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UPDATED 4:57 p.m.  This post has been updated by Lyle Denniston with background material on the proposed settlement.

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Today the Court ordered the parties in Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., to file new, ten-page briefs addressing the possibility that the case could become moot. The Court granted review in the case in early March to consider the statute of limitations for securities class actions, and oral argument is currently scheduled for October 6, the first day of the Court’s new Term. But today’s order directs both sides to file simultaneous briefs, due by noon on Thursday, on “the effect, if any, of the proposed settlement agreement now pending before the district court.” Details of the proposed settlement were not available, but it presumably calls for the dismissal of the case, which would moot the Supreme Court proceedings. Because the order refers to a “proposed” settlement, there may be open questions about if and when the case will be resolved, including because of the need for approval of a class action settlement. Continue reading »

Tuesday round-up

By on Sep 23, 2014 at 8:16 am

In six days, the Justices will convene for the first private Conference since late June.  Among the petitions scheduled for consideration at the September 29 Conference are the seven petitions arising out of challenges to state bans on same-sex marriage.  In The New York Times, Adam Liptak looks at efforts by different lawyers involved in the cases to portray their case as the one best suited for the Court’s review; he observes that “[t]he jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.”  Lisa Keen considers similar questions in a post at the Keen News Service, adding that – based on recent comments by Justice Ruth Bader Ginsburg – although the Justices will have seven cases before them, they “may not choose any of those seven for review.”  Continue reading »

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Petition of the day

By on Sep 22, 2014 at 10:14 pm

The petition of the day is:

13-1345

Issue: (1) Whether it is error for a federal appellate court to undertake the same analysis for penalty phase prejudice in capital cases arising from both weighing states, where juries impose death sentences only after determining that aggravating circumstances outweigh mitigating factors, and non-weighing states, where juries are instructed that they may return a sentence less than death for any reason or no reason at all, even after finding a statutory aggravator; and (2) whether the Eleventh Circuit violated the Eighth Amendment by improperly “weighing” aggravation against mitigation evidence in Mr. Bishop’s case rather than applying the non-weighing prejudice test consistent with Georgia’s capital sentencing statute articulated in Zant v. Stephens.

 
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Monday round-up

By on Sep 22, 2014 at 8:07 am

Briefly:

  • At BuzzFeed, Chris Geidner discusses the possibility that, after the Justices first consider the seven petitions arising out of challenges to state bans on same-sex marriage at their September 29 Conference, the Court could ask the federal government to file a brief weighing in; he suggests that doing so “could be just the — thus far missing — step the court needs to give it the time to put the pieces in place that it has decided it needs before it takes on” the issue.
  • In the Los Angeles Times, David Savage reports that, although Justice Ruth Bader Ginsburg “is at the height of her influence and public acclaim, . . . she also faces a decision that may be the most consequential of her career: Should she retire when the term ends in June so President Obama can name her successor?”
  • At Jost on Justice, Kenneth Jost reviews American Justice 2014: Nine Clashing Visions on the Supreme Court, a new book by Garrett Epps that “profil[es] each justice through the lens of the justice’s most distinctive opinion of the term.”

 

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. 

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Petition of the day

By on Sep 19, 2014 at 10:05 pm

The petition of the day is:

14-212

Issue: (1) Whether, when a police officer approaches a residence to conduct a “knock and talk,” the Fourth Amendment requires the officer to go to the “front door” even where it reasonably appears that some other entrance is also customarily used by visitors; and (2) whether the court of appeals erred in holding that such a rule was “clearly established” for purposes of qualified immunity.

It is almost a joy to read the papers in Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., with David Frederick squaring off against Ted Olson. The issue sounds tedious at first – whether the filing of a securities class action tolls the statute of limitations for all members of the asserted class. But it takes only a moment of reflection to realize how much is at stake. Suppose a securities class action alleges a class with hundreds of members (not at all uncommon), and suppose that litigation over certification lasts three to four years (again, not at all uncommon). Now suppose that certification is denied, and the class members now start to file their own individual suits, responding to the failure of the class action. But even if the class action was filed promptly after the incident giving rise to the litigation (not at all a foregone conclusion), it is likely that in many (most?) cases the statutes of limitations would have expired for the individual potential plaintiffs long before the conclusion of litigation over certification. What that means is that the potential plaintiffs who want to protect themselves must file separately, before the limitations period expires, to protect their right to sue after certification is resolved. Can that be right? That is what this case is about. Continue reading »

Friday round-up

By on Sep 19, 2014 at 9:06 am

Briefly:

  • At Re’s Judicata, Richard Re discusses Tuesday’s comments by Justice Ruth Bader Ginsburg suggesting that the Court might decline to grant any of the pending petitions challenging state bans on same-sex marriage because there is currently no division among the circuits. (Lyle also covered those comments in a post yesterday for this blog.)
  • At The Economist’s Democracy in America blog, Steven Mazie reports on the unusual alliance of amici in Young v. UPS, in which the Court will consider the scope of the Pregnancy Discrimination Act, but observes that “the ideological overlap, while intriguing, is no guarantee that justices will reach consensus.”
  • At ACSblog, Adam Winkler cites the extent to which the Court has adhered to Alexander Bickel’s “passive virtues” in the context of its jurisprudence on equal rights for gays and lesbians to support his argument that we shouldn’t “be surprised if the Court stays out of the fray – at least until there is a circuit split. A Court known for its bold assertions of judicial supremacy may be seeing that a passive virtues approach minimizes controversy.”
  • On Saturday at 6 p.m., C-SPAN Radio will air the latest installment of its series on historic Supreme Court arguments, focusing on the oral argument in Zivotofsky v. Clinton, the first round of litigation involving a challenge by a U.S. citizen born in Jerusalem to the State Department’s refusal to list “Israel” as his place of birth on his passport, and what it might mean for the upcoming argument in Zivotofsky v. Kerry.
  • ProPublica has an overview of the state of play in voting rights around the country in the wake of the Court’s 2013 decision in Shelby County v. Holder, striking down the formula used to determine which state and local governments must comply with the Voting Rights Act’s preclearance requirement.
  • The Cato Institute has published its Supreme Court Review, containing articles that look back at the major cases of the October Term 2013 and one that looks forward at the upcoming Term.

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. 

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Petition of the day

By on Sep 18, 2014 at 10:10 pm

The petition of the day is:

13-1342

Issue: Whether a veteran whose disability picture “more nearly approximates,” 38 C.F.R. § 4.7, but “does not satisfy” the criteria required for a higher rating is ineligible for that higher rating.

UPDATED 6:03 p.m.   The Supreme Court may be poised to start acting on the same-sex marriage controversy, although the post below casts some doubt on that.  It now appears that some lower courts will not go ahead with other cases while they await the Justices’ action.  On Thursday afternoon, the U.S. Court of Appeals for the Tenth Circuit put on hold a pending appeal by the state of Colorado, with the delay in that case to continue until the Supreme Court acts on two prior rulings by that court striking down other states’ same-sex marriage ban.  Colorado’s ban has been nullified by a federal trial judge.  In asking that the state’s appeal be “held in abeyance,” the state’s attorney general noted that the two Tenth Circuit marriage cases had now reached the Supreme Court.

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Commentary

If Justice Ruth Bader Ginsburg was speaking for the Supreme Court on Tuesday night in Minnesota about how the Justices will deal with the same-sex marriage issue this Term, the question just may go untouched for a time.  She seemed to be saying that, until there is a fresh split among federal appeals courts on the issue, there would be no need for the Court to move with dispatch to confront the constitutional controversy.

Those comments appeared to run directly counter to the impression the Court gave only a week earlier, when it rushed its planning to take up the question at its first Conference of the Term on September 29.  Without waiting for all of the filings to come in on cases from five states, the Court staff — probably not acting independently — referred all seven pending petitions for that early review.  That is almost unprecedented, under the Court’s rules and normal procedures.

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