Petition of the day

By on Jul 28, 2014 at 10:11 pm

The petition of the day is:

Ashley Furniture Industries, Inc. v. United States
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioners in this case.

Issue: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the government must prove that non-discriminatory measures would fail to satisfy the government’s interests.


Arguing before the Supreme Court, watching United States v. Windsor play out, the emergence of procedural barriers to courts, how the Court has changed since Chief Justice Warren E. Burger, and how to talk about the Court.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

Posted in Everything Else

UPDATE 6:10 p.m.  The attorney general of North Carolina said at a news conference following the ruling discussed below that his office would no longer defend his state’s ban on same-sex marriage, conceding that the Fourth Circuit decision had taken away all of the arguments that could be made for the ban.  However, in another state in the Fourth Circuit, South Carolina, the attorney general said his office would continue the defense of that state’s ban.


Continuing the year-long, so far uninterrupted trend of court rulings against states’ bans of same-sex marriage, the U.S. Court of Appeals for the Fourth Circuit on Monday nullified the Virginia prohibition; the panel divided two to one.  This was the second federal appeals court to add its ruling to a lengthy string of district court and state court decisions reaching the same result.

Meanwhile, in Florida, a gay couple sought to move a test case directly to the state supreme court, bypassing a middle-level appeals court.  Their lawyers argued that “there is a need to bring finality to this issue on a statewide basis.” Continue reading »

The annual meeting of the American Bar Association, which will take place from August 8 through August 10 in Boston, will include several events of interest to Court watchers.  On August 8 this blog’s Rory Little will moderate a panel to review the Court’s criminal docket in the October Term 2013; more information about that panel is available here.  On August 10, Sports Illustrated analyst and law professor Michael McCann will moderate a panel to discuss federal regulation of sports betting in the wake of the Supreme Court’s order denying review in a group of challenges filed by (among others) New Jersey governor Chris Christie; more information is available here.  Other Court-related events include a review of the October Term 2013 featuring Linda Greenhouse and a panel on the impact of the Court’s 2013 decision in Shelby County v. Holder, holding unconstitutional the coverage formula of the Voting Rights Act, as well as a panel — featuring, among others, Laurence Tribe — on August 9 to discuss the implications of the Court’s recent Second Amendment decisions for gun control and gun safety.


UPDATE:  July 28, 7:32 p.m.  The Washington, D.C., government and its police chief on Monday asked the federal judge in this case to postpone the decision that would allow the public carrying of handguns in the city.   The motion asked that the judge at least allow a delay while the city appeals, but also suggested a 180-day delay to allow the city council time to pass a new licensing law that would put some limits on public carrying of guns in the city.   The motion argued that, because of the nature of the city as the nation’s capital, it should be treated differently on the scope of gun rights.


The nation’s last total ban on carrying a gun in public — a local handgun law in Washington, D.C. — has been struck down by a federal judge in a case that took almost five years to decide.  The ruling in Palmer v. District of Columbia emerged on Saturday — a day when federal courts seldom issue decisions.  The judge extended Second Amendment rights to have a gun so that they apply outside the home.

Written by a judge brought in from outside the city, the case had gained notoriety as the challengers to the D.C. law tried repeatedly to get a ruling, even asking a federal appeals court to step in to command that the case be decided.  The ruling came more than seven months after the appeals court refused to get involved, saying it was confident the district court ”will act . . . as promptly as its docket permits.”  Frustrated, the challengers renewed that plea in May, and that was still pending when the judge ruled.

Continue reading »


Petition of the day

By on Jul 25, 2014 at 10:11 pm

The petition of the day is:

Athena Cosmetics, Inc. v. Allergan, Inc.

Issue: Whether, under Buckman Co. v. Plaintiffs’ Legal Committee, the Federal Food, Drug, and Cosmetic Act impliedly preempts a private state-law claim for unfair competition premised on a party’s purported failure to obtain Food and Drug Administration approval, where the Food and Drug Administration itself has not imposed any such requirement.

There has never been a shortage of books on the Supreme Court, and that tradition continues as evidenced by fifteen new or forthcoming works.  The new books cover a range of topics, from a critique of the current Court to an examination of the Court’s monetary decisions to books on how the traditional and electronic media cover the Court’s work.

If you missed it the first time around, you might be interested to know that H.N. Hirsh’s The Enigma of Felix Frankfurter (1981) has been reprinted in paperback and on Kindles by Quid Pro Books.

Speaking of Supreme Court Justices, Dan Ernst notes at the Legal History blog that Justice Hugo Black’s papers are available in the Manuscript Division of the Library of Congress. A listing of the documents is available online.  (We posted more information about access to the Justices’ papers last summer.)  And on a related front, the papers of Mark W. Cannon, the former administrative assistant to the late Chief Justice Warren Burger, are available at the Harold B. Lee Library at Brigham Young University.

With that all said, here are fifteen new or forthcoming works on the Supreme Court: Continue reading »

Posted in Book Reviews

This fall the Court will hear a case on the future of retiree health care. M&G Polymers USA v. Tackett asks a challenging question:  what language in a union collective bargaining agreement will cause health-care benefits to vest – that is, continue as long as the beneficiary remains a retiree?  Many employers and tens of thousands of retirees have an interest in the Court’s decision.  If benefits are vested, employers are obligated to provide them, regardless of future employer-union negotiations.  If not, they can later be modified or terminated.

In an experiment designed to explore how members of the Supreme Court bar can assist the Court, Goldstein & Russell has submitted an amicus brief in the case.  This is a “true” amicus brief, with no agenda or desire to advocate for a particular outcome.  Instead, the brief’s only goal is to provide the Court with factual information that may be useful in guiding its decision.

Continue reading »

Petition of the day

By on Jul 24, 2014 at 10:13 pm

The petition of the day is:

Utility Air Regulatory Group v. Environmental Protection Agency

Issue: (1) Whether the lower court’s refusal to require the Environmental Protection Agency (EPA) to justify the revised 2008 national ambient air quality standards as being “not lower or higher than is necessary” can stand in light of that decision’s conflict with Whitman v. American Trucking Ass’ns; and (2) whether the lower court’s agreement with the EPA that the 1997 findings were irrelevant to the 2008 revision can stand in light of the EPA’s obligation under this Court’s decision in Federal Communications Commission v. Fox Television Stations, Inc. to justify changed findings that underlie changed regulation.

Thursday round-up

By on Jul 24, 2014 at 4:07 pm

The Coalition for Court Transparency released a report on transparency at the Supreme Court during the October Term 2013.  It concluded that the Term ended “with only modest improvements to [the Court’s] overall openness.”  Tony Mauro covered the report for Legal Times.

Other coverage of the Court focused on Tuesday’s decisions by the U.S. Courts of Appeals for the D.C. and Fourth Circuits, reaching conflicting conclusions on challenges to the operation of a provision of the Affordable Care Act.  Writing for this blog, Tom Goldstein discussed the likelihood that the Court will take up the issue, and – if so — how the Justices might rule.  Other Court-related coverage of the D.C. and Fourth Circuit decisions comes from Sahil Kapur at Talking Points Memo.  (Note:  As one might expect, Tuesday’s decisions garnered substantial coverage, but we have only included posts whose primary focus is the Supreme Court.)  Continue reading »

Posted in Round-up
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