Event announcements

By on Aug 21, 2014 at 10:39 am

Two upcoming events focus on the Court and energy and environmental issues.  Today from 1 to 2:30 p.m., the State and Local Legal Center will host a webinar on last Term’s Utility Air Regulatory Group v. EPA.  Former EPA general counsel Roger Martella will discuss the implications of the case for state and local governments and future regulation of greenhouse gases by the EPA.  More information is available here.

On September 18, from 8:30 to 10:30 a.m. at the National Press Club, the Law & Economics Center at George Mason University School of Law will host an event previewing cases in the Court’s upcoming term that have significant implications for energy and environmental concerns, as well as similar cases that could come before the Court soon. More information is available here.



Thursday round-up

By on Aug 21, 2014 at 8:46 am

Yesterday the Court blocked the order by the U.S. Court of Appeals for the Fourth Circuit striking down Virginia’s ban on same-sex marriage.  Although Virginia officials and the county clerk who had requested the stay urged the Court to treat the clerk’s stay application as a petition for review, the Justices instead stayed the lower court’s ruling pending the filing and disposition of a formal petition for certiorari.  I covered the order for this blog; other coverage comes from NPR’s Nina Totenberg, Robert Barnes of The Washington Post, Timothy Phelps of the Los Angeles Times, and Lawrence Hurley of Reuters.  In an article published before the Court issued the stay, Chris Geidner of BuzzFeed reported on the “tightrope walk” of Virginia Attorney General Mark Herring, who has declined to defend his state’s ban but nonetheless agreed with the county clerk that the Fourth Circuit’s ruling should be stayed.  And in an op-ed for the Supreme Court Brief (subscription required), Alan Morrison has some “early advice” for the Justices on the same-sex marriage issue; among other things, he tells the Court that, “[n]ow that there are so many cases in the courts of appeals, and so little that lower-court judges have not yet said, you might as well take one case now, swallow hard, and decide the merits.” Continue reading »

Posted in Round-up

Petition of the day

By on Aug 20, 2014 at 10:12 pm

The petition of the day is:

Estate of Barabin v. AstenJohnson, Inc.

Issue: Whether, in a federal jury case, a district judge’s procedural failure to make detailed findings under Daubert v. Merrell Dow Pharmaceuticals regarding important expert testimony requires the appellate court to order a new trial, regardless of whether there was actually any substantive error in the expert testimony heard or not heard by the jury.

Just as it did when a federal trial judge in Utah struck down that state’s ban on same-sex marriage, this afternoon the Supreme Court put on hold a ruling by the U.S. Court of Appeals for the Fourth Circuit, which had held that Virginia’s ban on same-sex marriage is unconstitutional.

Michele McQuigg, the county clerk for Prince William County, Virginia, had asked the Court to step in to stay the Fourth Circuit’s decision, which otherwise would have gone into effect tomorrow.  The application for a stay went to Chief Justice John Roberts, who handles such requests from the geographic area that includes Virginia.  Roberts then referred the application to the full Court; there were no recorded dissents from today’s order.

McQuigg’s request had the support of state officials in Virginia, who have told courts that they believe the ban on same-sex marriage is unconstitutional but have nonetheless continued to defend it.  Those officials urged the Court earlier this week “to decide the constitutionality of Virginia’s ban as quickly as possible.”  They suggested, and McQuigg agreed, that the Court should convert McQuigg’s stay application into a formal petition for the Court’s review (as opposed to merely a request to block the lower court’s decision).  But the Justices apparently declined to do so:  the order indicates that the Fourth Circuit’s ruling is “stayed pending the timely filing and disposition of a petition for a writ of certiorari.”  Continue reading »


The Supreme Court labored over some major rulings at its last Term, but perhaps no harder on any one of them than on a case it did not actually decide.  For twenty-three straight private sessions, from before the Term opened to shortly before it ended, the Court had before it the Arizona murder case of Ryan v. Hurles.  Dismissed then for a procedural reason, it has returned — in an expanded form.

No one outside the Court has any idea what had stymied the Court — if, indeed, it was stymied by this case — throughout the Term.  The case then turned on the single issue of whether a state court conviction could be open to a challenge in a federal court solely because the state court had not held a hearing to weigh evidence on a key legal point.  In the new version, state lawyers have added a second issue, on the performance of a defense lawyer during a state court appeal.

Continue reading »

Petition of the day

By on Aug 19, 2014 at 10:10 pm

The petition of the day is:

Lopez v. Smith

Issue: Whether the Ninth Circuit failed to apply the deferential standard of review required by 28 U.S.C. § 2254(d) when it granted federal habeas relief from a state murder conviction on the ground that the prosecutor’s request for an aiding-and-abetting instruction at the jury-instruction conference violated a putative constitutional right to prior notice of the government’s theory of prosecution – a right that has been recognized in the court of appeals’ own precedents, but not established by any holding of this Court.


Tuesday round-up

By on Aug 19, 2014 at 6:57 am

Yesterday supporters of same-sex marriage urged the Court not to delay the implementation of a ruling by the U.S. Court of Appeals for the Fourth Circuit, striking down Virginia’s ban on same-sex marriage; in his own filing, the Virginia attorney general asked the Court to stay the lower court’s ruling but – like same-sex marriage supporters – asked it to move to decide the issue as soon as possible.  Lyle Denniston covered the developments for this blog; other coverage comes from Lawrence Hurley of Reuters.  In The Washington Post, Robert Barnes focuses on the Court’s 1972 order in Baker v. Nelson, a challenge to Minnesota’s denial of a marriage license to a same-sex couple, and what it might mean for the current challenges to state bans on same-sex marriage.  Continue reading »

Posted in Round-up

Petition of the day

By on Aug 18, 2014 at 10:15 pm

The petition of the day is:

City of Los Angeles v. Patel
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as co-counsel to the respondent in this case.

Issue: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

UPDATE Tuesday 1:48 p.m.   The Virginia county clerk seeking a delay of a federal appeals court decision striking down the state’s ban on same-sex marriage told the Supreme Court Tuesday that she does not oppose converting that request into a formal petition for review of the case.  Her filing clears the way for the Court to act at least on the stay request, ahead of a Thursday morning date for the appeals court decision to take effect.

Meanwhile, the U.S. Court of Appeals for the Ninth Circuit refused to take up before the en banc court as the first step in its consideration of the appeal by the state of Idaho from a district court ruling nullifying its ban on same-sex marriage.   The order is here.  The case thus will be heard on September 8 by a three-judge panel.


State officials in Virginia urged the Supreme Court on Monday to put on hold a federal appeals court decision striking down the state’s ban on same-sex marriage, but they also asked the Justices to move to decide that constitutional issue “as quickly as possible.”  Lawyers for two groups of same-sex couples in Virginia opposed delay, but they also asked the Court — if it does order a postponement of that lower court decision — to move ahead swiftly to rule on the core question.

One of the three new filings urged the Court to arrange to act on whether it will review that question at its “next Conference” — that is, the private gathering that the Justices will hold on September 29, ahead of the formal opening of the new Term.  At that Conference, the Justices will begin adding new cases for decisions to be issued by early next summer.

The new filings in the Virginia case are herehere, and here. Continue reading »

UPDATE 7:01 p.m.  Additional material has been added to this post.


Challengers to a key part of the Obama administration’s plan for enforcing the new health care law urged a federal appeals court on Monday to stand aside and let the issue be decided finally — and soon — by the Supreme Court.  A sixteen-page brief opposed the government’s plea for a new review of that dispute before the en banc U.S. Court of Appeals for the District of Columbia Circuit.

At stake in this controversy is a government rule that extended a system of tax credit subsidies to enable lower-income individuals to buy health insurance on marketplaces, or “exchanges,” set up and run by the federal government.  If that rule is struck down, as the challengers want, it would undermine much of the economic basis for the entire Affordable Care Act.  Federal exchanges exist in thirty-four states.

Continue reading »

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