Whether deservedly or not, an opinion by Ninth Circuit Judge Stephen Reinhardt granting habeas relief to a state prisoner notwithstanding the deferential approach mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is often fodder for terse – if not summary – reversals by the Supreme Court. But Davis v. Ayala, which is scheduled for oral argument before the Justices next Tuesday, comes to the Court with a twist of the Justices’ own making: Rather than simply granting the single, AEDPA-based question presented by California’s petition for certiorari, the Justices added a second question to the case – one that, properly understood, may well signal the Supreme Court’s inclination to dig into some of the merits of respondent Hector Ayala’s habeas claim, and not just provide another reprimand to the Ninth Circuit for a lack of fealty to AEDPA. And although California may well prevail on those merits, the potential significance of the Justices even reaching the substance of Ayala’s claims could yield the most significant habeas decision of the current Term. Continue reading »


Relist Watch

By on Feb 27, 2015 at 9:15 am

John Elwood reviews Monday’s relisted cases.

It has been a rough month since our last installment. Much of the country, from the Dakotas to Dallas, has seen record low temperatures, causing pipes to burst, and creating icy roads and massive pile-ups. Boston has endured more snowfall than at any time since wooly mammoths roamed the area. On several occasions, the D.C. area received as much as three-quarters of a centimeter of snow, causing even less to get done than usual. But on the other hand, we made it almost all the way through February without Relist Watch, so things have been pretty good overall. Continue reading »


Friday round-up

By on Feb 27, 2015 at 6:22 am

All eyes are on next week’s oral arguments in King v. Burwell, the challenge to the availability of tax subsidies for individuals who purchase their health insurance on a marketplace created by the federal government.  I previewed the case earlier this week in Plain English; other coverage and commentary come from David Savage of the Los Angeles Times (registration may be required), Julie Appleby of Kaiser Health News (via Philly.com), Paul Barrett of Bloomberg, Elizabeth Wydra in an op-ed for The Washington Post, Joel Ario, Michael Kolber, and Deborah Bachrach at The Commonwealth Fund Blog, David Nather and Jennifer Haberkorn of Politico Pro, Sarah Kliff of Vox, Larry Levitt and Gary Claxton at the Kaiser Family Foundation, Eric Segall at ACSblog, Jonathan Keim at the National Review Online’s Bench Memos, and Douglas McSwain at ACSblog. Continue reading »

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Petition of the day

By on Feb 26, 2015 at 10:14 pm

The petition of the day is:


Issue: (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

It looked bleak for petitioner Baker Botts from the earliest moments of the argument yesterday in Baker Botts L.L.P. v. ASARCO LLC. The issue in the case is whether the fees that a law firm (Baker Botts) spends defending a fee application in bankruptcy can be compensated out of the estate, and the Justices who showed much interest in that question seemed hesitant (at best) to allow compensation.

For almost the entire time Aaron Streett was at the lectern (for Baker Botts), he was peppered with questions from the Chief Justice and Justices Antonin Scalia and Sonia Sotomayor. Justice Scalia’s comments suggested that he was sympathetic to the argument of ASARCO (the party opposing Baker Botts’s fee application) that the statute permits compensation for fees only if the services help the estate. Distinguishing between the costs of preparing the fee application (which plainly are compensable) and the costs of litigation defending the application (the issue here), Justice Scalia commented: “[W]hen you prepare [the fee application] you’re serving the trustee – you’re serving his needs. But if he’s disallowing it, you’re, the contrary, acting against the trustee’s interest.” Continue reading »

Screen Shot 2015-02-26 at 12.19.40 PMScott Dodson, editor, The Legacy of Ruth Bader Ginsburg, Cambridge University Press, 2015 (336 pp., cloth, $29.99)

Scott Dodson, the editor of this volume, has brought together an impressive group of law professors, lawyers, historians, and journalists to write about Justice Ruth Bader Ginsburg’s legacy. There are sixteen essays, each devoted to different periods of her life and work, with very little overlap in the coverage, and no real conflict of interpretation. In addition to Dodson’s own essay, the book includes contributions by, among others, Thomas Goldstein, Lani Guinier, Robert Katzmann, Herma Hill Kay, Linda Kerber, Dahlia Lithwick, Neil and Reva Siegel, Nina Totenberg, and Joan Williams. Continue reading »


At its Conference on February 27, 2015, the Court will consider petitions seeking review of issues such as Article III standing in class actions, exemption from California’s campaign finance disclosure requirements, and the retroactive application of Miller v. Alabama.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

Continue reading »


It looks like the Justices are firmly committed to deciding Tibble v. Edison International, even though the parties now agree on the big issue on which the Justices granted review: whether the fiduciaries of an ERISA plan have a continuing duty of prudence that requires periodic monitoring of investments, or is the duty instead measured at the single point in time when the investment is made. And there’s little doubt that the Court will hold that there is such a duty, because Jonathan Hacker – representing Edison International, the employer – readily conceded its existence. Continue reading »

Thursday round-up

By on Feb 26, 2015 at 9:48 am

Yesterday the Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, the federal government’s challenge to a retail store’s refusal to hire a Muslim teenager because she wore a headscarf.  Lyle Denniston covered the oral argument for this blog, and I did the same in Plain English.  Other coverage comes from Nina Totenberg of NPR, Jess Bravin of The Wall Street Journal, Richard Wolf of USA Today, and the BBC News, while at Education Week Mark Walsh looks at the case’s implications for schools.  At Fivethirtyeight.com, Oliver Roeder tries to quantify the possible results in the case.  Commentary on the case comes from Marci Hamilton, who at Hamilton and Griffin on Rights suggests that, “whatever the Court does, employers and employees have good reason to demand clearer guidance from Congress.”    Continue reading »

Posted in Round-up

Petition of the day

By on Feb 25, 2015 at 10:20 pm

The petition of the day is:


Issue: Whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message, thereby incorporating a heckler's veto into the free speech rights of students contrary to Tinker v. Des Moines Independent Community School District, and the decisions of other United States courts of appeals.

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