Editor's Note :

Editor's Note :

On Tuesday the Court will hear oral argument in Obergefell v. Hodges, which is consolidated with three other cases, on the questions of whether the Fourteenth Amendment requires that states grant and/or recognize same-sex marriages. We will be live-blogging updates from the oral argument at this link beginning at 10:45 a.m.
We expect one or more opinions in argued cases at 10 a.m. on Wednesday. We will be live-blogging here.

For the better part of twenty years, the jurisdiction of the federal courts of appeals to review different decisions by the Board of Immigration Appeals (BIA) has been something of a minefield. That morass returns to the Court on Wednesday in Mata v. Holder, the final oral argument of the current Term. But whereas the question presented in this case – whether courts of appeals have jurisdiction to review the BIA’s denial of an immigrant’s motion to reopen his removal proceedings based upon a claim that his original counsel was ineffective – may sound difficult, not even the federal government is defending the Fifth Circuit precedent at issue (which answered that question in the negative and thereby created a ten-to-one circuit split). Thus, the last hour of argument before the Justices until October may be entirely anticlimactic – and not just because of the contrast with the other cases the Court is set to hear this week. Continue reading »


The Supreme Court, moving into a basic separation-of-powers constitutional arena, agreed on Monday to spell out Congress’s authority to give someone a right to sue in federal court — even if that individual cannot show that a specific harm was done.  That is an issue under Article III of the Constitution and arose in the case of Spokeo Inc. v. Robins, which will be heard and decided in the Court’s next Term.

That was one of two new cases that the Justices accepted for review.  The other will clarify the time limits for a federal government employee to sue to claim an illegal “constructive discharge” from the job — that is, the employee was forced to resign because of harmful conditions at work (Green v. Donahoe).   The Court also sent another case on the enforcement of the federal Affordable Care Act’s birth-control mandate for religious non-profit colleges, hospitals, and charities seeking an exemption based on faith back to a lower court for a further look .

Continue reading »


Monday round-up

By on Apr 27, 2015 at 6:42 am

Tomorrow’s arguments in the challenges to state bans on same-sex marriage dominate coverage of and commentary on the Court.  At this blog, Lyle Denniston outlined the “decisive questions” to watch tomorrow, with other coverage coming from NPR’s Nina Totenberg, who looks at same-sex marriage in the Justices’ own words, Chris Geidner of BuzzFeed, Marcia Coyle and Tony Mauro of The National Law Journal (subscription required), Jess Bravin of The Wall Street Journal,

In a podcast for NPR, Totenberg, Mara Liasson, and SCOTUSblog’s Tom Goldstein discuss “the legal questions before the Court and seismic shift in the culture and politics on this issue.”  And in The New York Times, Sheryl Gay Stolberg reports on how the case of Jim Obergefell, one of the plaintiffs in the Ohio challenge, “has become the measure of something else entirely: how far the gay rights movement has come in one of the most traditionally conservative corners of the Midwest.”  Continue reading »

Posted in Round-up


Twenty-two months ago, the Supreme Court — perhaps not fully realizing that it was doing so — set off a constitutional revolution.  In a decision that spoke somewhat tentatively about an “evolving understanding of the meaning of equality,” the Court in United States v. Windsor saw in that understanding a deep even if new respect in America for the dignity of same-sex couples who choose to marry.

What followed from that, with astonishing speed, was that the list of states where such marriages became legal expanded from twelve to thirty-six.   Lower federal courts, in particular, led the way.  On Tuesday, at a two-and-a-half-hour hearing, the Supreme Court confronts a simple question: did those courts go astray, and misread what Windsor really meant?

A cabinet shelf full of about one hundred and fifty briefs introduced the Justices to that question from many angles.  But the actual outcome of the case known as Obergefell v. Hodges could well depend upon how the Court answers three core onstitutional issues.  Each by itself, in fact, could be decisive: Who decides?  What right is at issue? What is the constitutional test?

Continue reading »

This week at the Court

By on Apr 26, 2015 at 12:02 am

On Monday at 9:30 a.m. we expect orders from the April 24 Conference. We expect one or more opinions in argued cases at 10 a.m. on Wednesday. We will be live-blogging beginning at 9:45.

This is the second week of the April sitting.  On Tuesday the Court will hear oral argument in Obergefell v. Hodges, which is consolidated with three other cases, on the questions of whether the Fourteenth Amendment requires that states grant and/or recognize same-sex marriages. We will be live-blogging updates from the oral argument beginning at 11 a.m.


At 10 a.m. Wednesday, the final day of oral arguments this Term, the Supreme Court will hold a one-hour hearing on an Oklahoma death penalty case that could range widely over broad constitutional questions, or — in the alternative — focus very narrowly on one very specific execution method. Arguing for the three death-row inmates in the case of Glossip v. Gross will be Robin C. Konrad, a federal public defender from Phoenix. Representing Oklahoma will be its solicitor general, Patrick R. Wyrick, of Oklahoma City. Each will have thirty minutes of time.


In an era when botched executions of death-row inmates happen more often, raising new questions about capital punishment, the Supreme Court continues to rely upon a set of legal principles about lethal-drug protocols that have not been reexamined in seven years. The Justices have given themselves the opportunity to do so next week when they hear an Oklahoma case, but just how far they are prepared to go to reopen those principles probably will only be clear as the oral argument unfolds.

In one sense, the case of Glossip v. Gross is focused on the use of a single drug in a three-drug execution “cocktail” — a sedative, the first dose, that is supposed to put the inmate in a sufficiently deep state of unconsciousness that there will be no pain, or at least only tolerable pain, from injections of the other two drugs, which paralyze and then kill. But in another sense, the entire constitutional structure surrounding execution by lethal drugs could be at stake.

Continue reading »


Petition of the day

By on Apr 24, 2015 at 10:40 pm

The petition of the day is:


Issue: (1) Whether, in a 42 U.S.C. § 1983 action brought by an individual alleging that a prior criminal conviction was obtained in violation of this Court's decision in Brady v. Maryland – requiring the prosecution to turn over potentially exculpatory evidence – the statute of limitations runs from the time the case is resolved via nolle prosequi or otherwise “in such manner that [proceedings] cannot be revived” – as the Fourth Circuit below concluded – or runs from the moment the plaintiff may bring the action under this Court’s decision in Heck v. Humphrey – as the Tenth Circuit has concluded and as the Sixth, Ninth, and Eleventh Circuits have suggested; and (2) whether the Fourth Circuit erred when it concluded, inconsistent with its own decisions and those of this Court, that individual police officers had an independent Brady duty to bring forward exculpatory evidence in 1988 and that this was clearly established so as to support a cause of action against the individual officers under 42 U.S.C. § 1983 and negate a defense of qualified immunity.


This week’s arguments

By on Apr 24, 2015 at 3:58 pm

Oyez has posted audio and transcripts of this week’s arguments.

The Court heard arguments this week in:

Posted in Everything Else

Few subjects are more timely than the use of excessive force by law enforcement officials, and the Supreme Court on Monday will consider an aspect of that issue: how to evaluate excessive force claims made by pretrial detainees.

Specifically, the Court will try to resolve a deep split among the federal appeals courts over whether a pretrial detainee may demonstrate unconstitutional excessive force by showing conduct that was objectively unreasonable or whether evidence of a subjective intent to harm the detainee is also required.

The importance of the case, Kingsley v. Hendrickson, may be lost in the shadow of the same-sex marriage dispute being argued the next day. Pretrial detention presents a set of fascinating analytical challenges for the courts, with both practical and theoretical ramifications that are important because by many estimates there are more than 450,000 individuals in pretrial detention in the United States on a typical day. While the overwhelming majority do not face issues of excessive force, complaints by detainees have arisen in almost all of the federal appeals courts. Continue reading »

Relist Watch

By on Apr 24, 2015 at 10:29 am

John Elwood reviews Monday’s relisted cases.

Apart from the release of the Court’s order list, the big news Monday was the announcement of this year’s Pulitzer Prizes. And once again, we have been cheated of our rightful gold Pulitzer medallion and $10,000 in prize money. We figured we’d at least get some recognition for our poetry submissions, if not for explanatory reporting, public service, or even our editorial cartooning (what is with that pinkie, anyway?). As an aside, while ten Gs might make for a decent hip-hop starter kit, that kind of stumpy seems a little meager for the preeminent prize in American journalism. No wonder journalism seems about as appealing nowadays as, well, law. Continue reading »

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