Editor's Note :

Editor's Note :

At 9:30 a.m. on Monday we expect additional orders from the Court's November 25 Conference. On Tuesday, December 2, we expect one or more opinions in argued cases; we will begin live blogging shortly before 10:00 a.m.

Today’s news coverage features a vigorous debate over last night’s announcement that a grand jury in Missouri declined to indict police officer Darren Wilson for his role in the death of Michael Brown, an unarmed African-American teenager. Some believe that Wilson clearly should have been indicted for an unnecessary and unjustified killing; others counter that the grand jury process allowed the development of facts which show that Wilson acted well within the rules governing law enforcement and self-defense. In this column – which we hope to make a recurring feature on the blog – I hope to situate this legal news in the context of relevant Supreme Court decisions (here, decisions about how grand juries work), and in doing so help to advance a better understanding of both the news and the law.   Continue reading »

Posted in Analysis, Featured

The Supreme Court, in a pre-holiday Conference, agreed on Tuesday to rule during the current Term on the authority of police when they attempt to deal with a mentally disturbed person who is armed and violent, and on the Environmental Protection Agency’s authority to regulate mercury pollution from electric power plants.   Hearings on the cases are likely to be held in March.

Continue reading »

Moving rapidly to help persuade the Supreme Court to take up the same-sex marriage issue promptly, Michigan officials filed their brief Monday night in a key case from the U.S. Court of Appeals for the Sixth Circuit — the only federal appeals court in the recent round of rulings to uphold a state’s ban on such unions.

The state’s brief was sent to the Court three weeks earlier than it would have been due.  Although in favor of early review by the Justices, state officials continued to defend their ban, arguing that the Sixth Circuit got it right in declaring that the question should be left to the will of a state’s voters.

Continue reading »


How to prepare for oral argument; answering the questions asked; and the (limited) relation of ideas of Justices, the Court, and jurisprudence to the reality of oral argument.

“Just the way they say, ‘Battle plans never survive contact with the enemy,’ oral argument plans never survive contact with the Court.”

In this six-part interview, Eric Schnapper — Supreme Court advocate and holder of the Betts, Patterson & Mines Professorship in Trial Advocacy at the University of Washington School of Law — discusses his background, from Yale Law School to a twenty-five-year career at the NAACAP Legal Defense Fund to legal academe; how Supreme Court advocacy differs from other legal advocacy; the importance of legal briefs and their relation to oral argument; what one can and cannot prepare for in oral argument; and stories and what one learns from a long career as a Supreme Court advocate.

Posted in Everything Else

Tuesday round-up

By on Nov 25, 2014 at 8:02 am


  • In his Sidebar column for The New York Times, Adam Liptak discusses whether there is a “tipping point” at which the Court may feel ready to invalidate state practices, such as bans on interracial marriage, and what that might mean for the challenges to state bans on same-sex marriage.
  • In The New Yorker, Jill Lepore has the story of the “biggest heist in the history of the Library of Congress” – the theft of “more than a thousand pages from the papers of the U.S. Supreme Court Justice Felix Frankfurter.”
  • In The National Law Journal, Marcia Coyle reports on the case of Mark Christeson, a Missouri death row inmate whose petition for certiorari the Justices will consider today.
  • At ThinkProgress, Bryce Covert reports that forty-three “sexual harassment cases have been dismissed” in the wake of Vance v. Ball State University, a 2013 decision in which the Court held that – for purposes of vicarious liability under the Civil Rights Act – a “supervisor” is someone who is authorized to take tangible employment actions against the victim.

[Disclosure: Tejinder Singh of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel on an amicus brief in support of the petitioner in Christeson.]

Posted in Round-up

Petition of the day

By on Nov 24, 2014 at 10:08 pm

The petition of the day is:


Issue: Whether, if a state appellate court rejects an unpreserved federal claim after assessing whether the “plain error” exception to state preservation requirements permitted review, but does not explain its reasoning, a federal habeas court should conclude that the state court ruled on the federal claim’s merits, such that federal court review is appropriate.


Protesting at the funeral of a fallen soldier. Lying about your military record. Violent video games for children. Making videos about dogfighting. In the past few years, the Supreme Court has held that the First Amendment protects all of these forms of expression, even when very unpopular or offensive. Next week the Justices will hear oral arguments to determine whether Anthony Elonis’s Facebook posts, which left his ex-wife “extremely scared” and an FBI agent worried about her family’s safety, are entitled to the same kind of protection. Let’s talk about Elonis v. United States in Plain English. Continue reading »

Leondra R. Kruger, who argued a dozen cases before the Supreme Court while in the U.S. Solicitor General’s office, will be nominated to a seat on the California Supreme Court, Governor Edmund G. Brown said in a public statement.  Since 2013, Kruger has been serving in the Justice Department’s Office of Legal Counsel as a deputy assistant attorney general.

On the state court, she would succeed Associate Justice Joyce L. Kennard, who has retired.  Kruger’s nomination awaits review by the state bar and by a judicial appointments commission.

Posted in Everything Else
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