The Supreme Court on Tuesday issued the final order in the same-sex marriage cases, a document which formally puts that decision into effect.  The four-page order can be read here.

Although the Court issued its ruling on June 26, its rules allow twenty-five days for a request to reconsider; after that, the Court waits another week to make sure that a petition for rehearing has not been sent through the mail.  Because no petition for rehearing was filed, the case was closed with the Tuesday order.

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Posted in Featured

Event announcements

By on Jul 28, 2015 at 9:25 am

On July 29 at 1 p.m. the State & Local Legal Center will host a webinar on the recently ended Term’s police cases.  The discussion will feature Melissa Arbus Sherry and David Salmons.

On September 16 at 7:00 p.m., Justice Stephen Breyer will discuss his new book with NPR’s Nina Totenberg at Sixth and I in Washington, D.C. More information and tickets are available through Sixth and I’s website.

Posted in Everything Else

Evenwel v. Abbott may wind up being the most important voting case in sixty years. Its political ramifications could rival those of Reynolds v. Sims, the 1964 case that established the principle of “one person, one vote” under the Equal Protection Clause of the Fourteenth Amendment. The key question in Evenwel is what population does that principle require legislatures to use when they are redrawing legislative districts?

Prior to Reynolds, states like Alabama and Tennessee had refused to redistrict for more than half a century, despite a dramatic, nationwide population shift from rural to urban areas. These state legislatures were dominated by rural legislators, who were not willing to reapportion and lose their power and control.

Under the principle established in Reynolds, districts have to be drawn “on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Within two years of the Reynolds decision, legislative districts had been redrawn in almost every state, and urban areas gained a substantial number of legislative seats. Continue reading »

Editor’s note: This post examines two cases the Supreme Court will review at its next Term:  Evenwel v. Abbottand Harris v. Arizona Independent Redistricting CommissionThis post will be followed this week by a symposium on Evenwel.

In a rare meeting with reporters in early July 1968, Chief Justice Earl Warren answered readily when asked which of the Court’s decisions in his momentous years on the Supreme Court were most important.  The series of rulings, he said, that created the constitutional idea of “one person, one vote.”  That is a basic theory of democratic representation: no individual’s vote may be weighted more heavily than any other’s.  Election districts, for Congress and state legislatures, must be drawn as close to equal in population as can practically be done.

The clearest expression of that idea came in the 1964 decision in Reynolds v. Sims.  Now, a half-century later, the Court has assigned itself the task of deciding — remarkably, for the first time — how to get to that goal.  What, it will answer in one case, population measure should be used: total people in a district, total citizens, total citizens of voting age, total numbers of registered voters?  And, in a second case, the Court will answer whether it violates the equality principle if districts are drawn in a way that favors one party’s candidates.

Both cases involve cross-currents of political theory, and both have the potential to directly change election outcomes and the election fortunes of the two major political parties.  There is considerable complexity here, so let’s try to make this simple.

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Event announcement

By on Jul 24, 2015 at 10:42 am

On July 31, as part of the ABA’s annual meeting, the ABA Criminal Justice Section will host a panel discussion of the past Term’s criminal cases. Details on the panel location and a list of panelists is here; registration for the annual meeting is here.


Friday round-up

By on Jul 24, 2015 at 7:39 am


  • In The Washington Times, Tom Howell Jr. reports that, “[r]oughly a week after its loss before an appeals court in Denver, a group of nuns who objected to Obamacare’s birth-control mandate have taken their case to the Supreme Court.”
  • David Lightman of McClatchyDC reports on an exchange between Republican presidential candidate Rick Santorum and television host Rachel Maddow on the role of the Supreme Court.

The round-up will be on vacation next week.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up when we come back, please send it to roundup [at]

Posted in Round-up

A federal appeals court, arguing that the Supreme Court’s abortion rights rulings leave too little room for states to limit the procedure to protect fetal life, has urged the Justices to reconsider a basic idea behind Roe v. Wade.  The idea, never explicitly abandoned by the Court, is that states are forbidden to ban abortions before a fetus is capable of living outside the woman’s body.

The U.S. Court of Appeals for the Eighth Circuit, in a new ruling on Wednesday involving the nation’s most restrictive abortion control law, argued that the so-called “fetal viability” approach has become “unsatisfactory” because it has not kept pace with changes in fetal medicine.  Although the North Dakota law at issued was struck down, the three-judge panel made it clear it ruled that way because the Court had given it no choice, but that it was troubled at having to do so.  State legislatures, not courts, should be making decisions about the state of medical science, it said.

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As of now, the Court has granted certiorari (or, in one “original jurisdiction” case, Mississippi v. Tennessee, review) in thirty-five cases for the upcoming Term.  That is nine more cases than at the same time last Term — but I would still expect a number of new cases to be added to the docket after the Court’s “opening conference” on September 28, 2015.

Eleven of the cases in which review has already been granted for the next Term are criminal-law or related (under my generous standards).  The Eighth Amendment portends to be a particular focus: four cases involve the death penalty, and a fifth involves juvenile life without parole.  The other interesting note is that, so far, not a single case granted for next Term involves the Fourth Amendment.  I can’t recall a prior Term where that was true at the end of the prior Term.

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Thursday round-up

By on Jul 23, 2015 at 9:26 am


  • In her column for The New York Times, Linda Greenhouse discusses the challenges to the Affordable Care Act’s birth-control mandate by religious non-profits and the possibility that the groups’ “argument goes too far, even for the Roberts court.”
  • In the Supreme Court Brief (subscription required), Tony Mauro reports that the “recent release of the annual financial disclosure forms submitted by U.S. Supreme Court justices has renewed the debate over when justices should recuse in pending cases and how they should avoid conflicts of interest.”
  • In The National Law Journal (subscription or registration required), Marcia Coyle reports that the Court’s “recent decisions on same-sex marriage and health care served as the catalysts for” Republican presidential candidate Ted Cruz’s “Senate hearing Wednesday on retention elections, term limits and other means to rein in what he labeled the justices’ ‘lawlessness.’”
  • In the Supreme Court Brief (subscription required), Coyle reports that “[l]egal challenges to solitary-confinement policies are working their way through the federal courts to the U.S. Supreme Court faster than one justice in particular may have anticipated.”
  • In another story for the Supreme Court Brief (subscription required), Coyle reports that awards of attorney’s fees in patent cases have increased in the wake of the Court’s 2014 decision in Octane Fitness v. Icon Health & Fitness.
  • In USA Today, Richard Wolf reports on the legal battles – often involving religious objections to same-sex marriage by providers of wedding services – that are brewing in the wake of the Court’s same-sex marriage decision.
  • In an op-ed for The Week, Scott Lemieux criticizes comments by Michael Cannon, one of the architects of the challenge to the availability of tax subsidies under the ACA; he contends that the fact that the challenge “was based on an almost comically transparent historical sham surely helps to explain why Roberts rejected the argument of the plaintiffs so forcefully.”
  • In an op-ed for The Washington Post, Lee Rowland argues that, “when the Supreme Court had its chance to weigh in on the Confederate flag debate — and protect the First Amendment rights of Texans who wanted to display it on their cars’ license plates — the Court got it wrong.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

Posted in Round-up

In her contribution to the Yale Law Journal’s symposium on arbitration, Judith Resnik analyzes the last thirty years of the Supreme Court’s cases interpreting the Federal Arbitration Act and reaches a surprising conclusion:  Although these decisions have encouraged the “mass production of arbitration clauses” requiring hundreds of millions of consumers and employees to use arbitration to resolve disputes, these groups almost never do so.  In other words, Resnik finds that the practical effect of the Court’s arbitration jurisprudence has been to replace a system of public judicial dispute resolution with no dispute resolution at all.

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