Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the May 1 Conference. We also expect one or more opinions at 10. We will be live-blogging begining at 9:15 at this link.

This week at the Court

By on May 3, 2015 at 12:01 am

On Monday at 9:30 a.m. we expect orders from the May 1 Conference, followed by one or more opinions in argued cases at 10. We will be live-blogging beginning at 9:15.

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Petition of the day

By on May 1, 2015 at 10:22 pm

The petition of the day is:

14-894
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether the Federal Deposit Insurance Act preempts the application of state interest rate limitations to loans that were underwritten and originated by a state-chartered bank, when a non-bank acquires a predominant economic interest in the loans.

Julie Goldscheid is a Professor at CUNY School of Law.

On Wednesday, the Court issued its unanimous decision, written by Justice Elena Kagan, in Mach Mining, L.L.C. v. Equal Employment Opportunity Commission. As discussed in more detail in my argument preview and analysis, the case raised the question whether and to what extent the EEOC’s attempt to conciliate complaints of discrimination between claimants and employers is subject to judicial review. Consistent with the Justices’ critical questioning of both sides at oral argument, the Court declined to adopt the position either side proposed. Instead, the Court issued what might be seen as a compromise position, one the Court itself deemed “manageable.” It rejected the government’s position that no review was required, but defined the scope of review as “limited.”

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This week’s arguments

By on May 1, 2015 at 1:44 pm

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

The Court heard arguments this week in:

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At its Conference on May 1, 2015, the Court will consider petitions seeking review of issues such as pretrial restraint of a criminal defendant’s untainted assets under the Fifth and Sixth Amendments, and preemption of California’s meal and rest break laws.

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.

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Relist Watch

By on May 1, 2015 at 12:19 pm

John Elwood reviews Monday’s relisted cases.

We were as amazed as everyone by news accounts of SCOTUS fans who camped out over the weekend waiting for the orders needed to figure out the new relists. For those with a little more patience (or without six large to spare), we present this year’s Relist Derby betting guide. Like any good handicapper, we list every petition in the running then crow about it when one of our upstart wild guesses pans out. Hope you’ve eaten your Frosted Flakes; this is going to be a long one. There are a huge number of new relists this week. Continue reading »

 
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Capture

“I’m expecting a decision that is either all or nothing. And, I expect that the Court will rule that there is a constitutional right that protects same-sex couples’ right to marry.”

Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and author most recently of Marriage Equality on Trial, discusses his impressions of the April 28 oral arguments in Obergefell v. Hodges. Yoshino describes his sense of the Court from the arguments; the major legal arguments made and the relevance of changing rationales opposing same-sex marriage; the question of what level of legal scrutiny the Court may apply; the importance of children to Justices’ thinking about same-sex marriages; what happens next; and what questions from Chief Justice John G. Roberts, Jr., about discrimination based on gender rather than sexual orientation might mean.

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Friday round-up

By on May 1, 2015 at 7:25 am

On Wednesday, the Court heard oral arguments in Glossip v. Gross, the challenge to Oklahoma’s lethal injection protocol.  I covered the oral argument for this blog in Plain English, with other coverage coming from David Savage of the Los Angeles Times.  And Sean Murphy of the Associated Press (via AOL News) reports that the manufacturer of the drug at the heart of the case has asked Oklahoma to “return any supplies it may have obtained and not to use its products to execute prisoners.”  Commentary comes from Eric Berger, who in an op-ed at CNN argues that the states’ secrecy about their lethal injection protocols “is crucial to the Eighth Amendment values at issue in the case.” Continue reading »

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Petition of the day

By on Apr 30, 2015 at 10:24 pm

The petition of the day is:

14-825

Issue: (1) Whether the Ninth Circuit erred in holding, contrary to this Court's decision in Demore v. Kim, that under United States v. Salerno, a denial of bail is permissible “only” after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail such as Arizona's Proposition 100 and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states (and perhaps even calling into question categorical bans on bail in capital cases that exist in an additional twenty-two states); (2) whether, when adopting a categorical ban on bail for illegal aliens charged with serious felonies, a state may rely on logical assumptions, testimonial evidence of front-line prosecutors, and other anecdotal evidence that is in conformity with the empirical evidence of heightened flight risk by those unlawfully present in this country contained in studies conducted elsewhere, similar to what this Court has approved in analogous contexts, see City of Renton v. Playtime Theaters, Inc., or whether the state must conduct its own empirical analysis that is both jurisdiction- and category-specific in order to meet the requirements of Due Process; and (3) whether the Ninth Circuit erred in holding that Proposition 100 was facially unconstitutional, contrary to Salerno's requirement that a statute is facially invalid only if “no set of circumstances exists under which the Act would be valid,” because among those categorically denied bail by Arizona’s Proposition, 100 are individuals charged with capital crimes, whom the Ninth Circuit recognized could categorically be denied bail.

First, there was hanging.  Then there was the electric chair, or in some places the gas chamber and the firing squad.  More recently, many states and the federal government have relied on lethal injection – administering a fatal dose of drugs – to carry out executions.  The switch to lethal injections came in no small part because they were regarded as more humane, for both the condemned inmate and the witnesses to the execution:  the prisoner could simply drift off, as if he were sleeping.

In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly.  But that didn’t end the debate, particularly after several well-publicized botched executions.   And so yesterday the Court heard oral arguments in a new challenge, this time to Oklahoma’s lethal injection procedures.  After over an hour of often-heated debate, the Court’s more conservative Justices seemed like they could be poised to rule once again in favor of the state, in the hope of ending what they regard as a “guerrilla war” against the death penalty itself.  Let’s talk about yesterday’s hearing in Glossip v. Gross in Plain English. Continue reading »

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