Nine months after the Supreme Court allowed enforcement of a Texas law that led to the closing of a third of all clinics in that state, a new courthouse battle over that same law is rapidly developing.  In a rushed motion filed on Sunday, the state of Texas took the issue back to the U.S. Court of Appeals for the Fifth Circuit after a federal judge in Austin struck it down on Friday afternoon.  The issue may not stop at the appeals court level.

The issue has also spread to Lousiana, where a federal judge on Sunday night temporarily blocked a similar law from taking effect in that state Monday.  Earlier, the dispute had also reached Alabama and Mississippi as decisions began emerging in lawsuits challenging a series of new laws by state legislatures narrowing access to abortions.

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Petition of the day

By on Aug 29, 2014 at 10:20 pm

The petition of the day is:

Kolon Industries, Incorporated v. E.I. DuPont de Nemours & Company
14-77

Issue: Whether, under 28 U.S.C. § 455(b), the federal recusal statute, a federal judge is relieved of his mandatory statutory duty of self-disqualification simply because neither party filed a timely motion to disqualify the judge.

The last in the first round of new same-sex marriage cases to reach the Supreme Court — an appeal by a county clerk in Virginia — was filed on Friday, and it offered the Court a variety of options for confronting the constitutional controversy.  While making a plea that this case be the one chosen for review, it also accepted being put on hold if the Court were to choose to move ahead with another case instead.

A key facet of the new petition, McQuigg v. Bostic (not yet assigned a docket number), was a suggestion that the Court put its primary focus on the basic issue of state power to restrict marriage to opposite-sex couples, thus leaving aside for now the separate issue of state authority to refuse to recognize already existing same-sex marriages.  Even so, the new filing also gave the Court an optional bit of advice about taking on the recognition issue, too.

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Petition of the day

By on Aug 28, 2014 at 10:11 pm

The petition of the day is:

Bonner v. City of Brighton, Michigan
14-63

Issue: (1) Whether certiorari should be granted to resolve the conflicting decisions between the Michigan Supreme Court and other states’ courts as to whether an ordinance violates substantive and procedural due process when it creates a presumption that an unsafe structure shall be demolished as a public nuisance if the cost to repair the structure would exceed its value and when the ordinance does not afford the owner an option to repair as a matter of right; and (2) whether the Brighton code of ordinances § 18-59 is facially unconstitutional, in violation of both substantive and procedural due process, where it creates a presumption that an unsafe structure shall be demolished as a public nuisance if the cost to repair the structure would exceed 100% of the structure’s true cash value as reflected in assessment tax rolls before the structure became unsafe and does not afford the owner of such a structure an option to repair as a matter of right.

The same-sex marriage case that is most familiar to the Supreme Court — from Utah — is close to being ready for the Justices to consider it alone or among other cases for review.  Lawyers for three couples — two who wish to marry, and one seeking official recognition of their existing marriage — on Thursday filed a brief supporting review of the already-filed appeal by Utah state officials.

This is the lawsuit in which the Supreme Court itself on January 6 blocked a federal judge’s ruling in favor of same-sex marriage, to allow time for an appeal.  Since then, the U.S. Court of Appeals for the Tenth Circuit has agreed with that judge, striking down the ban that Utah voters approved by a two-to-one margin ten years ago.

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Thursday round-up

By on Aug 28, 2014 at 7:20 am

Briefly:

  • In The National Law Journal’s Supreme Court Brief (registration or subscription required), Tony Mauro reports on the reorganization of the Supreme Court Clerk’s Office in the wake of the upcoming retirement (effective September 1) of Chief Deputy Clerk Chris Vasil.  (Lyle Denniston also reported on these developments for this blog.) Continue reading »
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In the most specific advice so far on how the Supreme Court could handle the same-sex marriage cases, lawyers for an Oklahoma lesbian couple urged the Justices on Wednesday to consider two options:  a slimmed-down, one-issue, one-case review or a sweeping, all-issues, multiple-cases approach.

That filing also suggested that the Court might want to divide argument between two different constitutional tests for judging the validity of states’ bans on same-sex marriage.  The document was the closest thing the Court has so far seen to a distinct plan for review of the rapidly expanding caseload on the issue.  Up to now, filings have been largely focused on promoting specific petitions as the best candidates for review.

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Petition of the day

By on Aug 27, 2014 at 10:13 pm

The petition of the day is:

Williams-Yulee v. The Florida Bar
13-1499

Issue: Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

Petition of the day

By on Aug 26, 2014 at 10:19 pm

The petition of the day is:

13-1333

Issue: Whether, under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

Tuesday round-up

By on Aug 26, 2014 at 7:23 am

Recent coverage related to the Court focuses on the release by the Department of Health and Human Services of new proposed regulations intended to comply with the Court’s June 30 decision in Burwell v. Hobby Lobby, as well as an interim final rule for non-profit religious groups in the wake of the Court’s July 3 order in a case involving Wheaton College.  Lyle Denniston covered the release for this blog; commentary and analysis come from Marty Lederman at Balkinization, Molly Duane at Hamilton and Griffin on Rights, Leland Beck at Federal Regulations Advisor, and Steven Mazie at The Economist’s Democracy in America blog. Continue reading »

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