Petition of the day

By on May 24, 2016 at 11:10 pm

The petition of the day is:


Issue: (1) Whether the California Court of Appeal erred by holding, in direct conflict with DirectTV v. Imburgia, that the parties’ agreement to apply the Federal Arbitration Act (“FAA”) to govern their arbitration contract was unenforceable because the FAA’s transportation worker exemption applied; and (2) whether the California Court of Appeal erred by holding, in direct conflict with the Second, Eighth, and Eleventh Circuits, that an employee was exempt from the FAA as a “transportation worker” even though he was not employed in the transportation industry.

In its Conference of May 26, 2016, the Court will consider petitions involving issues such as whether and under what standard a corporation or other organization may be deemed to have “knowingly” presented a false claim, or used or made a false record, in violation of Section 3729(a) of the False Claims Act; whether Louisiana’s failure to require the jury to find beyond a reasonable doubt that death is the appropriate punishment violates the Sixth, Eighth, and Fourteenth Amendments; and whether an individual who regains his federal civil rights by operation of federal law has had his civil rights “restored” within the meaning of 18 U.S.C. § 921(a)(20) and therefore may exercise his rights guaranteed by the Second Amendment.

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Event announcement

By on May 24, 2016 at 2:00 pm

On June 2 at 11:45 a.m., Judge Brett Kavanaugh will give the keynote address, “Justice Scalia and Deference,” at a conference with the Center for the Study of the Administrative State. More information about the conference is available here.


Tuesday round-up

By on May 24, 2016 at 9:00 am

Yesterday the Court issued three rulings in argued cases.  Molly Runkle rounded up early coverage and commentary for this blogNPR’s Nina Totenberg had an overview of all three cases.

More coverage of yesterday’s opinion in Foster v. Chatman, holding by a vote of seven to one that the Supreme Court of Georgia’s decision that the defendant failed to show purposeful race discrimination in the selection of his jury was clearly erroneous, comes from Tony Mauro of Supreme Court Brief (subscription or registration required); commentary comes from Kent Scheidegger at Crime and Consequences, Janell Ross for The Washington Post, Steven Mazie in The Economist, and Garrett Epps in The Atlantic. Continue reading »

Posted in Everything Else

Today the Supreme Court issued its opinion in the case of Marvin Green, a former employee of the United States Postal Service who alleges that he was the victim of racial discrimination on the job.  The Court didn’t rule on the merits of Green’s allegations, and it’s not yet clear whether any court will actually reach that question.  But today’s decision allows Green’s lawsuit against the Postal Service to go forward, holding that a lower court was wrong to dismiss it on the ground that Green had not met a procedural requirement for filing suit. Continue reading »

This morning the Court released its opinion in Foster v. Chatman, holding by a vote of seven to one that the Supreme Court of Georgia’s decision that the defendant failed to show purposeful race discrimination in the selection of his jury was clearly erroneous.  Lyle Denniston covered the opinion for this blog, while other early coverage comes from Nina Totenberg of NPR, Pete Williams of NBC News, Ariane de Vogue of CNN, Adam Liptak of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin of The Wall Street Journal, Robert Barnes of The Washington Post, David G. Savage of the Los Angeles Times, Mark Sherman of the Associated Press, Chris Geidner of BuzzFeed, Josh Gerstein of Politico, Debra Cassens Weiss of ABA Journal, Cristian Farias of Huffington Post, Lydia Wheeler of The Hill, and Ed Pilkington of The Guardian.

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Posted in Round-up


The Supreme Court made a new effort on Monday to restrict prosecutors’ power to strike black jurors in a racially sensitive case, but the result was so tightly focused on what happened at just one trial that it was doubtful that the new ruling would do much to end the practice.  What made the difference this time, it appeared, was defense lawyers’ discovery of telltale files obtained from prosecutors years after the trial was over.

That may not happen again, but at least not often.  Even if prosecutors were deliberately trying to keep all blacks from serving on the jury in this specific Georgia murder case, as the Supreme Court found on Monday, they also have contended that they created the files as they were trying to figure out how to deal with race in jury selection under a then-recent Supreme Court ruling.  With that ruling condemning a racial motive, it is doubtful that prosecutors in many cases since then would create such revealing files, with clear markings next to the names of potential black jurors to be stricken from the jury pool.

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Without further clarifying when state legislatures make too much use of race in drawing new election district maps, the Supreme Court on Monday ended Virginia Republican pleas to revive a 2012 plan — no longer in effect — for the state’s eleven congressional districts.  The Court, in a brief opinion in Wittman v. Personhuballah, ruled that none of the remaining GOP challengers had the right to sue because they could not show that they would be harmed politically.

A three-judge federal district court has twice ruled that the 2012 redistricting focused too heavily on racial factors in placing many black voters in the plan for District 3 — the one long represented by the state’s only black member of the House, Rep. Bobby Scott.  When the state legislature could not agree to devise a new plan under court order, the district court adopted one on its own, and that is the one that is being used in this year’s elections for Virginia members of the House.  The Supreme Court in early February refused to block the new map from going into effect for this year, even though the Justices still had the 2012 plan under review.

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We are live-blogging this morning as the Court issues orders and opinions. Join us.

Posted in Live

Monday round-up

By on May 23, 2016 at 6:20 am

More commentary relating to Republican presidential candidate Donald Trump’s list of potential Supreme Court nominees comes from Kenneth Jost, who at Jost on Justice characterized the list as a “sop to conservatives.” The editorial board of The Washington Post also weighs in, describing the list asanother way in which Mr. Trump is damaging the country’s institutional fabric, in this case by further politicizing the judiciary.” Continue reading »

Posted in Round-up
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