The legal issue the Justices will confront on Tuesday when they hear oral argument in Department of Homeland Security v. MacLean is easy enough to describe: When a federal statute bars whistleblowers from making disclosures that are “specifically prohibited by law,” does that bar also apply to disclosures prohibited by otherwise valid agency regulations – or does it only apply to disclosures expressly barred by Acts of Congress? Behind this outwardly straightforward question of statutory interpretation, though, lurk national security considerations on both sides; the government’s case rests largely on its claimed need to broadly protect sensitive security information from unauthorized disclosure, while the underlying whistleblowing highlighted alarming (and since corrected) deficiencies in post-September 11 aviation security.

Inasmuch as the national security undertones of Tuesday’s argument are (and will likely be) impossible to miss, the statute at the heart of the case applies to most government whistleblowers – especially those not in the national security arena. Thus, even if security concerns arise during Tuesday’s argument (and in the Justices’ ultimate disposition of the case), the irony of the case is that the answer the Justices ultimately provide to the statutory question presented will have significant implications for government whistleblowing in general, especially in cases having nothing whatsoever to do with protecting the national defense. Continue reading »

Few procedures at the Supreme Court are more mysterious than the decision to reargue a case. Rearguments are rare among the approximately seventy cases that are argued each Term. Even rarer is any discussion or explanation of the process by the Court or its members, present or past.

Political scientists have attempted to explain why the Court reargues cases, but – unlike many of the Court’s procedures – there is no published rule governing when reargument occurs or what may trigger the process. Continue reading »

Friday round-up

By on Oct 31, 2014 at 7:31 am

Happy Halloween!  Next week the Court resumes oral arguments, starting with Zivotofsky v. Kerry, in which the Court will consider the constitutionality of a federal statute that directs the Secretary of State, upon request, to record the birthplace of a U.S. citizen born in Jerusalem as “Israel.”  The impending argument has drawn a flurry of commentary.  In a post at Lawfare, Jack Goldsmith argues that the Court should rule “that Congress lacked power to enact this bald foreign policy legislation under Article I” of the Constitution, thereby avoiding “the super-hard problem of defining the contours of exclusive presidential power based on the vague and uncertain textual materials in Article II.”  At The Volokh Conspiracy, Eugene Kontorovich responds to Goldsmith’s post, agreeing with his assessment that the Court should avoid the executive power question but contending instead that “the facts established in the case preclude the Art. I holding.”  At Just Security, Marty Lederman reacts to both posts, concluding that the federal government and Goldsmith “probably have the better of the argument here.”  Finally, in another post at Lawfare, Julian Davis Mortenson makes a different point:  “Regardless of how the Supreme Court decides Zivotofsky, it should not invoke the Vesting Clause” – which provides that “[t]he executive power shall be vested in a President of the United States of America” – “to support its decision.” Continue reading »

Posted in Round-up

Petition of the day

By on Oct 30, 2014 at 10:16 pm

The petition of the day is:


Issue: (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

The Supreme Court has long ignored Justice Felix Frankfurter’s warning to stay out of the political thicket. It regularly hears challenges to redistricting cases (not to mention lots of other types of election cases), raising issues from the one-person, one-vote rule to vote dilution under the Voting Rights Act, to racial and partisan gerrymandering claims. The Court’s decision to hear a part of a challenge to Alabama’s state legislative redistricting plan enacted after the 2010 census (in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, set for argument on November 12) brings all of these issues together in a seemingly technical but high-stakes case, showing the artificiality of separating issues of race and party in redistricting, featuring a bold role reversal in political parties’ use of racial gerrymandering claims, and offering a surprising new threat to the constitutionality of the Voting Rights Act. Continue reading »

Thursday round-up

By on Oct 30, 2014 at 8:13 am


  • In the ABA Journal, Mark Walsh previews next week’s oral argument in Yates v. United States, in which the Court will consider the case of a commercial fisherman convicted of violating the anti-shredding provision of the Sarbanes-Oxley Act for the destruction of several undersized fish.
  • In her column for The New York Times, Linda Greenhouse discusses Justice Lewis Powell’s concurring opinion in Plyler v. Doe, a 1981 case in which the Court held that Texas could not exclude undocumented children from the free public education provided to other children. Just as the Court in that case was, in Powell’s view, “appropriately intervening to save the country from a policy demonstrably destructive of the social fabric,” Greenhouse argues that it should have done the same in the recent Texas voter ID case.
  • In The Wall Street Journal, Jess Bravin reports on recent comments by opera buff Justice Ruth Bader Ginsburg reacting to The Death of Klinghoffer, an opera that depicts the 1985 hijacking of a cruise ship by Palestinian terrorists, who shot passenger Leon Klinghoffer – a disabled U.S. citizen who was Jewish – and then pushed him overboard in his wheelchair.
  • At CNN, William Mears previews next week’s oral argument in the Jerusalem passport case Zivotofsky v. Kerry.
  • Constitution Daily reports (and has video) on a recent speech by Justice Samuel Alito about “the enduring legacy of the Bill of Rights and how the Bill has affected other nations.”

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]

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Petition of the day

By on Oct 29, 2014 at 10:15 pm

The petition of the day is:


Issue: Whether the government speech doctrine permits the state of North Carolina to promote its “Choose Life” message through a specialty license plate program over which it exercises complete and effective control without also offering a pro-choice specialty plate.


The connections among liberty, government power, speech, campaign finance, technology, and privacy.

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

In this six-part interview, Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses his background, from his birth in Shanghai, China during World War Two and his early interest in mathematics to teaching presidents and Supreme Court Justices and arguing cases before the Supreme Court; the inspiration and purpose of his latest book, Uncertain Justice: The Roberts Court and the Constitution , written with former student Joshua Matz; and understanding essential, accessible points of the Supreme Court, principles in constitutional law and leading issues of the day — “Obamacare,” racial equality, gay rights, campaign finance, and the relation of privacy and technology.

Posted in Everything Else

A recitation of the facts in Jesinoski v. Countrywide Home Loans suggests a scenario typical of the most fact-bound petition imaginable, bound for prompt denial because of its technicality. A borrower receives a mortgage loan. Among the dozens of papers that the borrower signs at the closing is a document in which the borrower acknowledges that the lender has provided the disclosures required by the Truth in Lending Act (commonly known as TILA). Fast forward to three years later, long after the borrower has received and spent the funds for the loan, when the borrower is facing foreclosure and no longer able to make monthly mortgage payments. At that point, the borrower sends a letter to the lender stating that the lender in fact did not provide the required disclosures and purporting to rescind the entire loan transaction. When the lender ignores the letter, another year passes, and then the borrower files suit to rescind the loan. Continue reading »

Wednesday round-up

By on Oct 29, 2014 at 7:31 am


  • At Greenwire, Jeremy P. Jacobs profiles Peter Keisler, “a go-to guy for industry on Clean Air Act cases at the Supreme Court.”
  • At Hamilton and Griffin on Rights, Joan Biskupic explains why she wrote her newest book, on Justice Sonia Sotomayor and the increased prominence of Hispanics in U.S. politics.
  • In the wake of the recent pre-dawn order issued by the Court in the Texas voter identification case, Tony Mauro of The National Law Journal has an interview with General William Suter, the former clerk of the Court, who describes “a little-known effort by the court in the 1990s to curtail postmidnight motions and orders — a campaign whose impact is still being felt.”
  • At Re’s Judicata, Richard Re previews next week’s oral argument in Yates v. United States, in which the Court will consider the case of a commercial fisherman charged with violating federal anti-obstruction laws after he threw several undersized fish overboard.
  • At the Ogletree Deakins blog, Christina Broxterman and Karen Shriver look at the impact of the Court’s recent orders denying review in seven challenges to state bans on same-sex marriage on employee benefit plans.
  • Jess Bravin of The Wall Street Journal’s Law Blog reports on recent remarks by Justice Ruth Bader Ginsburg, who in a speech to law students at George Washington University indicated that she thought that John Oliver’s recent sketch of the Supreme Court as nine talking dogs was “hilarious.”
  • Also in The Wall Street Journal (subscription required), Jess Bravin reports that Ginsburg told the law students that she too sometimes pulls all-nighters.

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]

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