Petition of the day

By on Jul 30, 2014 at 10:19 pm

The petition of the day is:

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
13-1371

Issue: (1) Whether disparate-impact claims are cognizable under the Fair Housing Act; and (2) if disparate-impact claims are cognizable under the Fair Housing Act, what standards and burdens of proof should apply.

 

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What civil liberties challenges we face next, the importance of Edward Snowden, the “newness” of technology and thinking about civil liberties in a climate of fear, and the qualities a Supreme Court Justice will need.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

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Lawyers for Abigail Fisher, who has been pursuing a lengthy court challenge to the use of race in admitting students to the University of Texas in Austin, on Tuesday asked the full U.S. Court of Appeals for the Fifth Circuit to reconsider a new decision upholding the policy.  En banc review is necessary, the new petition argued, because the majority of the three-judge panel disobeyed orders from the Supreme Court to rethink a prior ruling allowing some use of race.

Last year, the Supreme Court returned the case to the Fifth Circuit, with instruction to apply a new and more restrictive analysis to the part of the Texas admissions plan that relies in part upon the applying students’ race to fill about one-fifth of each freshman class.  Earlier this month, the panel upheld the plan for the second time, finding that the university had again made its case.

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Petition of the day

By on Jul 29, 2014 at 10:11 pm

The petition of the day is:

WorldCom, Inc. v. Internal Revenue Service
13-1269

Issue: Whether, contrary to the Federal Circuit’s decision in USA Choice Internet Services, LLC v. United States, the Internal Revenue Service can tax as “local telephone service” under 26 U.S.C. § 4251 the purchase of data services that do not enable the purchaser to make or receive telephone calls.

In a ruling that is likely to mean that the only abortion clinic still operating in Mississippi will not have to close, the U.S. Court of Appeals for the Fifth Circuit ruled on Tuesday that a two-year-old state law regulating clinics cannot be enforced against that facility in the city of Jackson.  The ruling, dividing the panel two to one, is here.

The ruling clearly limits, but does not totally bar, a state’s attempt to shift the practical availability of abortion services to its neighboring states.  Mississippi officials had argued that, even without a clinic inside the state, women seeking abortions could get that service by traveling to Alabama, Lousiana, or Tennessee, within only a few hours’ drive.

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Ruling that the federal health care law’s mandate to buy health insurance is a law about a tax but not about raising government revenue, the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday rejected a new constitutional challenge to that key part of the Affordable Care Act.  The three-judge panel’s decision in Sissel v. Department of Health & Human Services can be read here.

Because the mandate was not designed primarily to bring in money to the Treasury, the court of appeals concluded, it was not a revenue measure that, under the Constitution, must have its legislative start in the House of Representatives.  The decision also rejected a renewed claim that the individual mandate was invalid because it exceeded Congress’s power under the Constitution — a variation of a claim that the Supreme Court turned aside two years ago.

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Tuesday round-up

By on Jul 29, 2014 at 11:28 am

Some coverage of the Court focuses on recent decisions by the courts of appeals striking down state bans on same-sex marriage and the likelihood that the Supreme Court will take up the issue.  (Because the round-up only focuses on news relating to the Court, here and elsewhere we do not include coverage of issues such as same-sex marriage, the death penalty, and the challenges to the Affordable Care Act that are not focused primarily on the Supreme Court.)  In The New York Times, Adam Liptak looks at a concurring opinion in the Tenth Circuit, in which Judge Jerome Holmes indicated that “animus toward gay people had played no role in the ban” that the court of appeals was striking down; that statement, Liptak suggests, “may foreshadow a problem for gay rights advocates at the Supreme Court.”  Continue reading »

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Petition of the day

By on Jul 28, 2014 at 10:11 pm

The petition of the day is:

Ashley Furniture Industries, Inc. v. United States
13-1367
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioners in this case.

Issue: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the government must prove that non-discriminatory measures would fail to satisfy the government’s interests.

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Arguing before the Supreme Court, watching United States v. Windsor play out, the emergence of procedural barriers to courts, how the Court has changed since Chief Justice Warren E. Burger, and how to talk about the Court.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

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UPDATE 6:10 p.m.  The attorney general of North Carolina said at a news conference following the ruling discussed below that his office would no longer defend his state’s ban on same-sex marriage, conceding that the Fourth Circuit decision had taken away all of the arguments that could be made for the ban.  However, in another state in the Fourth Circuit, South Carolina, the attorney general said his office would continue the defense of that state’s ban.

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Continuing the year-long, so far uninterrupted trend of court rulings against states’ bans of same-sex marriage, the U.S. Court of Appeals for the Fourth Circuit on Monday nullified the Virginia prohibition; the panel divided two to one.  This was the second federal appeals court to add its ruling to a lengthy string of district court and state court decisions reaching the same result.

Meanwhile, in Florida, a gay couple sought to move a test case directly to the state supreme court, bypassing a middle-level appeals court.  Their lawyers argued that “there is a need to bring finality to this issue on a statewide basis.” Continue reading »

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