Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- we would not expect orders granting certiorari today.

Deepening the controversy over tax subsidies to help lower-income workers obtain health insurance, a federal trial judge in Oklahoma on Tuesday barred those credits for individuals who shop for coverage on marketplaces run by the federal government, not by a state.

That issue is already awaiting the Supreme Court’s attention, with the federal government due to file there on Friday a defense of the subsidies scheme that has so far helped nearly five million individuals to afford health coverage under the Affordable Care Act.  (That case is King v. Burwell.)

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Tuesday round-up

By on Sep 30, 2014 at 11:47 am

Yesterday the Justices met for the so-called “Long Conference,” at which they considered new petitions for certiorari for the first time since late June.  Once again, news coverage of the Court focuses on the cases slated for consideration at that conference, and in particular the seven petitions arising out of challenges to state bans on same-sex marriage.  Ben Winslow of Fox 13 News in Salt Lake City summarizes the story in Utah, where state officials have asked the Court to review a decision by the Tenth Circuit striking down that state’s ban.  In his Sidebar column for The New York Times, Adam Liptak discusses the same-sex marriage issue in the context of the Court’s tendency to release major opinions late in the Term; he observes that, although “[t]here are lots of open questions about the road the Supreme Court justices will take to a final decision about whether the Constitution guarantees a right to same-sex marriage,  . . . one thing seems clear: The answer will arrive next June.”  And at Slate, Susannah Pollvogt and Catherine Smith urge the Court to consider the “remarkably simple proposition” that, they say, has thus far not been considered by the lower courts:  “Bans against same-sex marriage are unconstitutional as a matter of law because they punish children in an effort to control the conduct of adults.”  Finally, at his Election Law Blog, Rick Hasen discusses the absence of any grants from yesterday’s Long Conference and the possible explanation therefor.

Yesterday’s order by a divided Court blocking early voting in Ohio also garnered headlines.  Lyle Denniston covered the order for this blog.  Other coverage and commentary come from Rick Hasen at his Election Law Blog; Hasen also discussed the Ohio case (among others) in a post on “the voting wars” at Slate. Continue reading »

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Petition of the day

By on Sep 29, 2014 at 10:12 pm

The petition of the day is:

14-29

Issue: (1) Whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the relevant inside information must have been a “significant factor” in the defendant’s decision to buy or sell, or whether – as the court below held – mere “knowing possession” of inside information suffices for a criminal conviction; (2) whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the “fiduciary duty” element must be proved under well-established principles of state law, or whether – as the court below held – courts may define and impose the applicable fiduciary duty as a matter of federal common law; and (3) whether exculpatory testimony given by a witness during a deposition in a closely related federal enforcement proceeding is admissible under Federal Rule of Evidence 804(b) in a subsequent criminal trial when the witness is unavailable, or whether – as the court below held – such testimony may be excluded merely because it was given in a civil rather than criminal proceeding.

 
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UPDATE 6:10 p.m.  Justice Elena Kagan turned down without comment a separate request by Ohio’s legislature for the same kind of order postponing some of the early voting options.  The legislature has been allowed into the controversy only as a “friend of the court,” not as a full party.  Kagan chose to act on that request without referring it to her colleagues.  Meanwhile, Ohio Secretary of State Jon Husted has issued this new directive on when early voting will be allowed.

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With just sixteen hours before polling stations were to open in Ohio, the Supreme Court on Monday afternoon blocked voters from beginning tomorrow to cast their ballots in this year’s general election.  By a vote of five to four, the Justices put on hold a federal judge’s order providing new opportunities for voting before election day, beyond what state leaders wanted.

The order will remain in effect until the Court acts on an appeal by state officials.  If that is denied, then the order lapses.  It is unclear when that scenario will unfold.  The state’s petition has not yet been filed formally.

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UPDATED 2:12 p.m.  The Court’s amended calendar for oral argument in October is here.

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The Supreme Court, apparently finding that little is left of a case that the Justices were to hear on opening day of the new Term next week, dismissed on Monday the case of Public Employees Retirement System v. IndyMac.   That action leaves intact a split among lower courts on the time limits for filing class-action lawsuits claiming false information in the offer or sale of securities.

Lawyers on all sides of the case had suggested, in new briefs last week, that the case could go forward in the Court because there remained claims against one of the underwriting firms sued in the case — Goldman Sachs & Co.  A proposed settlement deal for other claims, against the other underwriters, is now awaiting the reaction of a federal judge in New York City. Continue reading »

On October 8, in Warger v. Shauers, the Court will hear oral arguments on whether, in support of a motion for a new trial, a juror may testify about statements made during deliberations which show that another juror gave misleading answers to questions asked on voir dire.

At issue is the interpretation of Federal Rule Of Evidence 606(b), which generally prohibits testimony of jurors about statements made during deliberations when the testimony is offered in “an inquiry into the validity of a verdict or indictment.” The rule makes exceptions for testimony about “extraneous prejudicial information,” “outside influence,” and clerical mistakes made in entering verdicts. Thus, testimony about statements during deliberations that show a juror’s irrationality, preconceptions, or misunderstanding of the law is banned. Jury trial cannot be made perfect, and the rule’s drafters opted to protect jurors from embarrassment and preserve the stability of verdicts. Continue reading »

 
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Monday round-up

By on Sep 29, 2014 at 9:07 am

Today the Justices will meet to consider petitions for certiorari for the first time since late June.  Much of the coverage of the Court focuses on the cases that they are scheduled to consider today, including the seven petitions involving challenges to state bans on same-sex marriage.  At CNN, Bill Mears summarizes the cases’ paths to the Court, while Tim Holbrook has an op-ed in which he encourages “the Justices [to] open the doors to marriage to all couples, regardless of their sex or gender.”  In an op-ed for The Washington Post, Edwin Meese and Ryan Anderson take a different tack; they urge the Justices to “heed the reasoning” of courts that have upheld such bans.  And at NBC News, Pete Williams has an interview with outgoing Attorney General Eric Holder, who told him that, if review is granted, the federal government “will urge the Supreme Court to uphold state laws granting same-sex couples the right to marry.”

Other petitions before the Court include the case of Jennifer Dize, the widow of a Chesapeake Bay waterman and boat worker who died of a respiratory disease.  As Jessica Gresko reports for the Associated Press, the issue in the case is whether the boat maintenance work that he did counts towards the minimum required to sue as a “seaman” under the Jones Act.  And in USA Today, Richard Wolf has the story of the (now-settled) battle over the rights to superhero characters like Captain America and the Fantastic Four.

As Lyle has reported for this blog (here and here), Ohio has asked the Supreme Court to step into the controversy over its efforts to reduce early voting opportunities, after two lower courts have blocked those plans.  In commentary at Election Law at Moritz, Edward Foley analyzes the arguments made by the plaintiffs in their response.  Continue reading »

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UPDATED Sunday 11:48 a.m.   State officials filed a final brief on Sunday morning, replying to the challengers’ pleas to allow early voting to go ahead on Tuesday.  The state’s reply argued again that the challengers had created the time crunch by moving slowly to respond to changes that the state sought to implement in February.  The new filing also repeated arguments that lower courts had created a sweeping new right to early voting that will have an impact across the nation.  There is no proof, the document asserted, that Ohio’s changes would actually deny anyone the right to vote.  The filing of this document completes the process, thus enabling Justice Elena Kagan or the full Court to act at any time on whether to delay early voting.

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Arguing that early voting is necessary to continue to deal with the “unprecedented disaster” at the polls in Ohio in 2004, several civil rights advocacy groups urged the Supreme Court on Saturday to permit Ohioans to start casting their ballots next Tuesday for this year’s general election.  Allowing that would merely keep in place what the state has been doing for the past four elections, and would not affect any other state, the fifty-four-page brief contended.

Justice Elena Kagan is currently considering, and could share with her colleagues, pleas by state officials and the Ohio legislature to allow the state to cut back early in-person voting from thirty-five to twenty-eight days, to bar voting on most Sundays in the coming weeks, and to eliminate voting in the early evening on any day.   Those are the very opportunities, the advocacy groups said in their response, that tens of thousands of black and low-income voters have been able to use to cast their ballots.

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Petition of the day

By on Sep 26, 2014 at 10:11 pm

The petition of the day is:

13-1504

Issue: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the City can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.

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