At the Constitutional Accountability Center’s Text and History blog, Tom Donnelly provides six reasons to “keep an eye on” next week’s oral arguments in EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation, a challenge to the EPA’s interstate air pollution rule. As Lyle Denniston reported yesterday for this blog, the Court has expanded the oral argument time for the consolidated cases, from sixty to ninety minutes total. Continue reading »
The petition of the day is:
Issue: (1) Whether the Third Circuit is correct in its view that the “single event or occurrence exception” to “mass actions” under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(B)(ii)(I), applies when the record merely “demonstrates circumstances that share some commonality and persist over a period of time” such as forty years of alleged releases by different owners, of different materials by different mechanisms – or the Ninth Circuit is correct in its view that it applies only in “cases involving a single event or occurrence, such as an environmental accident;” and (2) whether the Third Circuit incorrectly assigned the burden with regard to such an exception to the petitioner.
Usually, the logistics of briefing a Supreme Court merits case are simple. There is one petitioner and one respondent, with (sometimes) various amici. The schedule is set by the Court’s rules, and the Clerk’s Office is very helpful in working out extensions if time is available before the case will be argued. Even when there are multiple sets of parties in one case or when the Court consolidates two cases, the usual approach to briefing generally works smoothly.
Things get more complicated when the Court grants review in two consolidated, related cases, but the interests of the respective petitioners and respondents don’t correspond — for example, if the government is the petitioner in one case but the respondent in the other. How should the case be briefed then?
The Supreme Court on Thursday released a revised argument calendar for the current sitting. The Court has expanded from one hour to ninety minutes the schedule for the consolidated cases on interstate air pollution remedies, set for 10 a.m. next Tuesday. The government and other petitioners will have forty-five minutes, state and local respondents twenty minutes, and labor and industry respondents twenty-five minutes. That is the only change in the calendar.
While the Supreme Court historically has afforded considerable deference to the immigration bureaucracy in the interpretation and application of the U.S. immigration laws, it has not blindly deferred to the executive branch. In Judulang v. Holder (2011), for example, the Court unanimously rejected the conclusion of the Board of Immigration Appeals (BIA) that a lawful permanent resident was statutorily ineligible for relief from removal, finding that it “flunked” minimal judicial review. Next week, in Mayorkas v. Cuellar de Osorio, the Court will return to the question of the appropriate deference to be afforded the BIA’s interpretation of the immigration laws. Continue reading »
John Elwood reviews Monday’s relisted cases.
It’s coming up on The Most Wonderful Time of the Year. Not because of the bountiful feasts with loved ones; not because you can get that special gift for Dad, Mom, and Stepmom; not even because the government has finally succeeded in revamping the health-care website. What makes it wonderful is that we’re coming up on the holiest time of the year. I’m talking, of course, of the nearly month-long reprieve from Relist Watch the world enjoys every December and January. Peace on Earth!
An uncharacteristically amenable Court heard argument on Tuesday in Lexmark International, Inc. v. Static Control Components, Inc. Although the case is from the Sixth Circuit, it is not a state-on-top criminal matter. Rather, it is an intellectual property/standing case. Specifically, the Court is asked to define the limits of standing in false advertisements under the Lanham Act.
With Northwest, Inc. v. Ginsberg on Tuesday of this week and Air Wisconsin Airlines (previewed here) next Wednesday, this is a big sitting for air travel at the Court. Unfortunately for the parties, the argument in Northwest shed precious little light on what the Justices will say in this case.
The casearises out of the decision by Northwest Airlines to terminate the frequent-flier membership of Rabbi Binyomin Ginsberg shortly before its merger with Delta. Northwest said it terminated his membership for “abuse,” but Ginsberg claimed that Northwest acted because of the merger. When the Ninth Circuit held that Ginsberg’s complaint was not preempted by the Airline Deregulation Act of 1978 (the “ADA”), the Court granted review.
Yesterday the Court heard oral arguments in United States v. Apel, a case pitting officials at a military base against an anti-war protester whom the military has banned from the area just outside the base designated as a “protest zone.” Lyle Denniston covered the argument for this blog, reporting that the Justices seemed largely uninclined to address the protester’s First Amendment claims; other coverage comes from Nina Totenberg of NPR, who agrees that the Court “was not in the mood for big constitutional questions,” and Jess Bravin of The Wall Street Journal, who suggests that, “even if the government wins the current round, . . . the justices might send the case back to the lower court to consider whether the First Amendment permits Mr. Apel to return to the Highway 1 protest zone.” Ruthann Robson analyzes the oral argument at Constitutional Law Prof Blog, where – after noting that Justice Breyer had “looked at the Google maps” of the air base — she concludes that “it’s doubtful that the Court will render an opinion in Apel destined for First Amendment treatises or casebooks. On the other hand, any opinion will surely be written in the shadow of First Amendment doctrine and theory.” Continue reading »
The petition of the day is:
Issue: Whether the Fourth Circuit correctly interpreted the preemption provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9658, to apply to state statutes of repose in addition to state statutes of limitations.