Relist Watch

By on Nov 19, 2014 at 3:58 pm

John Elwood reviews Monday’s relisted cases.

With what’s left of Thanksgiving coming up, we are obligated as denizens of the Internet to do a post on things we’re thankful for. So here we go. We are thankful that the Court’s no-longer-new relisting practice has made this feature marginally more relevant (less irrelevant?). We are thankful that Ryan v. Hurles is back to provide us with one easy joke every week. We are thankful that the Internet never runs out of cute animals. But most of all, we are thankful for (both) our readers. Thanks, Mom! Thanks, Aunt Edna! Continue reading »


The Supreme Court on Wednesday named Ralph I. Lancaster, Jr., of Portland, Maine, as the special master to review and propose a ruling to the Court in an original case, Florida v. Georgia.  The appointment order is here.   He has served as a special master in prior cases at the Court.

The Court on November 4 gave Florida permission to sue Georgia, directly in the Supreme Court, in a long-running dispute between the two states over their rights to water flowing from rivers in Georgia into Florida’s Apalachicola River.  It usually takes several years for such cases to develop, under the control of a special master.   The special master does not have the authority to rule, but only to recommend outcomes to the Justices.



From Yale to the NAACP Legal Defense Fund to legal academe; the value and relation of teaching in class and arguing in court; and a focus on employment law cases.

“Just the way they say, ‘Battle plans never survive contact with the enemy,’ oral argument plans never survive contact with the Court.”

In this six-part interview, Eric Schnapper — Supreme Court advocate and holder of the Betts, Patterson & Mines Professorship in Trial Advocacy at the University of Washington School of Law — discusses his background, from Yale Law School to a twenty-five-year career at the NAACAP Legal Defense Fund to legal academe; how Supreme Court advocacy differs from other legal advocacy; the importance of legal briefs and their relation to oral argument; what one can and cannot prepare for in oral argument; and stories and what one learns from a long career as a Supreme Court advocate.

Posted in Everything Else

Wednesday round-up

By on Nov 19, 2014 at 5:22 am


  • In The National Law Journal (subscription or registration required), Tony Mauro reports on remarks by Justice Sonia Sotomayor during her recent appearance with Justices Clarence Thomas and Samuel Alito at Yale Law School; Justice Sotomayor told the audience that “she’d like to preside over trials again when she retires.”
  • In his column for The Economist’s Democracy in America blog, Steven Mazie discusses the Justices and empathy, and the prospect that their “perspectives are too often hindered by the fact that ‘the pool of those with whom they unavoidably identify is so dangerously small and privileged’.”
  • At FiveThirtyEightPolitics, Oliver Roeder reports on efforts to predict the outcome of Supreme Court decisions and explains why it makes “a certain amount of sense that the best Supreme Court predictor in the world should be some random guy in Queens.”
  • At the Election Law Blog, Justin Levitt analyzes last week’s oral argument in the Alabama redistricting cases, focusing on “the rationale behind Alabama’s last state legislative redistricting plan.”
  • Richard Re of Re’s Judicata continues his discussion of circuit precedent and “clearly established law,” this time with a focus on Monday’s summary reversal in Glebe v. Frost.
  • In The New Republic, Simon Lazarus argues that, in the debate over the availability of tax subsidies for individuals who purchase their health insurance from a marketplace operated by the federal government – the question at issue in King v. Burwell – the ACA’s supporters “are inadvertently recycling their opponents’ misleading talking points. Most common is the idea that the law contains a ‘glitch’ or ‘drafting error.’”
  • In The Wall Street Journal (subscription required), Michael Greve reviews Overruled: The Long War for Control Over the U.S. Supreme Court, by Damon Root.
  • Newsmax reports that Justice Ruth Bader Ginsburg was not pleased by recent calls for her to resign to allow the president to appoint her successor.
  • Howard Fischer of Capitol Media Services (via the Arizona Capitol Times) previews the oral arguments in Reed v. Town of Gilbert, in which an Arizona town “is asking the U.S. Supreme Court to quash a bid by a tiny religious congregation to be able to post and leave up year round its signs directing people to its worship services.”

Continue reading »

Posted in Round-up

Petition of the day

By on Nov 18, 2014 at 10:10 pm

The petition of the day is:


Issue: Whether a reviewing court may presume that a trial judge acted “vindictively” in giving a defendant a higher sentence after resentencing, when no higher court had vacated the trial judge’s original sentence.

UPDATED Tuesday 7:52 p.m.   The state filed its application for postponement, saying that when — as the state expects — the Court grants review of the same-sex marriage question, it should also take on the South Carolina case, to decide whether federal courts are barred from ruling on “domestic relations” disputes.  This marks the first time that state officials have raised that issue before the Supreme Court; it has been advanced in lower courts, but so far unsuccessfully.   The state used sixteen of the twenty-one pages in its application to argue that point, including assertions that both Baker v. Nelson in 1972 and last year’s decision in United States v. Windsor — two precedents directly at issue in the same-sex marriage controversy — were based on that theory. The application, docketed as 14A533, can be read here.


South Carolina officials were preparing on Tuesday to ask the Supreme Court to delay same-sex marriages in the state while they appeal the issue to a federal appeals court.  They had told the U.S. Court of Appeals for the Fourth Circuit that they would make such a request if the Fourth Circuit refused a delay; the Fourth Circuit did so on Tuesday afternoon, in a brief order.

So far, the Supreme Court has refused to grant review of any of the recent lower court decisions striking down same-sex marriages, and it has also refused to delay those rulings.  If the pattern holds in the South Carolina case, that would make it the thirty-fourth state in which same-sex couples could begin to seek marriage licenses.

Continue reading »


One of the Supreme Court’s free speech cases that still divides judges deeply on its meaning — the 1985 ruling in Zauderer v. Office of Disciplinary Counsel — may need some updating.  A highly unusual order issued Tuesday by a federal appeals court — granting rehearing of a decision that has already been overruled — suggests that the Justices probably need to reopen Zauderer and the question of the government’s power to order someone to disclose information that the public may need or find useful.  They may soon get the chance.

Zauderer was a First Amendment case about requiring private attorneys to tell their clients that they might have to pay some added costs if they lost their case.  On Tuesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed to reconsider a case about requiring U.S. businesses to disclose whether they are selling products that may exploit the human misery of the civil war in the Congo.

Continue reading »


451px-Abraham_Lincoln_head_on_shoulders_needlepointOn November 13, Justice Elena Kagan hosted the Supreme Court Historical Society’s fourth and final 2014 Leon Silverman lecture. Professor Lucas Morel of Washington and Lee University was the lecturer.

“My topic this evening, President Lincoln, the Supreme Court, and the Civil War, is pretty broad,” Morel began by way of explaining that he would not be discussing some of the old chestnuts traditionally encompassed by that category, such as Ex parte Merryman, and Lincoln’s suspension of habeas corpus, or the Prize Cases, and his blockade of the Southern ports. Instead, Morel concentrated on Lincoln’s sense of justice, particularly as reflected in what Morel considers to be Lincoln’s greatest speech (“It’s not Gettysburg!”): his second inaugural address. Continue reading »

Posted in Everything Else

Tuesday round-up

By on Nov 18, 2014 at 5:42 am

Yesterday the Court issued orders from its November 14 Conference.  It added one new argument to its docket for the Term by granting review in, and immediately consolidating, two cases involving bankruptcy and “underwater” mortgages:  Bank of America v. Caulkett and Bank of America v. Toledo-Cardona.  Lyle Denniston covered yesterday’s orders for this blog; other coverage comes from Jaclyn Belczyk of JURIST.    Continue reading »


Petition of the day

By on Nov 17, 2014 at 10:16 pm

The petition of the day is:


Issue: Whether, as the Ninth Circuit held, in open and admitted conflict with other courts of appeals, a district court may exclude expert testimony as unreliable only when it is based on a “faulty methodology or theory,” or whether, as the Third Circuit and other circuits have held, “any step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible.”

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