Editor's Note :

Editor's Note :

On Monday at 9:30 a.m., we expect the Court to issue additional orders from the November 24 Conference. We expect one or more opinions in argued cases on Tuesday at 10 a.m.

Pressing the Supreme Court to set a schedule for a ruling in the current Term on the new immigration policy, the Obama administration on Tuesday volunteered to give up some of its filing options and opposed a month-long delay for the reply of the twenty-six states challenging the policy.  Solicitor General Donald B. Verrilli, Jr., outlined the government’s views in a two-page letter.

The states have asked for an extra thirty days, beyond the normal thirty, to answer the government’s appeal defending the policy.  Verilli, however, said the government would only consent to an eight-day extension.  That would mean the states’ brief would be due on December 29.  The consent to that added time would be contingent on the states’ brief actually reaching the Court that day.  The government, Verrilli said, is willing to forfeit its right to file a reply to the states’ opposition.

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If ever a case called for pure and unfiltered judgments about fairness, it is Menominee Indian Tribe v. United States. The specific question before the Court is whether the statute of limitations of the Contract Disputes Act should have been equitably tolled to permit the tribe’s suit against the United States. The government agrees that the doctrine of equitable tolling applies, and the parties even agree (for the most part) on the legal standard: the propriety of tolling depends on both the tribe’s diligence and the extent to which extraordinary circumstances justify the tribe’s delay in filing. The only dispute is whether the reasons for the tribe’s delay justify tolling.

From a purely legal perspective on timeliness, the relevant facts are pedestrian. The case involves “Annual Funding Agreements” between the tribe and the United States for the years 1996 through 1998. The tribe first presented its claims to the government in 2005. Because the date of presentation is more than six years after the claims accrued, the claims are out of time under the Contract Disputes Act.

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The Supreme Court on Tuesday released the schedule of oral arguments for the sitting that begins on Monday, January 11.  The first case to be heard is one of the most significant of the Term: a test of whether non-union members in public jobs should be freed from paying any dues or fees to the union representing their workplace.

The daily list, together with a brief summary of the issues involved, follows the jump.  Arguments are for one hour, and begin at 10 a.m.  None are scheduled for afternoons.

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FURTHER UPDATE Wednesday 5:07 p.m.   The state of Hawaii urged the Court not to block the final stages of the “native Hawaiian” election that is a prelude to forming a federally recognized community like an Indian tribe.  The election is purely a private matter, the state contended, and it does not implicate the Fifteenth Amendment ban on race in determining who may vote.


UPDATE 3:52 p.m.   Justice Kennedy has called for a response to this filing; it is due tomorrow, Wednesday, by 5 p.m.   The American Civil Rights Union is asking permission to file an amicus brief to support this application.


A group of Hawiians, some of whom won’t be able to vote in a special election that ends on November 30 that is a prelude to recognizing a new Indian-like tribe including many residents, asked the Supreme Court to temporarily stop the completion of that election until their challenge can be decided.  In an application filed Thursday night, the challengers argued that the election is based along strict racial lines, and is thus unconstitutional under the Fifteenth Amendment.  UPDATE: The appendix, a large file, is here.

The election — favored by the state and endorsed by the federal Department of the Interior — will be limited to a voter roll made up of people who can qualify as “native Hawaiians.”  The election will choose delegates to a convention to write a constitution for what would be a new government entity, similar to a traditional Indian tribe. The aim is to give those who qualify a right of “self-determination.”

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On November 30, the Court will hear oral arguments in the case of Marvin Green, a former U.S. Postal Service employee. Green claims that he was the victim of racial discrimination, and that the Postal Service retaliated against him when he complained about that discrimination. That retaliation, Green says, resulted in what lawyers call a “constructive discharge”: his supervisors made his working conditions so intolerable that he was left with no other choice than to resign. To file a lawsuit against the federal government, Green must comply with a regulation that requires federal employees who allege that they have been discriminated against to contact an equal employment opportunity (EEO) counselor within forty-five days of “the date of the matter alleged to be discriminatory.” The dispute before the Justices next week centers on what events will start that forty-five-day clock running.

In 2008, Green – who was then serving as the postmaster for Englewood, Colorado, in suburban Denver – applied for a promotion, to the same position in nearby Boulder.  When he did not receive the promotion, Green complained to postal officials that the rejection was based on his race.

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Goldstein & Russell, P.C., is seeking to hire an associate attorney to join our four-lawyer Supreme Court and appellate litigation practice in Bethesda, Maryland. We are looking for somebody who is ready and eager to assume a lot of responsibility, including producing first drafts of briefs for the Supreme Court and the courts of appeals, and organizing and carrying out legal research projects.

Here’s our pitch:

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Posted in Featured

Tuesday round-up

By on Nov 24, 2015 at 5:38 am


  • At Hamilton and Griffin on Rights, Susan-Mary Grant explains “Why I Wrote This Book”: her biography of Oliver Wendell Holmes, which she describes as “part of a series designed, in part, to ‘show the impact everyday people can have on the course of history,’ [and] was actually written to try to assess what impact the course of history might have on an everyday individual.”
  • At E&E News’s Greenwire, Robin Bravender profiles John Sturgeon, an “Alaskan moose hunter [who] is hoping the U.S. Supreme Court will let him bring his hovercraft out of retirement.”
  • A cartoon at xkcd has “breaking news” about the Court – including a hidden message, which you can see when your mouse hovers about the cartoon.
  • The Petrie-Flom Center’s Bill of Health Blog discusses an amicus brief filed in the case of a U.S. Air Force officer and her baby, who are seeking “legal remedies for obstetric malpractice by military doctors that left the baby with severe brain damage.”
  • A post at CrimProf Blog discusses an article on constitutional retroactivity – at issue in the case of Montgomery v. Louisiana, in which the Court is considering whether its 2012 decision barring mandatory life-without-parole sentences for juveniles convicted of murder applies to inmates whose convictions became final before the decision.

If you have or know of a recent (published in the last two or three days) news 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] scotusblog.com.

Posted in Round-up

Petition of the day

By on Nov 23, 2015 at 11:00 pm

The petition of the day is:


Issue: Whether the district court has jurisdiction to expunge an individual’s criminal record on equitable grounds.


Lawyers for the twenty-six states that challenged President Barack Obama’s broad policy to delay the deportation of millions of undocumented immigrants asked the Supreme Court on Monday to give them more time to answer the government’s appeal.  Delay has the potential to slow down a case that U.S. officials very much want decided during the Court’s current Term.

Texas Solicitor General Scott A. Keller wrote to the Court asking permission to file the states’ response on January 20, thirty days after it would have been due under the normal schedule.  Keller cited a long list of other legal tasks faced by lawyers in the case, and he suggested that the government had not taken the steps that it could have to have moved the case along at earlier stages.

Justice Department spokesman Patrick Rodenbush said “we intend to oppose Texas’s request for a full 30-day extension,” adding that the government believes the case “should be considered expeditiously.”  His remark at least implied that the government might suggest something less than a thirty-day extension.

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The fight in the Supreme Court over public employee unions and the First Amendment is expected to be one of the most divisive of the Term. That was true even before the state of Illinois weighed in on both sides of the case

Call it a sideshow, or a play within the play. Whatever the label, it is unusual for the Court to find itself, as it does now, in the middle of a dispute between state leaders over which official’s view from Illinois should count – the governor’s or the attorney general’s.

The dispute offers important insights into the intersection between state law and politics, as well as advocacy and decision-making in the Supreme Court.

The unusual circumstance has developed in the case of Friedrichs v. California Teachers Association. The issue in the case is whether a public employee union may charge workers who do not want to join a fee to cover the cost of collective bargaining and related activities that may benefit all workers. The Court must decide whether the required payment in lieu of union dues, called an agency fee (and also known as a “fair share” fee), violates the free speech rights of workers who do not want to be associated with the union’s activities.

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