Bradley W. Joondeph is the Inez Mabie Distinguished Professor and Associate Dean for Academic Affairs at the Santa Clara University School of Law.

How broad is the states’ power to impose personal income taxes on their own residents? More specifically, what steps does the Constitution require of states, if any, to ensure that such taxes do not result in the multiple taxation of income earned by their residents in other states? That is the crux of the question in Comptroller v. Wynne, scheduled for oral argument on November 12.

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Tuesday round-up

By on Oct 28, 2014 at 6:31 am


  • At The Huffington Post, Zach Carter reports on recent comments by Senator Chuck Schumer (D-N.Y.), who in an interview over the weekend argued that, if Democrats lose their Senate majority in the midterm elections, the Supreme Court could block Democratic policy initiatives for years to come.
  • In The New York Times, Adam Liptak covers the weekend appearance at Yale Law School by Justices Clarence Thomas, Sonia Sotomayor, and Samuel Alito, all of whom graduated from the school.
  • And in his Sidebar column, Liptak discusses the Court’s recent orders in cases involving, for example, same-sex marriage and voter identification, noting that “[j]udges and lawyers who used to have to try to make sense of endless, opaque opinions now have to divine what theSupreme Court’s silence means.”
  • At Balkinization, Brianne Gorod weighs in on King v. Burwell, the challenge to the availability of federal tax subsidies to individuals who purchase health insurance on an exchange operated by the federal government. She contends that, although “[p]eople following these challenges will no doubt be waiting for the Court’s decision with bated breath, . . . there shouldn’t be much suspense.  If the Court follows its usual practices and procedures, it won’t grant review.”
  • At UCLA Law Review’s Discourse, Joshua Teitelbaum analyzes last Term’s decision in Navarette v. California, in which the Court held that a traffic stop prompted by an anonymous but reliable tip to 911 complied with the Fourth Amendment because the officer had reasonable suspicion that the truck’s driver was intoxicated, using probabilistic reasoning.
  • At Hamilton and Griffin on Rights, Leslie Griffin and Marci Hamilton list their “top ten” objections to the regulations promulgated by the Department of Health and Human Services in the wake of last Term’s decision in Burwell v. Hobby Lobby.

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) 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]

Posted in Round-up

Petition of the day

By on Oct 27, 2014 at 10:15 pm

The petition of the day is:


Issue: Whether this Court has “clearly established,” within the meaning of 28 U.S.C. § 2254(d)(1), that where a state appellate court concludes certain pretrial statements should have been excluded from the prosecution’s case under Miranda v. Arizona, the court’s harmless error analysis must ignore the fact that the defendant also took the stand at trial and admitted the conduct involved in the offense.

Posted in Everything Else


Coercion versus a wink and a nudge. What the Supreme Court did in deciding “Obamacare” and why the results are not as surprising as one might think.

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

In this six-part interview, Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses his background, from his birth in Shanghai, China during World War Two and his early interest in mathematics to teaching presidents and Supreme Court Justices and arguing cases before the Supreme Court; the inspiration and purpose of his latest book, Uncertain Justice: The Roberts Court and the Constitution , written with former student Joshua Matz; and understanding essential, accessible points of the Supreme Court, principles in constitutional law and leading issues of the day — “Obamacare,” racial equality, gay rights, campaign finance, and the relation of privacy and technology.

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Robert A. Katzmann - Judge, U.S. Court of Appeals for the Second Circuit of New York

Chief Judge Robert A. Katzmann


The following is a series of questions posed by Ronald Collins on the occasion of the publication of Judging Statutes (Oxford University Press), by Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit.

Welcome, Chief Judge Katzmann.  Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book and for all the attention it has received, including your C-SPAN interview with Brian Lamb, a review essay by retired Justice John Paul Stevens, commentaries by Jeffrey Toobin (The New Yorker) and Norman Ornstein (The Atlantic), and Tony Mauro’s story in The National Law Journal.     

Question: You have long been concerned with the relationship between courts and Congress, this from the perspective of a trained political scientist, academic, and judge. How did you become interested in the subject?

Katzmann: My interest in courts and Congress goes back quite a while, from the time I was very young in my career. In 1984, Judge Frank M. Coffin — then chair of the U.S. Judicial Conference Committee on the Judicial Branch, a committee concerned in part with enhancing inter-branch understanding — asked if I might assist the Committee in developing an agenda that would examine past, present, and future relations between the courts and Congress. I was then doing interdisciplinary work (having a Ph.D. in government from Harvard and a J.D. from Yale) at the Brookings Institution. The opportunity to work with Judge Coffin was irresistible. He was a former legislator, someone I greatly admired as a judge. That is why I was so attracted to the idea of becoming involved with him in matters vital to an independent judiciary. That led to a series of projects, books, and articles over the next fifteen years, while I was at Brookings, Georgetown, and the Governance Institute. Continue reading »


Monday round-up

By on Oct 27, 2014 at 6:42 am

The Supreme Court’s decision not to weigh in on challenges to state bans on same-sex marriage continues to spur coverage and commentary.  In the ABA Journal, Debra Cassens Weiss summarizes a recent interview with President Barack Obama, who – among other things – described the Court’s denial of review as the Court’s best decision during his time in office.  But at Jost on Justice, Kenneth Jost cites the case of a Texas widow denied federal Social Security benefits because the state does not recognize her marriage as “prov[ing] the need for the court to act — sooner, not later.”  Continue reading »

Posted in Round-up

Keeping up with the expanding list of states where same-sex marriages are now being performed, Attorney General Eric Holder announced on Saturday that the federal government now officially recognizes such unions in thirty-two states, plus Washington, D.C.

The statement added six new states to the list where gay and lesbian couples now qualify for a wide range of federal marital benefits, including more favorable tax treatment.  “We are acting as quickly as possible with agencies throughout the government,” Holder said, “to ensure that same-sex married couples in these states receive the fullest array of benefits allowable under federal law.”

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This week at the Court

By on Oct 26, 2014 at 12:01 am

On Friday the Justices will meet for their October 31 Conference. Our list of “Petitions to watch” for that Conference is here. The November sitting begins November 3.


Petition of the day

By on Oct 24, 2014 at 10:10 pm

The petition of the day is:


Issue: (1) Whether and under what circumstances the Eighth Amendment authorizes a district court to impose a sentence less than the statutory mandatory minimum; and (2) whether a criminal defendant’s waiver of appeal rights made in an agreement to resolve a case prohibits an appeal by the government.


Relist Watch

By on Oct 24, 2014 at 12:11 pm

John Elwood finally reviews Monday’s relisted cases.

Under the principle that weather and sports must always be saved until the end of the news to keep weary eyes watching those local ads, I should be burying this lede. But we here at Relist Watch aspire to better things, so we tell you up front: There were between zero and two new relists this week – it’s hard to be sure because the Court hasn’t updated the docket. Given the lack of new cases, we were sorely tempted to just pull th’ ol’ CTRL-C/CTRL-V move (that’s ⌘-C/⌘-V for you hipsters), but we figured that would merely irritate both our readers. Continue reading »

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