Two groups of Florida same-sex couples, anticipating a chance to get married in less than three weeks, urged the Supreme Court today not to delay that opportunity.  The Court, they argued, should continue its recent refusal to interfere with lower court rulings that have nullified state bans on same-sex marriage.  Two briefs opposing a request by state officials for more delay are here and here.

As of now, a lower court order is in effect postponing a federal trial judge’s ruling in favor of such marriages until January 5.  The state has an appeal pending at the U.S. Court of Appeals for the Eleventh Circuit, but that court has refused to extend the order even though it has not yet ruled on the validity of Florida’s ban.

This particular dispute thus tests whether the Supreme Court will put off same-sex marriages in a state that is not yet under a federal appeals court decision striking down a state ban and setting a binding precedent for trial courts in the region, to give the appeals court for that area a chance to rule.

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What a Justice says and does not say in public; Justice Ruth Bader Ginsburg’s recent presence in the media; the line in a Justice’s mind between talking law and talking politics; the risk of talking to the media; and what to infer from a Justice’s choice to speak publicly.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.”

Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com.  In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how she began covering the Supreme Court; the tension among the media covering the Court, the Justices’ public presence and access to information; cameras in the Court; how to read the Court and the conflict between legal doctrine and the Court’s institutional position; and the Court’s struggle with questions (legal, institutional, and personal) of identity, especially in light of women on the Court and facing questions of gender.

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The Relist Watch before Christmas

By on Dec 18, 2014 at 10:08 am

John Elwood reviews Monday’s relisted cases, with help from Clement Clarke Moore.

 

‘Twas the last Conference before break, when all through the land;

All the lawyers were waiting, petitions in hand;

Their eyes were trained on SCOTUSblog with care;

In hopes that cert. grants soon would be there.

 

Seven Justices were prepared to read opinions aloud;

(The rest were at Ole Miss, drawing a crowd.)

Ginsburg in her jabot; and I in my suit;

Were thinking of cases that would soon get the boot.

 

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Thursday round-up

By on Dec 18, 2014 at 6:25 am

Although the Court is officially in recess until January, business continues there.  Yesterday the Court turned down Arizona’s application to allow it to deny driver’s licenses to “Dreamers” — young adults who came to this country illegally as children — if they have permits allowing them to have jobs here. Lyle Denniston reported on the case and the Court’s order for this blog; other coverage comes from Howard Fischer of Capitol Media Services (via the Arizona Capitol Times) here and here. Continue reading »

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Petition of the day

By on Dec 17, 2014 at 10:10 pm

The petition of the day is:

14-292

Issue: (1) Whether the former Texas special issues for death penalty sentencing do provide – as the Texas Court of Criminal Appeals held – or do not provide – as the Fifth Circuit has held – an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character, such that failure to provide a separate question violates the Eighth and Fourteenth Amendments under this Court’s jurisprudence in Penry v. Lynaugh and Penry v. Johnson; (2) whether a conviction aided by the prosecution’s failure to produce evidence that contradicted its theory and showed that the evidence it did rely upon and the resulting jury arguments were false violates the Due Process Clauses of the Fifth and Fourteenth Amendments under this Court’s Brady v. Maryland jurisprudence; and (3) whether executing a defendant who has already served more than 30 years on death row while exercising his legal rights in a non-abusive manner serves any penological purpose and amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

 
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Idaho’s governor today asked the Supreme Court to wait to act on new same-sex marriage cases until after officials from his state can file an appeal, early next month.  If the Court accepts the suggestion, that could slow down the process of setting up review of the constitutional dispute during the current Term.

The Idaho ban has been struck down by the U.S. Court of Appeals for the Ninth Circuit, but that court is now considering a motion by Governor C.L. “Butch” Otter to reconsider before the en banc court.  In the new filing at the Supreme Court, the governor said that, if the Ninth Circuit does not grant rehearing within the next few days, state officials will move ahead with a plan to seek Supreme Court review on January 5.

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UPDATING EARLIER POST:  Over the dissents of three Justices, the Supreme Court today rejected Arizona’s request to allow it to deny driver’s licenses to young undocumented immigrants who have been permitted by Obama administration policy to remain in the United States.  In a brief order, the Court refused to block a temporary ruling by the U.S. Court of Appeals for the Ninth Circuit requiring the state to issue driver’s licenses to the so-called “Dreamers” — young adults who came to this country illegally as children — if they have permits allowing them to have jobs here.  Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas said they would have granted the state’s request.  There were no explanations by either the majority or the dissenters.  Arizona remains free to pursue a regular appeal to the Court.

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Five young adults from other countries who have been allowed by the Obama administration to stay in the United States and get jobs told the Supreme Court today that it would be premature for the Justices to rule now on the government’s power to put off deportation of undocumented immigrants.

The young adults, joined by an advocacy group that seeks to protect them, made the plea in urging the Court to turn down a request by Arizona to allow the state at least temporarily to deny them driver’s licenses.

Arizona is one of only two states — Nebraska is the other — that have adopted policies to deny driver’s licenses to young people who entered the country illegally as children but are temporarily allowed to remain under a policy change President Obama and his aides made  two years ago. Continue reading »

 
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The tension between how the media covers the Court and how the Court wants to be seen; understanding the Justices in public; and what might get lost in focusing, however deftly, on high-level legal analysis.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.”

Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com.  In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how she began covering the Supreme Court; the tension among the media covering the Court, the Justices’ public presence and access to information; cameras in the Court; how to read the Court and the conflict between legal doctrine and the Court’s institutional position; and the Court’s struggle with questions (legal, institutional, and personal) of identity, especially in light of women on the Court and facing questions of gender.

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A federal judge in Pittsburgh, in the first court ruling on President Obama’s new policy on undocumented immigrants, ruled on Tuesday that, because the president had no authority to act alone, the policy is unconstitutional.   If that part of the ruling by U.S. District Judge Arthur J. Schwab survives further review in lower courts, the issue could go to the Supreme Court much earlier than expected.

Although the judge flatly declared the November orders by the president and other U.S. officials to be unconstitutional, he did not bar the policy’s continued enforcement and, in fact, set up additional steps he plans to take in a pending case on the alternative view that the policy may actually be valid.

The judge’s highly complex ruling came in a totally unanticipated test case on the policy, involving a Honduran national who has pleaded guilty to the crime of returning to the United States after once being deported as an undocumented immigrant.

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Wednesday round-up

By on Dec 17, 2014 at 6:40 am

Monday’s two decisions in argued cases continue to generate coverage and commentary.  In Heien v. North Carolina, the Court held that a police officer’s reasonable mistake of law can provide the reasonable suspicion that justifies a traffic stop under the Fourth Amendment.   At Hamilton and Griffin on Rights, Leslie Shoebotham suggests that, although the decision’s “expansion of what qualifies as a ‘reasonable mistake’ is understandably an attention-grabbing headline,” its “real impact may be in opening the door more generally to arguments that police mistakes don’t violate the Fourth Amendment.”  At The Economist’s Democracy in America blog, Steven Mazie asks “who is to say how ambiguous the law really is, or how ‘reasonable’ the officer’s mistake might be? This is, as Justice Sotomayor observes in her dissent, an untenable basis for affording the Fourth Amendment a stable, ascertainable meaning.”  And at Crime and Consequences, Kent Scheidegger argues that the Court should “stop carving out individual good-faith ‘exceptions’ to an overall rule of suppression of evidence and instead make ‘bad faith’ a required element of a defendant’s motion to suppress evidence.”  Finally, at Re’s Judicata, Richard Re suggests that Justice Elena Kagan’s concurring opinion, joined by Justice Ruth Bader Ginsburg, “might be an example of ‘aspirational narrowing,’” but he concludes that “[i]t’s less clear that [her] efforts will be successful.” Continue reading »

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