At its Conference on November 25, 2014, the Court will consider petitions seeking review of issues such as the reviewability of the Secretary of the Interior’s decision to recognize a tribe, the retroactive application of Miller v. Alabama, a good faith belief in the invalidity of a patent as a defense in an infringement suit, and certification of a class action settlement resulting from the Deepwater Horizon oil spill.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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Thursday round-up

By on Nov 20, 2014 at 6:50 am

Briefly:

  • At FiveThirtyEight, Harry Enten explains why “the 2014 Senate elections have made it more difficult for Obama to appoint a Supreme Court justice” and suggests that “[h]is best chance would be to go with a nominee who is a true moderate, or an impeccably qualified, mainstream Democrat.”
  • At ThinkProgress, Ian Millhiser discusses Justice Anthony Kennedy’s opinion for the Court in Arizona v. United States, striking down part of an Arizona immigration law, and argues that the decision “includes language highlighting the ‘broad discretion’ the executive branch enjoys in matters relating to immigration.”
  • At Verdict, Michael Dorf outlines a scenario in which the four Justices who dissented from the Court’s 2012 decision upholding the individual mandate “could reject the statutory challenge” to the availability of tax subsidies for individuals who purchase their health insurance on exchanges established by the federal government, “but nonetheless vote to invalidate the” ACA in King v. Burwell.

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Petition of the day

By on Nov 19, 2014 at 10:15 pm

The petition of the day is:

14-340

Issue: Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.

Rulings on Wednesday by the South Carolina Supreme Court and by a federal judge in Montana moved the campaign to allow same-sex marriage closer to a total of thirty-five states — but the Supreme Court has not yet cleared the way.

As of Wednesday afternoon, the Supreme Court was still considering a request by state officials in South Carolina to delay same-sex marriages in that state, after the U.S. Court of Appeals for the Fourth Circuit had refused a postponement.  If the Justices do not act by noon Thursday, such marriages could begin in the state, because the state supreme court on Wednesday lifted an earlier delay order that had applied throughout the state.  Two federal judges in that state have ruled against the ban.

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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 »

 
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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.

 
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Capture

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.

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Wednesday round-up

By on Nov 19, 2014 at 5:22 am

Briefly:

  • 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.”

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Petition of the day

By on Nov 18, 2014 at 10:10 pm

The petition of the day is:

14-271

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.

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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.

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