The Supreme Court, taking quick action on two states’ constitutional challenge to Colorado’s new marijuana sales policy, asked the federal government on Monday for its reaction to that case (144 Original, Nebraska and Oklahoma v. Colorado).  Colorado has argued that the case — filed directly in the Court rather than in a lower court first — should not go forward at all without the federal government taking part as a crucial party.

The order on that case came as the Justices granted review of one new controversy: the Federal Energy Regulatory Commission’s plea to revive its policy — adopted in 2011 but struck down since by a federal appeals court — of arranging payments to users of electricity to induce them to cut their consumption, especially during peak demand periods.  The Court c0nsolidated two cases for an hour of hearing next Term: FERC v. Electric Power Supply Association, and EnerNOC Inc. v. Electric Power Supply Association. Justice Samuel A. Alito, Jr., is not taking part, probably because he has an investment in the energy industry.

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By now anyone who would be reading this will know that last week the Supreme Court decided that the First Amendment’s speech protections are weaker in the context of judicial elections than in other kinds. In effect, the five-Justice majority found that a state’s interest in preserving public confidence in its judiciary extends beyond preventing the “appearance of corruption” that’s at play in the context of candidates for legislative or executive office. Accordingly, states – or, as in this case, state bar associations – can limit political speech that aims to raise money for judicial candidates.

I think the Court got it wrong: while I don’t like the idea of judicial elections – though they’re better than any alternative but the federal model – if you’re gonna have em, the Constitution doesn’t allow you to pick and choose between the salubrious and unseemly parts of democracy. But at this point I don’t have any novel analysis beyond the dissenting opinions and the coverage provided in this symposium.

Accordingly, rather than go over well-trodden ground, I’ll pick out an excerpt from each opinion that epitomizes the point being made and offer a brief comment. Continue reading »

We are live-blogging this morning as the Court issues orders and opinions. Join us. 

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Monday round-up

By on May 4, 2015 at 7:29 am

Commentary on Tuesday’s oral arguments in the challenges to state bans on same-sex marriage continues, coming from Ryan Anderson in The Daily Signal, from Roger Clegg at the National Review’s Bench Memos (along with a follow-up post), from Kenneth Jost at Jost on Justice, and from Dave Oedel in the Macon Monitor.  And in The Wall Street Journal, Jess Bravin talks to the Supreme Court law clerk who, in 1972, wrote a memo recommending that the Court deny a petition filed by two Minnesota men who wanted to get married.

At Federal Regulations Advisor, Leland Beck discusses last week’s cert. grant in Spokeo, Inc. v. Robins, in which the Court will consider standing based on a violation of a statute for a plaintiff who has not suffered a concrete harm.  And at Lawfare, Ingrid Wuerth discusses the possible link between Spokeo and national security and foreign relations law, including the Court’s anticipated decision in Zivotofsky v. Kerry, the Jerusalem passport case. Continue reading »

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This week at the Court

By on May 3, 2015 at 12:01 am

On Monday the Court issued orders from its May 1 Conference, which Lyle reported on.  The Court also issued one decision: Bullard v. Blue Hills Bank.

 
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Petition of the day

By on May 1, 2015 at 10:22 pm

The petition of the day is:

14-894
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether the Federal Deposit Insurance Act preempts the application of state interest rate limitations to loans that were underwritten and originated by a state-chartered bank, when a non-bank acquires a predominant economic interest in the loans.

Julie Goldscheid is a Professor at CUNY School of Law.

On Wednesday, the Court issued its unanimous decision, written by Justice Elena Kagan, in Mach Mining, L.L.C. v. Equal Employment Opportunity Commission. As discussed in more detail in my argument preview and analysis, the case raised the question whether and to what extent the EEOC’s attempt to conciliate complaints of discrimination between claimants and employers is subject to judicial review. Consistent with the Justices’ critical questioning of both sides at oral argument, the Court declined to adopt the position either side proposed. Instead, the Court issued what might be seen as a compromise position, one the Court itself deemed “manageable.” It rejected the government’s position that no review was required, but defined the scope of review as “limited.”

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This week’s arguments

By on May 1, 2015 at 1:44 pm

Oyez has posted audio and transcripts from this week’s oral arguments.

The Court heard arguments this week in:

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At its Conference on May 1, 2015, the Court will consider petitions seeking review of issues such as pretrial restraint of a criminal defendant’s untainted assets under the Fifth and Sixth Amendments, and preemption of California’s meal and rest break laws.

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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