Relist Watch

By on May 1, 2015 at 12:19 pm

John Elwood reviews Monday’s relisted cases.

We were as amazed as everyone by news accounts of SCOTUS fans who camped out over the weekend waiting for the orders needed to figure out the new relists. For those with a little more patience (or without six large to spare), we present this year’s Relist Derby betting guide. Like any good handicapper, we list every petition in the running then crow about it when one of our upstart wild guesses pans out. Hope you’ve eaten your Frosted Flakes; this is going to be a long one. There are a huge number of new relists this week. Continue reading »



“I’m expecting a decision that is either all or nothing. And, I expect that the Court will rule that there is a constitutional right that protects same-sex couples’ right to marry.”

Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and author most recently of Marriage Equality on Trial, discusses his impressions of the April 28 oral arguments in Obergefell v. Hodges. Yoshino describes his sense of the Court from the arguments; the major legal arguments made and the relevance of changing rationales opposing same-sex marriage; the question of what level of legal scrutiny the Court may apply; the importance of children to Justices’ thinking about same-sex marriages; what happens next; and what questions from Chief Justice John G. Roberts, Jr., about discrimination based on gender rather than sexual orientation might mean.

Posted in Everything Else

Friday round-up

By on May 1, 2015 at 7:25 am

On Wednesday, the Court heard oral arguments in Glossip v. Gross, the challenge to Oklahoma’s lethal injection protocol.  I covered the oral argument for this blog in Plain English, with other coverage coming from David Savage of the Los Angeles Times.  And Sean Murphy of the Associated Press (via AOL News) reports that the manufacturer of the drug at the heart of the case has asked Oklahoma to “return any supplies it may have obtained and not to use its products to execute prisoners.”  Commentary comes from Eric Berger, who in an op-ed at CNN argues that the states’ secrecy about their lethal injection protocols “is crucial to the Eighth Amendment values at issue in the case.” Continue reading »

Posted in Round-up

Petition of the day

By on Apr 30, 2015 at 10:24 pm

The petition of the day is:


Issue: (1) Whether the Ninth Circuit erred in holding, contrary to this Court's decision in Demore v. Kim, that under United States v. Salerno, a denial of bail is permissible “only” after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail such as Arizona's Proposition 100 and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states (and perhaps even calling into question categorical bans on bail in capital cases that exist in an additional twenty-two states); (2) whether, when adopting a categorical ban on bail for illegal aliens charged with serious felonies, a state may rely on logical assumptions, testimonial evidence of front-line prosecutors, and other anecdotal evidence that is in conformity with the empirical evidence of heightened flight risk by those unlawfully present in this country contained in studies conducted elsewhere, similar to what this Court has approved in analogous contexts, see City of Renton v. Playtime Theaters, Inc., or whether the state must conduct its own empirical analysis that is both jurisdiction- and category-specific in order to meet the requirements of Due Process; and (3) whether the Ninth Circuit erred in holding that Proposition 100 was facially unconstitutional, contrary to Salerno's requirement that a statute is facially invalid only if “no set of circumstances exists under which the Act would be valid,” because among those categorically denied bail by Arizona’s Proposition, 100 are individuals charged with capital crimes, whom the Ninth Circuit recognized could categorically be denied bail.

First, there was hanging.  Then there was the electric chair, or in some places the gas chamber and the firing squad.  More recently, many states and the federal government have relied on lethal injection – administering a fatal dose of drugs – to carry out executions.  The switch to lethal injections came in no small part because they were regarded as more humane, for both the condemned inmate and the witnesses to the execution:  the prisoner could simply drift off, as if he were sleeping.

In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly.  But that didn’t end the debate, particularly after several well-publicized botched executions.   And so yesterday the Court heard oral arguments in a new challenge, this time to Oklahoma’s lethal injection procedures.  After over an hour of often-heated debate, the Court’s more conservative Justices seemed like they could be poised to rule once again in favor of the state, in the hope of ending what they regard as a “guerrilla war” against the death penalty itself.  Let’s talk about yesterday’s hearing in Glossip v. Gross in Plain English. Continue reading »

The Supreme Court’s decision in Williams-Yulee v. Florida Bar to uphold the state’s solicitation law comes as a surprise. Based on the Court’s recent rulings in several campaign finance cases, many scholars anticipated that the Court would find Florida’s solicitation law to be unconstitutional. The Court’s opinion in Republican Party of Minnesota v. White (2002), which declared that announce clauses violate a judicial candidate’s First Amendment rights, was more reason to anticipate the Court ruling in favor of Williams-Yulee.

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From the earliest days of the Republic, Americans have displayed an ambivalent attitude toward judges. On one hand, we regard the judicial branch as performing a function distinct from the political branches, calling for the exercise of judgment removed both from popular opinion and from the political-moral views of the individual judge. This view of what we expect from judges is reflected in the lifetime tenure granted to federal judges by the national Constitution, and in the way we sometimes talk about wanting judges who “apply” rather than “make” the law. Chief Justice John Roberts’s insistence at his confirmation hearing that the role of a Supreme Court Justice is similar to that of a referee calling “balls” and “strikes” is an extreme example of that rhetoric.

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In itself, the Supreme Court’s decision in Williams-Yulee v. The Florida Bar probably will have limited effects. The Court’s acceptance of state rules that prohibit personal solicitation of campaign contributions by candidates for judgeships is unlikely to enhance public confidence in the impartiality of judges much, if at all. Nor is that acceptance likely to inhibit fundraising by judicial candidates to any great degree. For that matter, the decision’s impact on the scope of free speech seems minimal. Yet the Court’s decision has implications for other issues concerning the regulation of elections, and those implications probably help to account for the close vote on the case. With the decisive exception of Chief Justice John Roberts, who wrote the Court’s opinion, the five-to-four vote was along ideological lines — liberals voting to uphold the Florida rule, conservatives voting to strike it down. Continue reading »

Yesterday’s decision in Williams-Yulee v. Florida Bar was the self-described “rare” case in which a campaign finance speech restriction survived strict scrutiny. It was also the exceedingly rare case in which the Chief Justice joined the more liberal wing of the Court to uphold a campaign finance restriction. Coming down just one day after the entire nation focused on the same-sex marriage arguments at the Court, and while the Court presumably struggles to craft an opinion in the latest challenge to Obamacare, one cannot help but feel that “public confidence in the integrity of the judiciary”— the justification upon which the Court upheld Florida’s law — weighs heavily on the mind of the Chief Justice at the moment.

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After Tuesday’s marathon session in the marriage cases and Wednesday’s first (and tense) argument in Glossip, one can understand if the Justices’ attention was focused elsewhere when WilmerHale partner Mark Fleming stepped to the podium representing the petitioner in Mata v. Lynch. After all, as we noted in our argument preview, the government had already conceded that the Fifth Circuit was on the wrong end of a ten-to-one circuit split on the hypertechnical question presented: “Whether [it] erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel.” Moreover, the only lawyer defending the decision below was Beck Redden LLP associate William Peterson — whom the Court appointed as an amicus to do exactly that. So it was that, when Fleming concluded his opening remarks by suggesting to the Justices that there is a “short way” to decide this case, Justice Anthony Kennedy replied that Fleming “know[s] the way to our hearts.” Continue reading »

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