October arguments, day by day

By on Jul 14, 2014 at 6:28 pm

The Supreme Court on Monday released the calendar of oral arguments for the sitting that begins October 6 — the first public session of the new Term.  A highlight of this sitting will be the argument on October 7 in Holt v. Hobbs, giving the Court another opportunity to rule on claims of religious freedom.

Following the jump is the day-by-day listing, with a summary of the issues at stake.  Arguments begin each day at 10 a.m.; each case is scheduled for one hour.

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In a sweeping new ruling that both expands and limits the power of U.S. military tribunals set up at Guantanamo Bay to try terrorist war crimes, a federal appeals court in Washington nullified two guilty verdicts of a former close aide to terrorist leader Osama bin Laden, and gave partial support to another verdict but ordered it reviewed further.   The ruling — by the U.S. Court of Appeals for the District of Columbia Circuit — runs to 150 pages in five separate opinions. It can be read here.

The ruling did not apply immediately to the ongoing case against five individuals accused of war crimes for the September 11, 2001, terrorist attacks on U.S. soil, but it could affect the range of charges that may go forward in that case.  The decision dealt instead with the convictions of Ali Hamza Suliman al Bahlul, a Yemeni national who was accused of acting as press secretary and propagandist for bin Laden and the Al Qaeda terrorist network.  (bin Laden was killed by a U.S. military team in Pakistan in May 2011.)

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UPDATED 9:05 p.m.  The state attorney general’s office promptly announced that it will be seeking a postponement from the Supreme Court “in the coming days, to avoid uncertainty.” A statement from the office’s communications chief can be read here.


The U.S. Court of Appeals for the Tenth Circuit set the stage on Friday for a quick return by Utah state officials to the Supreme Court, seeking to delay another federal judge’s ruling in favor of same-sex marriage.  This time, the state’s plea will focus on same-sex couples who were married during a brief window of opportunity last winter, before the Supreme Court stepped into the Utah controversy.  State officials have until July 21 to file such a request with the Justices.

The state’s filing would not at this stage draw the Court into the basic constitutional controversy over whether marriage must be open equally to same-sex couples.  Utah officials plan to take that core question to the Court this summer or early fall.  The immediate issue this time will be whether the Justices will put on hold a judge’s ruling in May requiring Utah to recognize some 1,300 same-sex marriages performed between December 23 and January 6.  That ruling has since been put on hold, and will remain suspended at least until the Supreme Court acts.

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Petition of the day

By on Jul 11, 2014 at 10:05 pm

The petition of the day is:

West Virginia ex rel. U-Haul Co. of West Virginia v. Zakaib

Issue: Whether the West Virginia Supreme Court of Appeals violated the Federal Arbitration Act’s severability rule by refusing to enforce an arbitration clause on the basis of a challenge that was not directed specifically to that clause.

Friday round-up

By on Jul 11, 2014 at 7:29 am

Last week’s decision in Burwell v. Hobby Lobby continues to dominate commentary on the Court.  At Hamilton and Griffin on Rights, Marci Hamilton looks at the fallout from the decision and suggests that the rancor which accompanied it “shines a light” on the flaws in the statute at the heart of the decision, the Religious Freedom Restoration Act.  And in Newsweek, Pema Levy considers the effects that the decision may have on discrimination based on sexual orientation.  Continue reading »

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A bill to undo Hobby Lobby

By on Jul 11, 2014 at 12:01 am

With fewer than a dozen crucial words, a group of U.S. senators and representatives this week proposed what they have called a “legislative fix” to undo the Supreme Court’s June 30 decision in Burwell v. Hobby Lobby.  Here is the key language in the Senate version, bill number S. 2578:  ”Application: Subsection (a) shall apply notwithstanding any other provision of federal law, including Public Law 103-141.”

The bill would modify — but without directly amending — the federal law that was the basis of the Supreme Court’s ruling — that is, the Religious Freedom Restoration Act (officially enacted as Public Law 103-141).  The new measure would have the effect of simply overruling the Hobby Lobby decision.  Identical versions were introduced in the Senate and House on Wednesday.

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Petitions of the day

By on Jul 10, 2014 at 10:05 pm

The petitions of the day are:

Aetna Life Insurance Company v. Kobold

Issue: Whether the Federal Employees Health Benefits Act (FEHBA), which expressly “preempt[s] any State or local law” that would prevent enforcement of “[t]he terms of any contract” under FEHBA that “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits),” preempts state laws precluding carriers that administer FEHBA plans from seeking reimbursement or subrogation pursuant to the terms of FEHBA contracts.

Coventry Health Care of Missouri, Inc. v. Nevils

Issue: Whether the Federal Employees Health Benefits Act (FEHBA), which governs the federal government’s provision of health benefits to millions of federal employees and their dependents, preempts state laws precluding carriers that administer FEHBA plans from seeking subrogation as required by their contracts with the Office of Personnel Management.

UPDATE 1:55 p.m.  Another state trial judge, District Judge Andrew Hartman of Boulder, ruled on Thursday that the Boulder County clerk may continue to issue marriage licenses to same-sex couples, but must notify those couples that “the validity of their marriages” depends upon whether the courts would later uphold the clerk’s power to issue them.  The following post includes a brief reference to the legal controversy over the licenses that have been issued by Boulder County Clerk Hillary Hall.


Joining the lengthening list of courts striking down state bans on same-sex marriage, a state trial judge in Colorado ruled on Wednesday that a state constitutional amendment and laws imposing the ban are unconstitutional.  Adams County District Judge C. Scott Crabtree of Brighton issued a forty-nine-page opinion, and then put his ruling on hold during a likely appeal by state officials.

So far, no state’s prohibition on same-sex marriage has been upheld in any court in the year since the Supreme Court’s decision in United States v. Windsor provided new guidance that judges are interpreting as strong arguments in favor of allowing gays and lesbians to share in a constitutional right to marry.

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A few notes on unanimity

By on Jul 10, 2014 at 10:40 am

Over the past few weeks, there has been a raft of opinion pieces and commentary addressing the Supreme Court’s startling number of unanimous opinions during October Term 2013.  As our Stat Pack shows, there were forty-eight 9-0 or 8-0 decisions during the Term, totaling sixty-six percent of all merits opinions.  Neal Katyal noted that this is the highest percentage of unanimous opinions in any single Term since World War II.

But there may be more to the story.  Some commentators have termed this year’s unanimity “faux-nanimity” for the seemingly high number of cases in which the Justices voted for the same judgment – thereby satisfying the most fundamental requirement for unanimity – while evincing serious disagreement over the legal reasoning used to reach that conclusion. Continue reading »


Thursday round-up

By on Jul 10, 2014 at 9:34 am

Commentary on the Court’s June 30 decision in Burwell v. Hobby Lobby continues with an op-ed in The New York Times from Linda Greenhouse, who contends that, “[t]o grasp the full implications of the . . . Hobby Lobby decision, it helps to read it not in isolation but alongside the court’s other major religion case of the term,” Town of Greece v. Galloway, in which the Court upheld a New York town’s practice of beginning its town council meetings with a prayer.  Ralph Behr weighs in on the case at the South Florida Criminal Defense Blog, observing that “[t]he decision is seen as an end run to, in effect, backdoor reproductive and privacy rights by framing the issue as a question that can be decided under the Religious Freedom Restoration Act of 1993.”  Continue reading »

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