Editor's Note :

Editor's Note :

At 9:30 a.m. on Monday we expect additional orders from the Court's November 25 Conference. On Tuesday, December 2, we expect one or more opinions in argued cases; we will begin live blogging shortly before 10:00 a.m.

Petition of the day

By on Nov 20, 2014 at 10:15 pm

The petition of the day is:


Issue: Whether, when a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, undistributed funds held by the Chapter 13 trustee are refunded to the debtor (as the Third Circuit held in In re Michael), or distributed to creditors (as the Fifth Circuit held below).

UPDATED Monday 1:18 p.m.   This petition before judgment has now been docketed as 14-596. 


Lawyers for seven same-sex couples in Louisiana — some married, some seeking to marry — asked the Supreme Court on Thursday to review the case before it is decided in a federal appeals court.  The case, the lawyers argued, would widen the scope of the Court’s consideration of the constitutional controversy.  The new petition is here; it has not yet been formally docketed.

There is no need, the document argued, for the Court to await “further percolation of the issue in the courts of appeal.”   There is now a “head-on split” among federal appeals courts, so it “would serve little utility” for the Justices to let the Louisiana case unfold in the U.S. Court of Appeals for the Fifth Circuit, where the case is now pending; a hearing has been set in the appeals court for January 9.

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With two Justices dissenting, the Supreme Court on Thursday refused to delay same-sex marriages in South Carolina, leaving intact a federal judge’s order that goes into effect at noon and strikes down the state’s ban.  Neither the Court nor the dissenters gave any explanation.

The order continued the Court’s pattern in recent weeks of refusing to delay lower-court orders nullifying state bans on same-sex marriages, at least when a federal appeals court had also refused to issue a postponement.  Justices Antonin Scalia and Clarence Thomas dissented Thursday, as they had previously.

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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, and a good faith belief in the invalidity of a patent as a defense in an infringement suit.

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


  • 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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Posted in Round-up

Petition of the day

By on Nov 19, 2014 at 10:15 pm

The petition of the day is:


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 »


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.



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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