UPDATED 1:43 p.m. Arizona Attorney General Tom Horne issued a public statement Friday morning saying that the state would not appeal the decisions against the state’s ban on same-sex marriage. He said there was “zero” chance the Supreme Court would review the Ninth Circuit decision that led to the nullification of Arizona’s ban. In a letter to county clerks across the state, he said that they could begin issuing marriage licenses immediately to gay and lesbian couples. These developments make Arizona the thirtieth state in which such marriages are now fully permitted. This will also allow recognition of gay and lesbian marriages performed in other states for Arizonans. (Meanwhile, at this hour, there is no word from the Supreme Court on the legal situation in Alaska.)
A senior federal judge in Phoenix on Friday struck down Arizona’s ban on same-sex marriage in two separate rulings, and refused to delay the effect of the decisions. He also predicted that the Supreme Court would “turn a deaf ear” to a request to postpone such marriages in the state. His nearly identical, four-page rulings are here and here.
Meanwhile, U.S. Attorney General Eric Holder announced Friday morning that the federal government would recognize the legality of same-sex marriages in seven states — all covered by Supreme Court denials of review of three decisions by federal appeals court. As a result, Holder said, newly married couples or already married couples whose unions are now official will be entitled to all federal marital benefits.
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About two-thirds into the opening argument in Jennings v. Stephens on Wednesday, Justice Ruth Bader Ginsburg asked Randolph Schaffer (arguing for Jennings), “May I just clarify it?” referring to his argument. Unfortunately, clarity was not forthcoming, from either arguing party — likely because difficult complexities actually lurk beneath the simple question of when a party must file a notice of appeal. However the Court decides this case, its decision will likely produce useful answers for a broad swath of federal civil cases.
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At Bloomberg View, Noah Feldman analyzes Wednesday’s oral argument in the patent case Teva Pharmaceuticals USA v. Sandoz, Inc., emphasizing that “[l]ast year’s patent decisions revealed a strong preference by the Supreme Court to tell the Federal Circuit that it should stop thinking of itself as Lord of the Patents, and that ‘supreme’ means just what it sounds like. Look for the court to continue pushing that message this year.” In a post at Hamilton and Griffin on Rights, Greg Vetter also weighs in on the oral argument, concluding that “[i]t remains to be seen whether the Court will change claim construction to a mixed question of fact and law such that [Federal Rule of Civil Procedure 52] must apply.”
In The Economist, Steven Mazie weighs in on this week’s oral argument in North Carolina Board of Dental Examiners v. FTC. He notes the argument by one amicus that “[c]ompanies that act like cartels face stiff criminal penalties. Why . . . should private parties acting under the government’s aegis be allowed to get away with the same thing?” And in The Daily Beast, Zephyr Teachout discusses both the dentistry case and Department of Transportation v. Association of American Railroads, suggesting that the two “could redefine the degree to which companies can directly exercise political power.” Continue reading »
“My colleagues are invisible this evening and I’ve been promoted, apparently,” Justice Breyer quipped from the middle seat on the bench Thursday evening. The Associate Justice was occupying the Chief Justice’s place in the service of his role for the evening: playing Chief Justice John Marshall in the Supreme Court Historical Society’s reenactment of the oral arguments in the historic 1819 case McCulloch v. Maryland.
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The petition of the day is:
Issue: Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, a plaintiff must plead that a statement of opinion not only contains false statements of material facts or omits material facts required to make the statements in the registration statement not misleading, but also that the speaker actually knew that the statements were false or misleading, even though the Court has held, in Ernst & Ernst v. Hochfelder, that under § 11 “the issuer of the securities is held absolutely liable,” without regard to fault.
UPDATE Friday a.m. A reply brief was filed late Thursday by challengers to the Texas law. It can be read here. This post now includes a link to the state’s opposing brief, as filed Thursday evening.
Accusing some of the challengers to Texas’s voter ID law of rushing their case to an early trial to create an artificial “emergency,” state officials urged the Supreme Court on Thursday afternoon to leave that law in operation through this year’s general election — with early voting starting next Monday.
The law, the state’s legal response said, has been in operation for fifteen months, which was the status quo that a federal judge in Corpus Christi disturbed when she barred enforcement of the law last week, just nine days before voting was to begin. The judge, the state argued, should have held off with her decision until after the elections this November.
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Vowing to come back soon with a plea for the Supreme Court to take on the basic constitutional issue of state power to ban same-sex marriages, state officials in Alaska on Thursday asked the Court in the meantime to delay lower court orders that would allow such marriages beginning on Friday.
The application (Parnell v. Hamby, docket 14A413) seeks a postponement pending final action in the U.S. Court of Appeals for the Ninth Circuit, where the state has filed an appeal. The request was filed with Justice Anthony M. Kennedy, who handles emergency legal pleas from the geographic area of the Ninth Circuit, which includes Alaska. Kennedy can act on his own, or refer the request to the full Court.
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The Republican River
All the rivers run into the sea;
Yet the sea is not full;
Unto the place from whence the rivers come,
Thither they return again.
–Ecclesiastes 1:7 (KJV)
On Tuesday, the Court heard arguments in an original jurisdiction dispute between Kansas, Colorado, and Nebraska over flows of a common river: the Republican River. After the states disputed the terms of their 1943 compact, they enacted a 2003 settlement stipulation. When the parties confronted a breach by Nebraska and a dispute over the water supply models they used to calculate Nebraska’s share, they reached an impasse. Kansas exercised its veto power, sending the dispute first to arbitration, then the Special Master and to the Supreme Court. Continue reading »
John Elwood reviews Tuesday’s relisted cases.
Though we’re just a week into the new Term, OT2014 has already had more than its share of headlines, with the Justices issuing a slew of emergency orders on hot topics ranging from gay marriage to voting rights to abortion. But those faded into insignificance Wednesday as the Court took up the controversial issue of teeth whitening, with the Nine debating whether strips, gels, or trays were the best way to get their ivories just the right shade of Biden. The magic number for adult teeth may be thirty-two, but the magic number for relists this week is the almost manageable number of eleven. Relist Watch will now pause for three minutes and thirty-seven seconds while you watch that last link. Continue reading »