Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- so we are again doubtful that certiorari will be granted in any cases today.

It is almost a joy to read the papers in Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., with David Frederick squaring off against Ted Olson. The issue sounds tedious at first – whether the filing of a securities class action tolls the statute of limitations for all members of the asserted class. But it takes only a moment of reflection to realize how much is at stake. Suppose a securities class action alleges a class with hundreds of members (not at all uncommon), and suppose that litigation over certification lasts three to four years (again, not at all uncommon). Now suppose that certification is denied, and the class members now start to file their own individual suits, responding to the failure of the class action. But even if the class action was filed promptly after the incident giving rise to the litigation (not at all a foregone conclusion), it is likely that in many (most?) cases the statutes of limitations would have expired for the individual potential plaintiffs long before the conclusion of litigation over certification. What that means is that the potential plaintiffs who want to protect themselves must file separately, before the limitations period expires, to protect their right to sue after certification is resolved. Can that be right? That is what this case is about. Continue reading »

Friday round-up

By on Sep 19, 2014 at 9:06 am

Briefly:

  • At Re’s Judicata, Richard Re discusses Tuesday’s comments by Justice Ruth Bader Ginsburg suggesting that the Court might decline to grant any of the pending petitions challenging state bans on same-sex marriage because there is currently no division among the circuits. (Lyle also covered those comments in a post yesterday for this blog.)
  • At The Economist’s Democracy in America blog, Steven Mazie reports on the unusual alliance of amici in Young v. UPS, in which the Court will consider the scope of the Pregnancy Discrimination Act, but observes that “the ideological overlap, while intriguing, is no guarantee that justices will reach consensus.”
  • At ACSblog, Adam Winkler cites the extent to which the Court has adhered to Alexander Bickel’s “passive virtues” in the context of its jurisprudence on equal rights for gays and lesbians to support his argument that we shouldn’t “be surprised if the Court stays out of the fray – at least until there is a circuit split. A Court known for its bold assertions of judicial supremacy may be seeing that a passive virtues approach minimizes controversy.”
  • On Saturday at 6 p.m., C-SPAN Radio will air the latest installment of its series on historic Supreme Court arguments, focusing on the oral argument in Zivotofsky v. Clinton, the first round of litigation involving a challenge by a U.S. citizen born in Jerusalem to the State Department’s refusal to list “Israel” as his place of birth on his passport, and what it might mean for the upcoming argument in Zivotofsky v. Kerry.
  • ProPublica has an overview of the state of play in voting rights around the country in the wake of the Court’s 2013 decision in Shelby County v. Holder, striking down the formula used to determine which state and local governments must comply with the Voting Rights Act’s preclearance requirement.
  • The Cato Institute has published its Supreme Court Review, containing articles that look back at the major cases of the October Term 2013 and one that looks forward at the upcoming Term.

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. 

Posted in Round-up
 
Share:

Petition of the day

By on Sep 18, 2014 at 10:10 pm

The petition of the day is:

13-1342

Issue: Whether a veteran whose disability picture “more nearly approximates,” 38 C.F.R. § 4.7, but “does not satisfy” the criteria required for a higher rating is ineligible for that higher rating.

UPDATED 6:03 p.m.   The Supreme Court may be poised to start acting on the same-sex marriage controversy, although the post below casts some doubt on that.  It now appears that some lower courts will not go ahead with other cases while they await the Justices’ action.  On Thursday afternoon, the U.S. Court of Appeals for the Tenth Circuit put on hold a pending appeal by the state of Colorado, with the delay in that case to continue until the Supreme Court acts on two prior rulings by that court striking down other states’ same-sex marriage ban.  Colorado’s ban has been nullified by a federal trial judge.  In asking that the state’s appeal be “held in abeyance,” the state’s attorney general noted that the two Tenth Circuit marriage cases had now reached the Supreme Court.

————–

Commentary

If Justice Ruth Bader Ginsburg was speaking for the Supreme Court on Tuesday night in Minnesota about how the Justices will deal with the same-sex marriage issue this Term, the question just may go untouched for a time.  She seemed to be saying that, until there is a fresh split among federal appeals courts on the issue, there would be no need for the Court to move with dispatch to confront the constitutional controversy.

Those comments appeared to run directly counter to the impression the Court gave only a week earlier, when it rushed its planning to take up the question at its first Conference of the Term on September 29.  Without waiting for all of the filings to come in on cases from five states, the Court staff — probably not acting independently — referred all seven pending petitions for that early review.  That is almost unprecedented, under the Court’s rules and normal procedures.

Continue reading »

Thursday round-up

By on Sep 18, 2014 at 8:15 am

Briefly:

  • At BuzzFeed, Chris Geidner chronicles the path of the challenges to state bans on same-sex marriage from the Supreme Court to the lower courts and now back to the Supreme Court, and he suggests that, although the Justices “might not see ‘urgency’ to take a case immediately, the filings by the state officials and plaintiffs in the cases show that they have a sense of urgency and are looking for resolution.”
  • In the Supreme Court Brief (subscription required), Tony Mauro reports on Justice Sonia Sotomayor’s recent trip to Oklahoma, which “included a rare private visit with Native American leaders.”
  • At ACSblog, Erwin Chemerinsky discusses his new book, in which he argues that “the Supreme Court has largely failed throughout American history, especially at its most important tasks and at the most important times.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. 

Posted in Round-up
 
Share:

Petition of the day

By on Sep 17, 2014 at 10:10 pm

The petition of the day is:

13-1399

Issue: (1) Whether the Fourth Circuit erred in holding, in conflict with the Ninth Circuit, that the Shipping Act’s exemption from federal antitrust laws of any “agreement or activity relating to the foreign inland segment” of “through transportation” between the United States and a foreign country” does not apply where a collusive agreement relating to the “foreign inland segment” indirectly affects prices for overall “through transportation”; and (2) whether the Fourth Circuit erred in holding, in conflict with this Court’s jurisprudence and with decisions of other courts, that the False Claims Act, which provides that a person who submits to the government a false claim for payment is liable for treble damages plus “a civil penalty of not less than $5,000,” requires — and the Eighth Amendment’s Excessive Fines Clause condones — mechanical imposition of a separate civil penalty for each invoice submitted to the government (here, over 9,000), without regard to the defendant’s culpability, even where the invoices are “false” only by operation of law under United States ex rel. Marcus v. Hess.

This is the third installment of “Petitions to watch” featuring cases up for consideration at the Court’s September 29 “Long Conference.”  Because the Court has not considered new petitions since the end of June, the number of petitions slated for review at the September 29 Conference is quite large – more than at any other Conference of the year. Therefore, we are posting our list of petitions to watch at the “Long Conference” in three separate installments. This final installment includes petitions seeking review of issues such as state bans on same-sex marriage and the appealability of an order denying confirmation of a bankruptcy plan.  The first two installments are available here and here.

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.

Continue reading »

Posted in Everything Else
 
Share:

Wednesday round-up

By on Sep 17, 2014 at 8:27 am

Briefly:

  • In The New Yorker, Jeffrey Toobin discusses the “undue burden” standard for laws regulating abortion, which he characterizes as Justice Sandra Day O’Connor’s “most important triumph during her long and consequential tenure on the U.S. Supreme Court,” and whether that standard will survive if challenges to a Texas law requiring abortions to be performed in ambulatory surgical centers come to the Court.
  • In an op-ed for The National Law Journal (registration or subscription required), Ron Honberg urges the Court to grant the petition for certiorari filed by Texas death row inmate Scott Panetti and “announce a precise standard for assessing a prisoner’s competency for execution.”
  • Ben Winslow of Fox13 News in Salt Lake City reports that a federal judge has relied on the Court’s decision last June in Burwell v. Hobby Lobby Stores, holding that the application of the Affordable Care Act’s birth control mandate to closely held corporations with strong religious beliefs violates the Religious Freedom Restoration Act, to rule that “a member of the Fundamentalist LDS Church does not have to answer questions about child labor violations.”
  • Chantal Valery of Agence France-Presse (via Business Insider) reports on the recent announcement that the Court will review all seven pending same-sex marriage petitions at its September 29 Conference; she observes that, “[w]hether for or against gay marriage, concerned US parties seem to be forming a consensus on at least one point: it’s time for the Supreme Court to decide.”

Continue reading »

Posted in Round-up
 
Share:

With the support of the Justice Department, two new cases on investment law are more likely to be reviewed by the Supreme Court:  one on the right of investors to sue for false stock registration statements, and one on the duty of employee benefit plan managers to get rid of questionable items in plan portfolios.  Asked by the Court for the government’s views, the Solicitor General urged the Court to rule on both.

The Court’s docket indicates that the Justices will consider whether to grant the petitions in Moores v. Hildes, the registration statement case, and Tibble v. Edison International, the benefit plan case, at their September 29 Conference.  The government’s brief in Moores is here, while its brief in Tibble is here.

Continue reading »

Petition of the day

By on Sep 16, 2014 at 10:05 pm

The petition of the day is:

14-86

Issue: Whether an employer can be liable under Title VII of the Civil Rights At of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

More Posts: More Recent PostsOlder Posts
Term Snapshot
Awards