Event announcement

By on Aug 17, 2015 at 10:56 am

On August 19 at 1 p.m. the State & Local Legal Center will host a webinar on the Court’s recent decision in Reed v. Town of Gilbert.  John M. Baker and Greene Espel will discuss the practical implications of the case for local governments and their sign codes.  More information is available on the Center’s website.

 
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Monday round-up

By on Aug 17, 2015 at 6:49 am

Briefly:

  • In an op-ed for The National Law Journal (subscription or registration required), Rick Hasen suggests that a “special jurisdictional provision” in the McCain-Feingold campaign-finance law “makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money.”
  • At Jost on Justice, Kenneth Jost takes a look at Justice Antonin Scalia on the bench, noting that Scaliahas earned admiration from his ideological followers and attention from court watchers and the general public” but has also prompted “debate about how to deal with the spotlight-grabbing behavior that some commentators viewed as tarnishing his legacy and bringing disrespect on the judiciary.”
  • At casetext, Leah Litman discusses a recent Eleventh Circuit decision on the retroactivity of the Court’s decision in Johnson v. United States, holding that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague, and the prospect that the Court will weigh in on the question.

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.

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“In many ways, if you want to know what moves the Court to decide cases, listen to oral argument, which is much more like the Supreme Court’s Id. Opinions are like the Supreme Court’s Super Ego.”

Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University and a Partner in the Washington, DC, office of O’Melveny & Myers LLP, where he is a member of the Appellate Practice Group. Dellinger advised President William J. Clinton on constitutional issues in 1993 and then served in the Department of Justice as Assistant Attorney General and head of the Office of Legal Counsel from 1993 to 1996. He was Acting Solicitor General for the 1996-97 Term of the Supreme Court. He graduated with Honors in Political Science from the University of North Carolina and from Yale Law School, where he was an editor of the Yale Law Journal. He served as law clerk to Justice Hugo L. Black for the Court’s 1968-69 Term.

In this five-part interview, Mr. Dellinger discusses his background, including his emerging awareness of the civil rights movement growing up in North Carolina and talking his way into Yale Law School; his clerkship for Supreme Court Justice Hugo Black; how the Court has changed since the Warren Court years; the importance of a Court made up of Justices with diverse experiences; the importance and experience of oral argument; life in the White House and in the Justice Department, as head of the Office of Legal Counsel and as Solicitor General; nominating a Supreme Court Justice; and the relationship between the media’s coverage of the Court and public understanding of the Court.

Part Five: Access

“You gain a lot of understanding about what’s going on at the Court by watching oral argument.”

Understanding the Court as a public institution: the experiences a Supreme Court Justice might have; the risks in legal technicalities; the nomination process; cameras in the Court and media coverage; whether building the Supreme Court was a mistake; and whether the Justices should be out and about.

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One of the highest-profile political corruption cases in years will soon be on its way to the Supreme Court.  Lawyers for former Virginia Governor Robert F. McDonnell told a federal appeals court on Thursday that they will be taking his corruption case on to Washington and want him to be allowed to stay out of prison until the Justices act.  He has been free under an earlier court order after a federal jury in Richmond found him guilty of eleven criminal fraud counts, and the trial judge sentenced him to two years in prison.

In the new filing in the U.S. Court of Appeals for the Fourth Circuit, McDonnell’s legal team said it would ask the Court to review two questions of major importance in cases bringing public corruption charges: what kind of official action must follow a request to an officeholder for a favor, and whether the trial judge in this case failed to ask potential jurors if they had made up their minds about guilt based on the massive publicity that surrounded the case before the trial.

Continue reading »

 
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Friday round-up

By on Aug 14, 2015 at 8:55 am

At Balkinization, Marty Lederman notes that the federal government has filed its first brief opposing certiorari in the challenges by non-profit religious groups to the Affordable Care Act’s birth-control mandate.  And in The Economist, Steven Mazie discusses two other Affordable Care Act rulings and the prospect that the Court will weigh in.  He concludes that it’s “[n]ot likely” but adds that “few expected the court to hear the frivolous semantic complaint known as King v Burwell last year.”  Continue reading »

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Thursday round-up

By on Aug 13, 2015 at 2:40 am

Briefly:

  • At Fortune, Jeff John Roberts looks at the impact that the Court’s decision last Term in North Carolina Board of Dental Examiners v. FTC could have on start-ups, and in particular the prospect that the “end of antitrust immunity for state boards could help companies like Uber against regulators.”
  • At Wisconsin Appellate Law, Kellen Kasper discusses a recent Seventh Circuit decision striking down, in the wake of the Court’s recent decision in Reed v. Town of Gilbert, a city ordinance that prohibits panhandling; he notes that the court of appeals was “among the first federal appellate courts to analyze Reed, and it remains to be seen what efforts courts will undertake to rescue laws from First Amendment peril.”

 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.

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“In many ways, if you want to know what moves the Court to decide cases, listen to oral argument, which is much more like the Supreme Court’s Id. Opinions are like the Supreme Court’s Super Ego.”

Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University and a Partner in the Washington, DC, office of O’Melveny & Myers LLP, where he is a member of the Appellate Practice Group. Dellinger advised President William J. Clinton on constitutional issues in 1993 and then served in the Department of Justice as Assistant Attorney General and head of the Office of Legal Counsel from 1993 to 1996. He was Acting Solicitor General for the 1996-97 Term of the Supreme Court. He graduated with Honors in Political Science from the University of North Carolina and from Yale Law School, where he was an editor of the Yale Law Journal. He served as law clerk to Justice Hugo L. Black for the Court’s 1968-69 Term.

In this five-part interview, Mr. Dellinger discusses his background, including his emerging awareness of the civil rights movement growing up in North Carolina and talking his way into Yale Law School; his clerkship for Supreme Court Justice Hugo Black; how the Court has changed since the Warren Court years; the importance of a Court made up of Justices with diverse experiences; the importance and experience of oral argument; life in the White House and in the Justice Department, as head of the Office of Legal Counsel and as Solicitor General; nominating a Supreme Court Justice; and the relationship between the media’s coverage of the Court and public understanding of the Court.

Part Four: In general

“The greatest difference when you are arguing as Solicitor General is that the United States is such a repeat player, that it has such long-term institutional interests, that you don’t necessarily want to win every case at all costs because what you might argue in one case might be adverse to the government’s interest in another case.”

Serving as Solicitor General of the United States; resolving conflicts among departments about and developing the legal position of the United States; contrasting the Solicitor General’s office and the Office of Legal Counsel; engaging the president to decide the legal position of the United States; being a legal advisor in the White House; the value of political service to the independence of legal opinions, why winning Bush v. Gore made Ted Olson an effective Solicitor General and whether that idea applies to Supreme Court Justices.

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Wednesday round-up

By on Aug 12, 2015 at 3:05 am

Yesterday Lyle Denniston reported for this blog on a ruling by a federal district judge in Kansas declaring that state’s ban on same-sex marriage unconstitutional, in the wake of the Court’s decision earlier in this summer in Obergefell v. Hodges.  Howard Wasserman analyzes the ruling at PrawfsBlawg, where he contends that the judge’s decision “nails the connection between Obergefell and this case.” Continue reading »

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Demonstrating that the Supreme Court may rule but may not always command, the process of making same-sex marriage available nationwide is still unfolding, some six weeks after the Justices decided in its favor.  Political resistance is developing in many places, but the legal process is moving ahead — state by state — to make same-sex marriage a reality.

Although there is as yet no sign of active defiance by officials in states where such marriages remained banned — that is, as of June 26, when the Court decided Obergefell v. Hodges — officials in a number of states are resisting the final legal steps to implement that decision.

In one of the first definitive rulings in response to those challenges, a federal judge in Topeka, Kansas, on Monday issued a compromise ruling, declaring that state’s ban to be unconstitutional, but refusing to issue now a binding order stopping its enforcement.

Continue reading »

 
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“In many ways, if you want to know what moves the Court to decide cases, listen to oral argument, which is much more like the Supreme Court’s Id. Opinions are like the Supreme Court’s Super Ego.”

Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University and a Partner in the Washington, DC, office of O’Melveny & Myers LLP, where he is a member of the Appellate Practice Group. Dellinger advised President William J. Clinton on constitutional issues in 1993 and then served in the Department of Justice as Assistant Attorney General and head of the Office of Legal Counsel from 1993 to 1996. He was Acting Solicitor General for the 1996-97 Term of the Supreme Court. He graduated with Honors in Political Science from the University of North Carolina and from Yale Law School, where he was an editor of the Yale Law Journal. He served as law clerk to Justice Hugo L. Black for the Court’s 1968-69 Term.

In this five-part interview, Mr. Dellinger discusses his background, including his emerging awareness of the civil rights movement growing up in North Carolina and talking his way into Yale Law School; his clerkship for Supreme Court Justice Hugo Black; how the Court has changed since the Warren Court years; the importance of a Court made up of Justices with diverse experiences; the importance and experience of oral argument; life in the White House and in the Justice Department, as head of the Office of Legal Counsel and as Solicitor General; nominating a Supreme Court Justice; and the relationship between the media’s coverage of the Court and public understanding of the Court.

Part Three: Advocacy

“Any answer that begins ‘Justice O’Connor’ when the question was asked by Justice Ginsburg is a terrible answer.”

Arguing the line-item veto case as Solicitor General immediately after the Supreme Court announced Clinton v. Jones unanimously against the administration; the high- and low-water marks of arguing before the Court; “sometimes hostile questions are friendly questions”; and preparing for oral argument.

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