UPDATE Tuesday 1:48 p.m.   The Virginia county clerk seeking a delay of a federal appeals court decision striking down the state’s ban on same-sex marriage told the Supreme Court Tuesday that she does not oppose converting that request into a formal petition for review of the case.  Her filing clears the way for the Court to act at least on the stay request, ahead of a Thursday morning date for the appeals court decision to take effect.

Meanwhile, the U.S. Court of Appeals for the Ninth Circuit refused to take up before the en banc court as the first step in its consideration of the appeal by the state of Idaho from a district court ruling nullifying its ban on same-sex marriage.   The order is here.  The case thus will be heard on September 8 by a three-judge panel.


State officials in Virginia urged the Supreme Court on Monday to put on hold a federal appeals court decision striking down the state’s ban on same-sex marriage, but they also asked the Justices to move to decide that constitutional issue “as quickly as possible.”  Lawyers for two groups of same-sex couples in Virginia opposed delay, but they also asked the Court — if it does order a postponement of that lower court decision — to move ahead swiftly to rule on the core question.

One of the three new filings urged the Court to arrange to act on whether it will review that question at its “next Conference” — that is, the private gathering that the Justices will hold on September 29, ahead of the formal opening of the new Term.  At that Conference, the Justices will begin adding new cases for decisions to be issued by early next summer.

The new filings in the Virginia case are herehere, and here. Continue reading »

UPDATE 7:01 p.m.  Additional material has been added to this post.


Challengers to a key part of the Obama administration’s plan for enforcing the new health care law urged a federal appeals court on Monday to stand aside and let the issue be decided finally — and soon — by the Supreme Court.  A sixteen-page brief opposed the government’s plea for a new review of that dispute before the en banc U.S. Court of Appeals for the District of Columbia Circuit.

At stake in this controversy is a government rule that extended a system of tax credit subsidies to enable lower-income individuals to buy health insurance on marketplaces, or “exchanges,” set up and run by the federal government.  If that rule is struck down, as the challengers want, it would undermine much of the economic basis for the entire Affordable Care Act.  Federal exchanges exist in thirty-four states.

Continue reading »

UPDATE Friday 12:37 p.m.   Chief Justice Roberts has asked for a response to this stay application, due by 5 p.m. next Monday.


UPDATE Thursday 6:52 p.m.  The county clerk in  Virginia’s Prince William County asked the Supreme Court on Thursday afternoon to put on hold the Fourth Circuit’s decision striking down Virginia’s ban on same-sex marriage.  Clerk Michelle B. McQuigg filed the application (14A196) with Chief Justice John G. Roberts, Jr., who handles emergency filings from the geographic area of the Fourth Circuit.  He has the authority to act on his own or share the issue with his colleagues.  McQuigg plans to file her own petition for review.  State officials already had filed their petition (14-153).  Those officials support the McQuigg request, the filing said.  (Earlier posts on the Virginia situation are below.)


UPDATE Thursday 12:50 p.m.   The clerk of the Fourth Circuit has notified counsel that the decision against the Virginia same-sex marriage ban is scheduled — as of now — to go into effect at 9 a.m. next Thursday, a day later than state officials had expected.  However, that could be delayed if the Supreme Court were to impose a delay.


UPDATE 4:01 p.m.  Attorneys for the Prince William County clerk, who has been defending the Virginia same-sex marriage ban, said on Wednesday afternoon that they will ask the Supreme Court to postpone the Fourth Circuit’s ruling against that ban.  They said they would do so before the appeals court decision takes effect, next Wednesday.


Unless the Supreme Court steps in to postpone marriages for same-sex couples in Virginia, they could begin getting licenses to wed as early as next Wednesday, after the U.S. Court of Appeals for the Fourth Circuit refused a delay Wednesday morning.  If the procedure that has been followed in similar cases is used again, however, the Justices would be likely to order a postponement, if asked.

Continue reading »

Petition of the day

By on Aug 15, 2014 at 10:10 pm

The petition of the day is:

Fedder v. Addus Healthcare, Inc.

Issue: (1) Whether Section 1927 of Title 28 of the United States Code, which provides that when an attorney “unreasonably and vexatiously” multiplies proceedings, he may be required “to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct,” categorically prohibits courts from considering an attorney’s ability to pay when exercising their discretion in determining the amount of sanctions to be imposed; and (2) whether Section 1927 permits courts to impose sanctions when the attorney’s conduct was neither reckless nor in subjective bad faith.


Choosing cases and the strategies, tactics, and teams behind cases aimed at the Court; the “luxury” of building cases by thinking backwards – from the Supreme Court to a trial court; the importance of taking intermediate steps, listening to counsel, and having a Supreme Court lawyer at trial; what Heman Sweatt and Abigail Fisher have in common; and what to do now.

In this five-part interview, Edward Blum – Visiting Fellow at the American Enterprise Institute and Founder and President of the Project on Fair Representation – discusses his background, running for Congress, and moving from public finance to political advocacy to Supreme Court litigation; the meeting of race, ethnicity and religion; the desire to “make big law” and how to read Supreme Court signals; and success building cases from the ground up – from Bush v. VeraNAMUDNO v. Holder, and Shelby County v. Holder to Fisher v. University of Texas at Austin and beyond – with “people of good will.”

Posted in Everything Else

Petition of the day

By on Aug 14, 2014 at 10:10 pm

The petition of the day is:

City of Indianapolis, Indiana v. Annex Books, Inc.

Issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically-significant empirical evidence.

In the broadest challenge so far to the system of war crimes courts set up at Guantanamo Bay in Cuba, lawyers for a Yemeni national fighting his conviction on a terrorism conspiracy charge argued on Wednesday that those tribunals are an unconstitutional attempt to diminish the power of civilian courts.  In fact, the new brief argued, the civilian courts now are being forced to compete for the authority to try such crimes.

The case of Ali Hamza Suliman Ahmad Al Bahlul is now entering its seventh phase in a complex history stretching over the past decade.  After a major ruling, partly in his favor, last month by the en banc U.S. Court of Appeals for the District of Columbia Circuit, the case is now back before a three-judge panel of that Court.

This time, perhaps more than in any of its earlier phases, it looms as a potentially profound threat to the very existence of the Guantanamo tribunals.

Continue reading »


The Supreme Court’s recent forays into the Constitution as it applies to expression in the digital age have given the Justices a real-world awareness that, in addition to producing cultural and social gains, electronic devices can sometimes enable crime.  Proceeding with some caution, the Court has given prosecutors some constitutional guidance, but it also has stirred up some new questions.

At its September 29 Conference, the Court will have an opportunity to take up one of those new questions:  when does using the Internet to write about religious “holy war” amount to a crime of promoting terrorism?  Adding to the difficulty of resolving that issue is that the case involves a U.S. citizen — a Massachusetts man who dropped out of college to pursue his sympathy for Islamic doctrine.

Continue reading »


Rearranging the Clerk’s office

By on Aug 14, 2014 at 11:22 am

On September 1, the Court will put into place a new staffing structure for the Clerk’s office.  With the retirement of Chris Vasil as chief deputy clerk, that position will be abolished.  Instead, the Court will have four deputy clerks — one for case management, one for practice and procedure, one for administration, and one for case initiation.

The details are spelled out in this statement on the Court’s website.

Posted in Everything Else

Thursday round-up

By on Aug 14, 2014 at 7:52 am


  • In the wake of recent comments by President Obama to Democratic donors about the possibility of additional appointments to the Supreme Court, Sahil Kapur of Talking Points Memo discusses the prospect that, if all of the Justices remain on the Court through the end of the president’s second term, “the 2016 presidential election could lead to a cataclysmic reshaping of the Supreme Court, and with it the country.” Continue reading »
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