Petition of the day

By on Jan 21, 2015 at 10:17 pm

The petition of the day is:


Issue: (1) Whether Section 7(e)(2) of the Military Commissions Act, 28 U.S.C. § 2241(e)(2), unconstitutionally strips Article III courts of jurisdiction to hear constitutional claims of individuals detained by the United States that a habeas court has determined were never properly detained; and (2) whether the D.C. Circuit correctly held that the use of the term “United States” in Section 7(e)(2) of the Military Commissions Act, 28 U.S.C. § 2241(e)(2), refers solely to the executive branch, in light of this Court’s precedent stating that the plain statutory meaning of the term “United States” is “the sovereign composed of the three branches.”

A morning of déjà vu – as Justice Sonia Sotomayor announced her opinion for a unanimous Court in Hana Financial, Inc. v. Hana Bank. The Court heard oral argument in three intellectual property cases this fall. It decided the first one yesterday (Teva Pharmaceuticals v. Sandoz) and the second one this morning (Hana). Both cases asked whether an appellate panel should review trial court findings about mixed questions of law and fact under a de novo standard or a clear error standard. In both cases, the supporters of de novo review argued that it would not be practicable to identify separate factual questions suitable for clear-error review. And in both cases, the Court unanimously concluded that clear-error treatment was appropriate, largely because that is the treatment that would apply outside the IP context.

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Two things stand a good chance of happening when the Supreme Court resolves cases dealing with procedure and jurisdiction. One is that the Court will be unanimous or close to unanimous in its decision. The other is that Justice Ruth Bader Ginsburg will write for the Court.

Such was the case on Wednesday in Gelboim v. Bank of America, in which a unanimous Court, in an opinion by Justice Ginsburg, held that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL.

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Given how the November 4 oral argument unfolded, the Supreme Court’s seven-to-two decision on Wednesday to side with a former air marshal-turned-whistleblower in Department of Homeland Security v. MacLean should hardly come as a surprise. Indeed, Chief Justice John Roberts’s sixteen-page opinion for the majority largely mimics MacLean’s brief in holding that (1) the exemption from the Whistleblower Protection Act for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by TSA regulations; and (2) the Aviation and Transportation Security Act of 2001 did not itself prohibit MacLean’s disclosure of alarming lapses in post-9/11 aviation security to a reporter. If there was any surprise in Wednesday’s decision, it was the unusual pairing of Justices Anthony Kennedy and Sonia Sotomayor in dissent – only the second time a dissent has featured that pair of Justices on their own. But whether there is a deeper lesson to take away from this strange line-up, the more immediate consequence of Wednesday’s decision is to clarify – and expand – federal whistleblower protections in a way that may well attract the attention, if not reprobation, of the political branches. Continue reading »


An observer who left the Supreme Court chamber halfway through Wednesday’s argument in a major civil rights case could easily have concluded that Justice Antonin Scalia is ready to give the law in that case a much broader scope to protect racial and other minorities as they seek places to live.  But, as it turned out, there was a “second” Scalia on the bench later in the argument, so it’s best not to count his vote yet.

At issue in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is how far Congress went in 1968 in banning racial discrimination in home sales or rentals: did it only ban intentional bias, or did it also outlaw housing policies that simply have a negative effect on minorities?  Justice Scalia, it seemed, was on both sides of that issue, reflecting a clear division across the bench.

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Today’s transcripts

By on Jan 21, 2015 at 1:01 pm

The transcript in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., is here.

The transcript in Rodriguez v. United States is here

Posted in Merits Cases

UPDATE (4:00 p.m.):  Kathleen L. Arberg, the Court’s public information officer, said eight individuals were arrested in Wednesday’s disturbance. Seven have been charged with violating a federal law against making “a harangue or oration, or utter[ing] loud, threatening, or abusive language in the Supreme Court Building,” as well as with violating two Court regulations.

Arberg said those seven, along with the eighth individual, were also charged with “conspiracy-related offenses” under District of Columbia law.

The eight individuals, whose identities were not released by the Court, were taken to a U.S. Capitol Police facility for processing; they were to then be taken to Washington’s city police department, known as the Metropolitan Police Department.

The group 99Rise, which was behind last year’s outburst by a protestor (and the later release of secretly recorded video from inside the courtroom), claimed responsibility for Wednesday’s protest. Continue reading »

We are live blogging this morning as opinions are announced. The live blog is available here.

Posted in Live

If there is one thing that the Roberts Court seems consistently willing to protect, it’s speech – even controversial or unpopular speech like violent video games, protests at the funeral of a fallen soldier, lies about receiving military medals, and dog-fighting videos. And for the Court’s five more conservative Justices, this enthusiasm for the First Amendment extends to the campaign-finance arena. In recent years, a closely divided Court has struck down a ban on independent campaign spending by corporations and unions as well as the overall caps on how much one person can contribute to campaigns for federal office. But yesterday’s oral argument in Williams-Yulee v. The Florida Bar, a Tampa lawyer’s challenge to a Florida rule that prohibited her from personally contacting would-be donors to ask them to contribute to her campaign for a job as a trial judge, hinted that, when it comes to the First Amendment, judges might be different. After all, some Justices suggested, it would be undignified for judges – who, Justice Ruth Bader Ginsburg said, are supposed to be “above the fray” – to go around asking people for money. Continue reading »

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