UPDATED 5:31 p.m.   Justice Kennedy has called for a response to this application, to be filed by noon (Eastern time) next Tuesday, December 16.

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State officials in Arizona, seeking to block undocumented immigrants from getting driver’s licenses even if they have been spared from deportation, asked the Supreme Court today to examine new Obama administration moves on immigration policy.  This marked the first time that the Court has been drawn into the tense national debate over President Obama’s actions on immigration without waiting for Congress to act on a new law.

The Arizona application (14A625) is here; a challenged decision of the U.S. Court of Appeals for the Ninth Circuit is here.  A federal district court ruling in the case is here.

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Lawyers for both parties faced skeptical questioning in Tuesday’s arguments in Gelboim v. Bank of America. Tasked with deciding the appealability of a decision dismissing all claims in an action that is part of a consolidated MDL action, the Court considered competing approaches that exposed questions about the meaning and scope of particular rules and that may or may not make much practical difference.

sSC141209wide_Goldstein

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Tax systems treat taxpayers differently all the time, and the central question before the Court in Alabama Department of Revenue v. CSX Transportation is when a difference in treatment amounts to a violation of the anti-discrimination provision of the Railroad Revitalization and Regulatory Reform Act of 1976 (the “4-R Act”). This is the second time this case has been before the Court, and Tuesday’s oral argument made it clear that the Court was looking for a way to avoid having this case return for a third time.

The Court seemed inclined to agree with CSX that an assessment whether there has been discrimination should be based on a comparison with a taxpayer’s competitors rather than with other businesses in general. On a second issue – how a court should conduct this discrimination analysis vis-à-vis competitors – the Court seemed more divided. On the one hand, the Court seemed very aware of how difficult it is to analyze how an entire state tax system treats two taxpayers. Yet several of the Justices also seemed troubled that the Eleventh Circuit had not analyzed at all whether a facial discrimination was justified, which seems to ignore the complicated reality of state tax systems altogether. This second concern suggests that a remand might be appropriate. However, another remand in this case did not appear to be a desirable outcome, especially because the Court would then need to give some guidance to the court of appeals as to how to take sufficient notice of the complexities of state taxes without having courts drown in these complexities.

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Thursday round-up

By on Dec 11, 2014 at 9:00 am

Coverage of and commentary on the Court continue to focus on Tuesday’s two opinions in argued cases.  In Integrity Staffing Solutions v. Busk, the Court held that workers at a warehouse are not entitled to compensation for time spent in anti-theft screenings.  At In These Times, Moshe Marvit criticizes the Court’s efforts to distinguish “other cases where workers’ preliminary time was compensable,” arguing that, “if theft is as big of a concern as the retailer has alleged . . . it would seriously impair Amazon’s efficiency at least as much as dull knives would slow down meatpacking productions”; Danny Hensel also discusses the case at his Article 8 blog. And in Warger v. Shauersthe Court held that an accident victim who asked for a new trial could not rely on a juror’s affidavit of what another juror said in deliberations to demonstrate that juror’s dishonesty during voir dire.  Roger Park covered the decision for this blog; at Re’s Judicata, Richard Re argues that the decision is “noteworthy in part because it comes at a time when grand jury decisions are coming under special scrutiny, particularly in cases involving concerns of racial bias.”

Yesterday the Court heard oral arguments in United States v. Wong and United States v. June, a pair of cases involving equitable tolling and the Federal Tort Claims Act.  Marcia Coyle covers both cases for The National Law Journal’s Supreme Court Brief, while at ISCOTUSnow Edward Lee predicts the winners based on the number of questions at oral arguments.  Continue reading »

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Petition of the day

By on Dec 10, 2014 at 10:10 pm

The petition of the day is:

14-518

Issue: (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in Virginia Congressional District 3, where there is no dispute that politics explains the enacted plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly’s political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the court below’s finding of a Shaw v. Reno violation was based on clearly erroneous fact-finding; and (4) whether the majority erred in holding that strict scrutiny requires a legislature to adopt the least restrictive means possible for complying with the Voting Rights Act, instead of a re-districting plan that substantially addresses such compliance.

Today’s transcripts

By on Dec 10, 2014 at 7:51 pm

The transcript in United States v. Wong is here

The transcript in United States v. June is here

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Justice Sotomayor delivering the opinion of the Court.

Justice Sotomayor delivering the opinion of the Court.

In Warger v. Shauers, the Court examined Federal Rule of Evidence 606(b), which generally prohibits the testimony of jurors about statements made during deliberations when the testimony is offered in “an inquiry into the validity of a verdict or indictment.” In a unanimous opinion by Justice Sotomayor, it held that Rule 606(b) precludes a party seeking a new trial from using a juror’s affidavit about statements made by another juror during deliberations to show that the second juror gave dishonest answers during voir dire. Continue reading »

 
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Wednesday round-up

By on Dec 10, 2014 at 10:56 am

Yesterday the Court issued its first two signed opinions of the Term, both unanimous.  In Integrity Staffing Solutions v. Busk, it held that workers at a warehouse are not entitled to compensation for the time that they spent waiting to undergo, and then to undergo, anti-theft screenings.  In Warger v. Shauers, it held that an accident victim seeking a new trial after a verdict against him could not rely on a juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire.  Lyle Denniston covered the decision in Integrity Staffing for the blog; other coverage of that opinion comes from Nina Totenberg of NPR, Jaclyn Belczyk of JURIST, and Hera Arsen at the Ogletree Deakins blog.  Commentary on the decision comes from Noah Feldman at Bloomberg View, who argues that the Court “interpreted the 1947 Portal to Portal Act essentially as a pro-employer law” and suggests that the Court’s “liberal justices were supremely uninterested in the moral logic of employee compensation.”  At Forbes, Dan Fisher observes that “[e]mployers have been hit with rising numbers of FLSA suits by lawyers seeking to assemble large classes of workers who can claim back pay and overtime for activities they consider to be intrinsic to the job. But this decision, coming after a similar decision last year in Sandifur vs. U.S. Steel, will help employers fight back.”  Coverage of the decision in Warger comes from Jaclyn Belczyk of JURIST. Continue reading »

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Petition of the day

By on Dec 9, 2014 at 10:14 pm

The petition of the day is:

14-351

Issue: Whether sovereign immunity bars an American Indian tribe from seeking Ex parte Young relief from the unconstitutional enforcement of a state tax scheme merely because that relief might require refunds for taxes unlawfully collected in the future.

UPDATED Wednesday 2:54 p.m.   The Supreme Court has not yet scheduled any of the new same-sex marriage cases for consideration at the January 9 Conference, according to the latest updates on the Court’s electronic docket.  There are still opportunities to do so, however, later in this month.  It may be that the Court is waiting for all of the five pending petitions to have all filings submitted before scheduling them for consideration.

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Giving the Supreme Court a fuller set of same-sex marriage cases to consider, probably in early January, the governor of Kentucky today joined in urging the Justices to rule on the controversy because it is “important to all citizens of this nation.”  The Kentucky case (Bourke v. Beshear) tests the power of states to both prohibit same-sex marriages and refuse to recognize such marriages performed in other states.

With the Kentucky filing, two cases seeking review of a decision by the U.S. Court of Appeals for the Sixth Circuit, upholding the bans in four states, are now close to ready for the Justices to review.  The other challenge to the Sixth Circuit’s ruling came from a Michigan case; there is also a case from Louisiana which tests that state’s ban before the U.S. Court of Appeals for the Fifth Circuit reviews it.

In all three of those cases, the issues surrounding same-sex marriage are put before the Court in a variety of contexts, and, in each, state officials — while defending their bans — have urged the Justices to step in and issue a final ruling.  Depending upon how soon the cases are assembled and sent on to the Justices, they could be considered as early as the private Conference set for January 9.

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