Wednesday 5:28 p.m.  The following is an updated version of a post that appeared earlier today, taking account of the Supreme Court’s action in the Kansas case.


The Supreme Court, with two Justices dissenting, on Wednesday afternoon cleared the way for same-sex couples to marry in Kansas — the thirty-third state on the list.  In a brief order, the Court voted to leave intact a federal judge’s order nullifying the state’s ban on same-sex marriages.  There was no explanation, for the order or by the dissenters.

Because the judge’s ruling had been on hold only because of a temporary Supreme Court order issued Monday, the Kansas ruling took effect when the Justices’ new order lifted the earlier postponement.   State officials are now under a federal court requirement to start issuing marriage licenses to same-sex couples.

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By the end of Wednesday’s oral argument in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, it was not clear whether the state of Alabama or challengers to its state redistricting plan would be likely to win the racial gerrymandering claim currently before the Supreme Court. Nor was it clear how the Court would separate permissible partisan gerrymanders from impermissible racial gerrymanders. But the argument left little doubt that, one way or another and sooner or later, Alabama is likely to have a legislative districting plan which helps the state’s Republican legislators and minimizes the voting power of the state’s Democrats and African Americans.sSC141112_Brasher

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Over the dissents of five judges, the full U.S. Court of Appeals for the Fifth Circuit refused on Wednesday to rehear the sequel of the University of Texas affirmative action case, Fisher v. University of Texas at Austin.  The order is here.   That decision, supported by ten judges, leaves intact a divided three-judge panel ruling upholding some use of race in selecting the university’s incoming freshman classes.  The panel ruled after the Supreme Court ordered it to take a new look.

A statement by the organization that has arranged Abigail Fisher’s challenge, indicating that the case will be taken back to the Supreme Court, is here.  Ms. Fisher sued the flagship university after being denied admission; she claimed her rejection was due to her race — she is white.

After a Fifth Circuit panel had upheld the university’s first-year admissions program, which made some use of race, the case went to the Supreme Court.   The Justices overturned that decision, finding that the university had not given an adequate justification for the role that race had played in the process.

The Fifth Circuit panel upheld the plan again in July, and Ms. Fisher pursued en banc review by the full Fifth Circuit.  The majority of ten judges did not explain their refusal to vote for further review.  Circuit Judge Emilio M. Garza, who had dissented from the panel decision, wrote a one-page opinion dissenting from the denial of en banc review.  He referred mainly to his prior dissent.

He was joined in dissent by Circuit Judges Edith Brown Clement, Edith H. Jones, Priscilla R. Owen, and Jerry E. Smith.

It is doubtful that the new case will reach the Supreme Court in time to be decided in the current Term, even if review is granted.  Ms. Fisher has ninety days to file for review.

With the Supreme Court set to rule in the current Term on the scope of individuals’ access to subsidies to help them afford health insurance under the Affordable Care Act, the U.S. Court of Appeals for the District of Columbia Circuit decided on Wednesday afternoon to step aside.  In a brief order, the en banc appeals court granted the request of the challengers to hold the case “in abeyance” until the Justices rule.

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Today’s transcripts

By on Nov 12, 2014 at 3:10 pm

The transcript in Alabama Legislative Black Caucus v. Alabama is here

The transcript in Comptroller of Treasury of Maryland v. Wynne is here

Posted in Merits Cases

Screen Shot 2014-11-12 at 10.10.37 AMThe following is a series of questions posed by Ronald Collins on the occasion of the publication of American Justice 2014: Nine Clashing Visions on the Supreme Court (University of Pennsylvania Press), by University of Baltimore law professor Garrett Epps, who is also the Supreme Court correspondent for The Atlantic Online.

Welcome, Garrett. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book, which is available in hardback and Kindle editions.     

Question: This work is different from your other books, at least in its approach. Tell our readers a little bit about your approach in examining the Court’s October Term 2013.

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Wednesday round-up

By on Nov 12, 2014 at 8:23 am

Last week’s cert. grant in King v. Burwell, in which the Court will consider whether tax subsidies are available to individuals who purchase their health insurance on an exchange operated by the federal government, continues to dominate coverage and commentary.  In his column for Bloomberg View, Noah Feldman contends that the grant, along with the likelihood that the Court will weigh in on same-sex marriage this Term, will “transform the current Supreme Court term into a blockbuster — and the linkage relationship between them will be all-important.”  At the Ogletree Deakins blog, Hera Arsen summarizes the issues in the case, while at the Pacific Legal Foundation’s Liberty Blog Ethan Blevins urges the Justices to “apply the law as written even when the results seem absurd or unintended.”  At ACSblog, Timothy Jost addresses what he characterizes as truths and myths about the challenges, while at The New Republic Brian Beutler lists “eight reasons for the ACA’s supporters to stop freaking out—at least for now.” Continue reading »

Posted in Round-up

Petition of the day

By on Nov 11, 2014 at 10:15 pm

The petition of the day is:


Issue: Whether, under a statutory directive to regulate residual public health risks from electric utility steam generating units (EGUs) hazardous air pollutants (HAPs) emissions only as “appropriate and necessary,” the administrator (i) may regulate EGU HAP emissions that pose no hazard to public health, and (ii) may (or must as a Chevron Step One matter) ignore costs in determining “appropriate” regulation because more narrowly drawn decisional standards in the same statute require the administrator to consider (or preclude him from considering) costs.

Urging the Supreme Court to stay with its recent pattern of allowing same-sex marriages to go forward across the nation, two lesbian couples in Kansas on Tuesday afternoon opposed a plea by state officials for delay.  The opposing brief contended that the new split that has developed among federal appeals courts on the controversy is no reason to change course even though the split may lead the Justices to step in to resolve the question.

Justice Sonia Sotomayor is considering the state’s request to postpone a federal judge’s ruling in favor of same-sex marriage while the state appeals.  Sotomayor issued a temporary order for delay Monday evening, while awaiting the couples’ brief.  The Justice or the full Court could act at any time.

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The longer Monday’s argument in T-Mobile South LLC v. City of Roswell progressed, the more the dispute between the parties seemed to diminish. As previewed here, the case involves the City of Roswell’s denial of T-Mobile South’s application to construct a cell tower in a residential neighborhood, and the question for the Court is whether the denial complied with the “in writing” requirement of the Telecommunications Act of 1996. By the end of the argument, it appeared that the city agreed with much of T-Mobile South’s argument, puzzling several Justices and leaving unclear the proper path to decision.sSC141110_Fisher[1] Continue reading »

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