Deborah W. Denno is the Arthur A. McGivney Professor of Law at Fordham University School of Law.

“Welcome to Groundhog Day,” begins Justice Antonin Scalia in his concurrence in Glossip v. Gross, a narrow five-to-four opinion in which the Court held that three death-row inmates failed to establish that the drug midazolam created a substantial risk of severe pain when used as the first of three drugs in Oklahoma’s lethal injection procedure. Assuming that Justice Scalia is referring to the movie “Groundhog Day” starring Bill Murray, a romantic comedy in which the lead character experiences the same day over and over, it seems an oddly lighthearted way to respond to Justice Stephen Breyer’s dissent and to yet again pass on the opportunity to evaluate a method of execution that seemingly becomes more reckless each time it is used. Continue reading »

Twenty-four hours after giving constitutional backing for Arizona’s use of an independent commission to draw new election district maps for its members of Congress, the Supreme Court on Tuesday took on a case complaining that the same state agency wrongly used race and partisanship in crafting state legislative district boundaries.

This was one of five new cases in which the Court granted review in the final round of regular orders before the Justices began their summer recess.  Other cases dealt with public employee unionism, states’ immunity from lawsuits in other states’ courts, federal courts’ authority to hear securities cases based on state law, and Indian tribes’ rights in contracting with the federal government over public services for tribal members.  All will be heard in the new Term starting in October.

The Justices took no action Tuesday on Mississippi’s plea to uphold its new abortion law, which a lower court said would lead to the closing of the last abortion clinic in the state.  That case may be on hold until the Court decides what to do about a similar case from Texas.  Action may be delayed until the new Term, but could come during the summer recess, although that seems less likely.

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[Updated 7/5/2015: Several pages have been updated to reflect changes to the Stat Pack. The links below will send you to the updated Stat Pack.] Continue reading »


Reacting to an undoubted invitation by the Supreme Court to raise the issue, a group of California public school teachers on Tuesday persuaded the Justices to review the constitutionality of requiring government workers to pay fees to support any labor union activity.  The case involves a direct request for the Court to overrule a 1977 decision that had upheld such fees under “agency shop” rules.

It has been clear, since the Court’s ruling exactly one year ago in Harris v. Quinn, that a majority of the Court would welcome a plea to undo the first precedent extending “agency shop” rules to the public sector — Abood v. Detroit Education Association. That four-decade-old precedent was roundly criticized in the lead opinion in Harris, but the opinion stopped short of saying that the ruling should be overturned.

That is the key issue in the new case, Friedrichs v. California Teachers AssociationIn fact, that case from its beginning was intended as a direct challenge to the Abood decision, and two lower courts decided it quickly on that premise, sending it on toward the Supreme Court.

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Kent Scheidegger is the attorney for the Criminal Justice Legal Foundation, which filed an amicus brief in support of the respondents. 

“[I]s it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty …?” Justice Samuel Alito asked at oral argument two months ago in Glossip v. Gross. Yesterday we got the answer. No, it is not.

From great debate to war of attrition

The moral and policy debates on capital punishment are older than the Republic, but until the 1960s the debate was not a constitutional one. In 1958 Chief Justice Earl Warren unequivocally rejected the notion that the death penalty was unconstitutional. The subsequent constitutional debate came to a climax in 1976, when the Supreme Court rejected the argument that the death penalty was unconstitutional but began the process of reading a host of limitations and procedural requirements into the Eighth Amendment. Continue reading »

Tuesday round-up

By on Jun 30, 2015 at 7:00 am

Yesterday morning the Court issued its final three opinions of the Term.  Mark Walsh provided us with a “view” of the proceedings from the Courtroom, while Ilya Shapiro weighs in on the decisions at Cato at Liberty.

In Glossip v. Gross, the Court rejected a challenge to Oklahoma’s use of a sedative normally used to treat anxiety as the first drug in its three-drug lethal injection cocktail.  I covered the decision in Plain English, with other coverage coming from Howard Fischer of Capitol Media Services (via and Howard Mintz of the San Jose Mercury News.  Commentary comes from our online symposium on the decision, Eric Berger at CNN, Michael Meltsner and Martha Davis at the Human Rights at Home Blog, John Donahue at the Stanford Lawyer, Hadar Aviram at PrawfsBlawg and California Correctional Crisis, Steven Schwinn at the Constitutional Law Prof Blog, Corinna Lain at PrawfsBlawg, Aaron Caplan at PrawfsBlawg, and Josh Lee at casetext. Continue reading »

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Operators of electric generating plants that burn coal or oil have a right to try to convince the government that regulating poisons that come out of their smokestacks will cost them too much and thus should not go ahead, the Supreme Court ruled by a five-to-four vote on Monday.   The decision focused on the very hazardous pollutant mercury but may apply to others as well.

When Congress orders an agency to begin regulating an industry, but says it should do so only if “appropriate and necessary,” the agency must take costs into account before it issues any orders, according to the ruling in a group of cases under the name Michigan v. Environmental Protection Agency.

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Andrew Brasher is the Solicitor General of Alabama, which filed an amicus brief supporting the respondents. 

The story of Glossip v. Gross is that no lethal injection protocol can satisfy people who believe there should be no executions. That has always been the subtext of the case. And now that the Justices have issued their opinions, it has become explicit. Continue reading »

Continuing to make sure that female employees and students have access to birth control, but that religious non-profit organizations where those women work or study do not have to provide it, the Supreme Court took action Monday on a case that is developing for next Term.

In a two-page order, the Court turned aside requests by Roman Catholic colleges, charities, and other non-profits in Pennsylvania to keep on hold a ruling by the U.S. Court of Appeals for the Third Circuit, rejecting those groups’ challenge to the Affordable Care Act’s contraceptive mandate.   Justice Samuel A. Alito, Jr., had temporarily put that ruling on hold last April until further legal papers were filed, but had taken no further action since.

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Splitting five to four, the Supreme Court on Monday afternoon temporarily blocked Texas from enforcing two new requirements that abortion clinic operators say will force many of them to close.  The order will keep those rules on hold at least until the Court decides whether to rule on their constitutionality.   The restrictions had been due to go into effect Wednesday.

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