The petition of the day is:
Issue: (1) Whether, under this Court’s decision in Martinez v. Ryan, post-conviction counsel’s ineffectiveness can provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim, or whether Martinez v. Ryan is limited to excusing only the default of a claim of ineffective assistance of trial counsel; and (2) whether, under the Anti-terrorism and Effective Death Penalty Act (AEDPA), a state-court adjudication of a judicial-bias claim is per se unreasonable under 28 U.S.C. § 2254(d)(2) merely because the allegedly biased judge rules on the claim based on facts within her knowledge without first conducting an evidentiary hearing, or whether a federal court must grant AEDPA deference to the judge’s determination when the evidence in the state-court record supports it.
Oyez has posted audio recordings of oral arguments from the first two weeks of the term. The Court heard arguments in:
Courts’ constitutional rulings or orders on state power to ban same-sex marriages kept up their very rapid pace on Friday, as the Supreme Court allowed gay and lesbian couples to begin getting licenses in Alaska, a federal judge did the same in Arizona and the state opted not to appeal, and a federal judge in Wyoming added another ruling against a ban.
A post on the Justices’ Alaska order is here, and a post on the Arizona rulings is here.
In Wyoming, U.S. District Judge Scott W. Skavdahl of Casper, relying on an earlier decision by the U.S. Court of Appeals for the Tenth Circuit, ruled that state’s ban unconstitutional. The judge gave the state six days (until next Thursday) to tell him whether officials planned to appeal. However, the state’s governor, Matt Mead, had said during a election campaign debate on Thursday night that if the ban were nullified, he saw no need to appeal. Wyoming thus seemed poised to become the thirty-second state where same-sex marriage would be legal. (UPDATE 8:21 p.m. The governor has now issued a public statement indicating that the state would not appeal.)
Keeping to itself its reasons for doing the same thing again, the Supreme Court on Friday afternoon rejected a plea to stop same-sex marriages from going ahead in Alaska. By denying the state’s plea for postponement, in a one-sentence order that did not provide any explanation, the Court’s action had the effect of making that state the thirty-first in which gays and lesbians can marry legally.
The Court released its order just moments before a temporary delay imposed by a federal appeals court was due to expire. With that expiration, a federal trial judge’s order finding Alaska’s ban on same-sex marriage to be unconstitutional went into effect, allowing the issuance of marriage licenses in that state.
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UPDATED 1:43 p.m. Arizona Attorney General Tom Horne issued a public statement Friday morning saying that the state would not appeal the decisions against the state’s ban on same-sex marriage. He said there was “zero” chance the Supreme Court would review the Ninth Circuit decision that led to the nullification of Arizona’s ban. In a letter to county clerks across the state, he said that they could begin issuing marriage licenses immediately to gay and lesbian couples. These developments make Arizona the thirtieth state in which such marriages are now fully permitted. This will also allow recognition of gay and lesbian marriages performed in other states for Arizonans. (Meanwhile, at this hour, there is no word from the Supreme Court on the legal situation in Alaska.)
A senior federal judge in Phoenix on Friday struck down Arizona’s ban on same-sex marriage in two separate rulings, and refused to delay the effect of the decisions. He also predicted that the Supreme Court would “turn a deaf ear” to a request to postpone such marriages in the state. His nearly identical, four-page rulings are here and here.
Meanwhile, U.S. Attorney General Eric Holder announced Friday morning that the federal government would recognize the legality of same-sex marriages in seven states — all covered by Supreme Court denials of review of three decisions by federal appeals court. As a result, Holder said, newly married couples or already married couples whose unions are now official will be entitled to all federal marital benefits.
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About two-thirds into the opening argument in Jennings v. Stephens on Wednesday, Justice Ruth Bader Ginsburg asked Randolph Schaffer (arguing for Jennings), “May I just clarify it?” referring to his argument. Unfortunately, clarity was not forthcoming, from either arguing party — likely because difficult complexities actually lurk beneath the simple question of when a party must file a notice of appeal. However the Court decides this case, its decision will likely produce useful answers for a broad swath of federal civil cases.
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At Bloomberg View, Noah Feldman analyzes Wednesday’s oral argument in the patent case Teva Pharmaceuticals USA v. Sandoz, Inc., emphasizing that “[l]ast year’s patent decisions revealed a strong preference by the Supreme Court to tell the Federal Circuit that it should stop thinking of itself as Lord of the Patents, and that ‘supreme’ means just what it sounds like. Look for the court to continue pushing that message this year.” In a post at Hamilton and Griffin on Rights, Greg Vetter also weighs in on the oral argument, concluding that “[i]t remains to be seen whether the Court will change claim construction to a mixed question of fact and law such that [Federal Rule of Civil Procedure 52] must apply.”
In The Economist, Steven Mazie weighs in on this week’s oral argument in North Carolina Board of Dental Examiners v. FTC. He notes the argument by one amicus that “[c]ompanies that act like cartels face stiff criminal penalties. Why . . . should private parties acting under the government’s aegis be allowed to get away with the same thing?” And in The Daily Beast, Zephyr Teachout discusses both the dentistry case and Department of Transportation v. Association of American Railroads, suggesting that the two “could redefine the degree to which companies can directly exercise political power.” Continue reading »
“My colleagues are invisible this evening and I’ve been promoted, apparently,” Justice Breyer quipped from the middle seat on the bench Thursday evening. The Associate Justice was occupying the Chief Justice’s place in the service of his role for the evening: playing Chief Justice John Marshall in the Supreme Court Historical Society’s reenactment of the oral arguments in the historic 1819 case McCulloch v. Maryland.
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UPDATE Friday a.m. A reply brief was filed late Thursday by challengers to the Texas law. It can be read here. This post now includes a link to the state’s opposing brief, as filed Thursday evening.
Accusing some of the challengers to Texas’s voter ID law of rushing their case to an early trial to create an artificial “emergency,” state officials urged the Supreme Court on Thursday afternoon to leave that law in operation through this year’s general election — with early voting starting next Monday.
The law, the state’s legal response said, has been in operation for fifteen months, which was the status quo that a federal judge in Corpus Christi disturbed when she barred enforcement of the law last week, just nine days before voting was to begin. The judge, the state argued, should have held off with her decision until after the elections this November.
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