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.


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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At its Conference on December 12, 2014, the Court will consider petitions seeking review of issues such as removability under the Class Action Fairness Act, the constitutionality of an Arizona law limiting the availability of abortions performed with medication, and the presumption of judicial vindictiveness under North Carolina v. Pearce.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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The Justices had tough questions for both sides Monday morning in Direct Marketing Association v. Brohl. Although the legal issues seem relatively simple, several of the Justices appeared frustrated during the course of the argument, and the end result could be a decision that relies heavily on reasoning that neither side advanced.

The case involves the intersection of the federal Tax Injunction Act (known as the TIA) and Colorado’s scheme for collecting use taxes – the taxes we owe our state government when we buy from an out-of-state online retailer that doesn’t collect sales tax. The TIA prevents federal courts from (among other things) enjoining or restraining the “collection” of any state tax. Colorado’s innovative scheme for collecting use taxes requires online retailers to keep a variety of records and send a variety of notices, the most important of which is a Form-1099-like notice sent to the state each year detailing all of the online purchases of each Colorado resident. When the Direct Marketing Association (a retailer trade group) challenged the scheme under the Commerce Clause, the Tenth Circuit held that the TIA barred any injunction against the Colorado regime. Continue reading »

Today’s transcripts

By on Dec 9, 2014 at 2:20 pm

The transcript in Gelboim v. Bank of America Corp. is here.

The transcript in Alabama Department of Revenue v. CSX Transportation Inc. is here

Posted in Merits Cases

Workers who are required to stay after their normal hours on the job to undergo a security screening are not entitled to overtime pay while they wait for that process and then go through it, the Supreme Court ruled unanimously on Tuesday.  The decision in Integrity Staffing Solutions, Inc. v. Busk overturned the one federal appeals court that had ruled in favor of workers in that scenario — an increasingly common practice in the workplace.

Justice Thomas delivers the opinion of the Court.

Justice Thomas delivers the opinion of the Court.

That ruling and a second one, clearing up a split among lower courts on how courts should handle a claim that a juror in a trial was dishonest, were the first decisions on argued cases in the current Term.  The second ruling came in the case of Warger v. Shauers.

The overtime pay case involved workers at two warehouses in Nevada, which served as storage and order-filling facilities for the online retail giant Amazon.com.  Two of Integrity’s hourly workers sued the company after it began requiring all workers to go through screening before they left the premises, a policy designed to deter theft of goods. Continue reading »

Tuesday round-up

By on Dec 9, 2014 at 6:43 am

Yesterday the Court heard oral arguments in Department of Transportation v. Association of American Railroads, in which it is considering a challenge to a 2008 law which gives Amtrak a significant role in setting performance standards.  Lyle Denniston covered the oral argument for this blog; other coverage comes from Jeremy P. Jacobs of Greenwire, while commentary comes from Bloomberg View’s Noah Feldman and Jonathan Keim at the National Review Online’s Bench Memos.  And at ISCOTUSnow, Edward Lee predicts the winners in both of yesterday’s oral arguments based on the number of questions for the lawyers.

Yesterday Reuters released The Echo Chamber, a comprehensive study of the Supreme Court bar and its effect on the Court’s certiorari docket.  Writing for this blog, Eric Citron interviewed Joan Biskupic of Reuters about the study. Continue reading »

Posted in Everything Else

Petition of the day

By on Dec 8, 2014 at 10:11 pm

The petition of the day is:

Standard Furniture Manufacturing Co., Inc. v. International Trade Commission
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.

Issue: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the Government must prove that non-discriminatory measures would fail to satisfy the Government’s interests.


In United States v. June and United States v. Wong, the Court will revisit a recurring theme for the Roberts Court – identifying “jurisdictional rules,” as distinct from non-jurisdictional “claim-processing rules,” and determining whether time limitations should be subject to equitable tolling. These cases involve the Federal Tort Claims Act (“FTCA”) and the timing requirements for initiating administrative and judicial proceedings against the United States.

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Puzzled about just what kind of entity Congress created when it set up Amtrak to run the nation’s passenger trains, the Supreme Court spent an hour Monday trying to decide the future of that system and, indeed, whether even to decide or hand this dispute back to a lower court.  In the case of  Department of Transportation v. Association of American Railroads, Amtrak’s future is very much on the line because the case turns on how to assure that its trains run on time, and thus how it can keep customers coming back to its service.

But the case as it reached the Justices is not about operating efficiency; rather, it is about what the Constitution may have to say about who writes the rules to govern railroad traffic and how such rules get enforced.  The Court seemed determined to avoid any revival of an old constitutional doctrine to decide that question, and yet it appeared unsure about whether it could make use of an alternative constitutional approach.

Curtis E. Gannon for the Department of Transportation

Assistant to the Solicitor General Curtis E. Gannon for the Department of Transportation

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