Editor's Note :

Editor's Note :

We expect one or more opinions in argued cases on Tuesday at 10 a.m. We will begin live-blogging at 9:45 a.m. at this link.


A half-century after the Supreme Court declared the democratic ideal that the voters within a state should be equal to each other, it has indicated that it is finally ready to say how that should be measured.  “One person, one vote” was a very simple constitutional slogan.  But what does it mean, in the real world of sorting out election opportunity?

Next Tuesday, December 8, the Court will take up the case of Evenwel v. Abbott, a Texas case in which two voters have complained that, because they were placed in two state senate districts with many other voters, their votes count for less than those in other districts with fewer voters eligible to go to the polls.  Their plea raises the profound question, as important in practice as it is in theory: what, in a democracy, does representation mean?

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On Monday, December 7, the Court will hear arguments in the second federal Indian law case slated for the December sitting. This case pits the arguments of the Dollar General stores, a multi-billion dollar company, against those of a sophisticated federally recognized Indian tribe, the Mississippi Band of Choctaw Indians. The central question is whether tribal courts may properly exercise civil jurisdiction over non-Indians for tort claims. Dollar General argues that the Court has not resolved this specific question, but should find that tribal courts lack civil jurisdiction over tort claims absent congressional action or the clear consent of the non-Indian party subject to tribal court authority. The tribe and a significant number of amici, including the United States, contend that this legal issue is well settled and that the Choctaw tribal court properly has jurisdiction under clear facts applied to existing precedents. The outcome is likely to have an enormous impact on Indian tribal sovereignty and on tribal business relationships with business partners.

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After an hour of oral arguments today in Green v. Brennan, one thing seemed fairly clear:  despite the very able efforts of Washington attorney Catherine Carroll, who was appointed to defend the lower court’s ruling in favor of the U.S. Postal Service after the United States declined to do so, the Court is unlikely to adopt the reasoning of the U.S. Court of Appeals for the Tenth Circuit.  That court had ruled that the forty-five-day clock for former U.S.P.S. employee Marvin Green to contact an equal employment opportunity (EEO) counselor – a prerequisite to file his lawsuit alleging that he had been “constructively discharged” in retaliation for complaining about discrimination – began to run on the date of the “last discriminatory act” alleged in his lawsuit.  What remains less clear is what rule the Court will ultimately adopt, particularly when several Justices expressed doubt that, at least in this case, the two rules proffered by Green and the United States would actually lead to different results. Continue reading »

Argument transcripts

By on Nov 30, 2015 at 5:33 pm

The transcript in Musacchio v. United States is here; the transcript in Green v. Brennan is here.

Posted in Merits Cases

The Supreme Court on Monday sought the federal government’s views on a plea by the Mexican parents of a fifteen-year-old boy who was killed by a U.S. border agent shooting across the boundary between the two countries.  The parents are arguing that the U.S. Constitution should be extended beyond the border to provide a remedy for their son’s death.

The Court did not grant review of any new cases.

The case sent to the Justice Department for reaction, Hernandez v. Mesa, involves an incident in June 2010, when a group of Mexican boys were playing in the border area near El Paso, Texas.  A U.S. Border Patrol agent, Jesus Mesa, Jr., arrived on the scene; he detained one of the boys, but Sergio Adrian Hernandez Guerca ran back under the bridge that leads into Mexico.  Mesa opened fire, and the boy was killed, with at least one shot to the head.

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Monday round-up

By on Nov 30, 2015 at 5:45 am

Today is the first day of the December sitting, and the Court will hear oral arguments in two cases.  The George Washington Law Review’s “On the Docket” previews all of the December cases.  Rory Little previewed Mussachio v. United States, in which the Court will consider two issues relating to federal computer crimes, for this blog; I did the same for Green v. Brennan, in which the Justices will consider when the filing period begins to run for a federal employee who is alleging that he was constructively discharged.  Commentary on Green comes from Scott Oswald, who at the Whistleblower Law Blog contends that, if the Tenth Circuit’s ruling is allowed to stand, “it will become far too easy to deprive federal workers of their day in court.” Continue reading »

Posted in Round-up

One of the constitutional puzzles that never seems to get decided once and for all is how much sovereignty the states kept when they became part of the Union.  One of the true hallmarks of a sovereign is that it cannot be sued without its consent.  A California state agency, supported by most of the other states, is trying to persuade the Supreme Court to immunize states from being haled into other states’ courts, against their will.

On Monday, December 7, at 11 a.m., the Justices will hear — for a second time — the case of Franchise Tax Board of the State of California v. Hyatt.  It grows out of a running, years-long effort by that state agency to collect tens of millions of dollars that the board believes a Nevada inventor owes it in California taxes.  But the key issue is whether the tax board must answer, in Nevada courts, for the techniques it has used in trying to collect those tax revenues.

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Petition of the day

By on Nov 29, 2015 at 11:00 pm

The petition of the day is:


Issue: (1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; and (3) whether the guidance was subject to the APA’s notice-and-comment procedures.


This week at the Court

By on Nov 29, 2015 at 12:02 pm

The Court issued additional orders from the November 24 Conference on Monday.  The Court also heard oral arguments in two cases on Monday morning.  We expect opinions in argued cases tomorrow at 10 a.m., and the Court will hear oral arguments again on Tuesday and Wednesday at 10 a.m.  The hearing list for the December sitting is here.  On Friday the Justices will meet for their December 4 Conference; our list of “petitions to watch” for that Conference is available here.


In its Conference of December 4, 2015, the Court will consider petitions seeking review of issues such as whether disability payments are “earnings” and whether Texas’s standard for determining whether a capital defendant meets the definition of “intellectual disability” violates the Eighth Amendment.

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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