Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the April 24 Conference. We expect one or more opinions in argued cases at 10 a.m. on Wednesday.


Twenty-two months ago, the Supreme Court — perhaps not fully realizing that it was doing so — set off a constitutional revolution.  In a decision that spoke somewhat tentatively about an “evolving understanding of the meaning of equality,” the Court in United States v. Windsor saw in that understanding a deep even if new respect in America for the dignity of same-sex couples who choose to marry.

What followed from that, with astonishing speed, was that the list of states where such marriages became legal expanded from twelve to thirty-six.   Lower federal courts, in particular, led the way.  On Tuesday, at a two-and-a-half-hour hearing, the Supreme Court confronts a simple question: did those courts go astray, and misread what Windsor really meant?

A cabinet shelf full of about one hundred and fifty briefs introduced the Justices to that question from many angles.  But the actual outcome of the case known as Obergefell v. Hodges could well depend upon how the Court answers three core onstitutional issues.  Each by itself, in fact, could be decisive: Who decides?  What right is at issue? What is the constitutional test?

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This week at the Court

By on Apr 26, 2015 at 12:02 am

On Monday at 9:30 a.m. we expect orders from the April 24 Conference. We expect one or more opinions in argued cases at 10 a.m. on Wednesday. We will be live-blogging beginning at 9:45.

This is the second week of the April sitting.  On Tuesday the Court will hear oral argument in Obergefell v. Hodges, which is consolidated with three other cases, on the questions of whether the Fourteenth Amendment requires that states grant and/or recognize same-sex marriages. We will be live-blogging updates from the oral argument beginning at 11 a.m.


At 10 a.m. Wednesday, the final day of oral arguments this Term, the Supreme Court will hold a one-hour hearing on an Oklahoma death penalty case that could range widely over broad constitutional questions, or — in the alternative — focus very narrowly on one very specific execution method. Arguing for the three death-row inmates in the case of Glossip v. Gross will be Robin C. Konrad, a federal public defender from Phoenix. Representing Oklahoma will be its solicitor general, Patrick R. Wyrick, of Oklahoma City. Each will have thirty minutes of time.


In an era when botched executions of death-row inmates happen more often, raising new questions about capital punishment, the Supreme Court continues to rely upon a set of legal principles about lethal-drug protocols that have not been reexamined in seven years. The Justices have given themselves the opportunity to do so next week when they hear an Oklahoma case, but just how far they are prepared to go to reopen those principles probably will only be clear as the oral argument unfolds.

In one sense, the case of Glossip v. Gross is focused on the use of a single drug in a three-drug execution “cocktail” — a sedative, the first dose, that is supposed to put the inmate in a sufficiently deep state of unconsciousness that there will be no pain, or at least only tolerable pain, from injections of the other two drugs, which paralyze and then kill. But in another sense, the entire constitutional structure surrounding execution by lethal drugs could be at stake.

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Petition of the day

By on Apr 24, 2015 at 10:40 pm

The petition of the day is:


Issue: (1) Whether, in a 42 U.S.C. § 1983 action brought by an individual alleging that a prior criminal conviction was obtained in violation of this Court's decision in Brady v. Maryland – requiring the prosecution to turn over potentially exculpatory evidence – the statute of limitations runs from the time the case is resolved via nolle prosequi or otherwise “in such manner that [proceedings] cannot be revived” – as the Fourth Circuit below concluded – or runs from the moment the plaintiff may bring the action under this Court’s decision in Heck v. Humphrey – as the Tenth Circuit has concluded and as the Sixth, Ninth, and Eleventh Circuits have suggested; and (2) whether the Fourth Circuit erred when it concluded, inconsistent with its own decisions and those of this Court, that individual police officers had an independent Brady duty to bring forward exculpatory evidence in 1988 and that this was clearly established so as to support a cause of action against the individual officers under 42 U.S.C. § 1983 and negate a defense of qualified immunity.


This week’s arguments

By on Apr 24, 2015 at 3:58 pm

Oyez has posted audio and transcripts of this week’s arguments.

The Court heard arguments this week in:

Posted in Everything Else

Few subjects are more timely than the use of excessive force by law enforcement officials, and the Supreme Court on Monday will consider an aspect of that issue: how to evaluate excessive force claims made by pretrial detainees.

Specifically, the Court will try to resolve a deep split among the federal appeals courts over whether a pretrial detainee may demonstrate unconstitutional excessive force by showing conduct that was objectively unreasonable or whether evidence of a subjective intent to harm the detainee is also required.

The importance of the case, Kingsley v. Hendrickson, may be lost in the shadow of the same-sex marriage dispute being argued the next day. Pretrial detention presents a set of fascinating analytical challenges for the courts, with both practical and theoretical ramifications that are important because by many estimates there are more than 450,000 individuals in pretrial detention in the United States on a typical day. While the overwhelming majority do not face issues of excessive force, complaints by detainees have arisen in almost all of the federal appeals courts. Continue reading »

Relist Watch

By on Apr 24, 2015 at 10:29 am

John Elwood reviews Monday’s relisted cases.

Apart from the release of the Court’s order list, the big news Monday was the announcement of this year’s Pulitzer Prizes. And once again, we have been cheated of our rightful gold Pulitzer medallion and $10,000 in prize money. We figured we’d at least get some recognition for our poetry submissions, if not for explanatory reporting, public service, or even our editorial cartooning (what is with that pinkie, anyway?). As an aside, while ten Gs might make for a decent hip-hop starter kit, that kind of stumpy seems a little meager for the preeminent prize in American journalism. No wonder journalism seems about as appealing nowadays as, well, law. Continue reading »


Event announcement

By on Apr 24, 2015 at 10:07 am

On July 8,  Laurence H. Tribe will deliver  the Chautauqua Institution’s Robert H. Jackson Lecture on the Supreme Court. More information is available on the Institution’s website.


At its Conference on April 24, 2015, the Court will consider petitions seeking review of issues such as retaliation for speech and association protected by the First Amendment, the use of a firearm and handcuffs during an investigative stop, and the filing period for a constructive discharge claim under federal employment discrimination law.

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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Friday round-up

By on Apr 24, 2015 at 6:42 am

The upcoming arguments in the challenges to state bans on same-sex marriage continue to dominate commentary on the Court.  At Reuters, Lawrence Hurley reports that “[t]wenty-eight of the country’s biggest financial firms had made an unprecedented show of unity in support of gay marriage by urging the court to strike down state laws banning same-sex unions.”  In The New Republic, Brianne Gorod cites last Term’s decision in Riley v. California, holding that police cannot search an arrestee’s cellphone without a search warrant, and argues that, although “Congress and state legislatures may be able to supplement the Constitution’s protections . . . they cannot scrap them.”  At Talking Points Memo, Sahil Kapur profiles Washington attorney Paul Smith, describing him as the “lawyer who set the stage for nationwide marriage equality.”  At Slate, Tom Donnelly discusses the Fourteenth Amendment and the significance of edits to the proposed amendment that “paved the way” for same-sex marriage.

At the Supreme Court Brief (subscription required), Marcia Coyle reports on an amicus brief supporting the states filed by a group of international law scholars.  At Conjugality, Walter Schumm and Jason Carroll reprint portions of the amicus brief that they filed, in which they argue that same-sex marriages will lead to a decline in fertility. And at The Daily Signal, Gene Schaerr discusses two amicus briefs which argue that “the man-woman definition of marriage simply does not implicate gays’ and lesbians’ personal liberty.” Continue reading »

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