Editor's Note :

Editor's Note :

On Monday at 9:30 a.m., we expect the Court to issue additional orders from the November 24 Conference. We expect one or more opinions in argued cases on Tuesday at 10 a.m.

Showing some skepticism that an election now taking place in Hawaii is a purely private matter, Supreme Court Justice Anthony M. Kennedy on Friday temporarily blocked the ballot-counting after all the votes are in on Monday.  The order was not a final action, hinting that there could be other orders within coming days.

The balloting on a proposal to begin the process toward setting up a new nation of “native Hawaiians” within the state of Hawaii actually began on November 1, and concludes on November 30.  Only “native Hawaiians” can vote.  The challengers, contending that the election is an official election that is race-based and thus violates the Constitution, had not asked that the balloting be stopped, and Kennedy’s order does not do so.

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The following is a series of questions posed by Ronald Collins on the occasion of the publication of Earl Warren and the Struggle for Justice (Lexington Books, 2015, pp. 360), by Wilmington College political science professor Paul Moke.

Welcome, and thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your new book.

Question: How and why did you come to write this biography?

Moke: As a youth in the 1960s, I attended one of the first fully integrated high schools in central Ohio. Although the full meaning of the social experiment with desegregation in my high school escaped me at the time, over the years I realized that the rich interracial experiences I had in the classroom, on the football field, and in social settings reflected Earl Warren’s vision for public education in the United States. In subsequent decades, as jurists and scholars criticized Warren’s major decisions, public schools re-segregated along racial and class lines, and problems in the field of criminal justice have intensified. Given the importance of racial justice to the future of American democracy, I decided it would be a good idea to learn more about Earl Warren and his ideas.  

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Event announcements

By on Nov 27, 2015 at 10:39 am

On December 7, the National Archives Foundation, the Constitutional Accountability Center, and the National Constitution Center will host a discussion entitled, “The 13th Amendment at 150: Emancipation, America’s Second Founding, and the Challenges That Remain.” Speakers will include Representative G.K. Butterfield, Judge Bernice Donald, Judge James Wynn, Thavolia Glymph, Richard Brookhiser, and Kate Masur; Jeffrey Rosen will be the moderator. More information about the event, which will be at the William G. McGowan Theater, is available on the National Archives Foundation website.

On December 14 at 6 p.m., Jay Wexler will read from his new book, Tuttle in the Balance, about a swing Justice in a midlife crisis. This event will be at Teaism in Penn Quarter.

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Petition of the day

By on Nov 25, 2015 at 11:00 pm

The petition of the day is:


Issue: (1) Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional; and (2) whether a trial court must ask potential jurors who admit exposure to pretrial publicity whether they have formed opinions about the defendant’s guilt based on that exposure and allow or conduct sufficient questioning to uncover bias, or whether courts may instead rely on those jurors’ collective expression that they can be fair.


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The stakes are high as the Court’s December argument session brings yet another securities case. In an unusual twist, though, Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Manning is neither a class action nor a federal case (at least initially). Rather, Greg Manning and the other respondents, disappointed by an unsuccessful investment, sued petitioner Merrill Lynch in state court, stating claims created by state law. So you might ask yourself how such a case can get to the Supreme Court? The answer is easy to understand: Merrill Lynch removed the case to federal court, contending either that the case “arises under” federal law (and thus falls within the general federal-question jurisdiction) or comes under the exclusive federal jurisdiction granted by the Securities Exchange Act. The case is before the Supreme Court to consider the exclusive jurisdiction argument, which the Third Circuit rejected.

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Gobeille v. Liberty Mutual Insurance Company will never get the press scrutiny of King v. Burwell, but at heart it considers much the same policy question: to what extent does federal law facilitate the centralized management of health care? To be sure, the precise issue in the case is quite distinct from the weighty questions the Court considered in King. The question here is whether the Employee Retirement Income Security Act of 1973 (ERISA) preempts state statutes that provide for “all payer” health care databases – designed to provide comprehensive state-level information about the distribution of health care services provided in the state and the costs of providing them.

The statute at issue here authorizes Vermont’s database, but there is nothing unusual about Vermont’s program; more than a dozen states manage similar databases. The statute obligates all providers of health care in the state to provide detailed data about their services – what services they provide, how much they cost, where they are provided, and the like. The detailed data helps Vermont to understand a variety of things of import in managing health-care expenditures: variations in cost by location and over time, variations in the use and effectiveness of procedures, variations in the choices between pharmaceuticals and more intrusive interventions and the like.

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Wednesday round-up

By on Nov 25, 2015 at 7:56 am

Happy Thanksgiving to our readers!  We’re grateful for you and all of the links that you send us.  (Yes, I know it’s tomorrow, but we’ll be off tomorrow.)

Yesterday the Solicitor General responded to the request by Texas and other states for a thirty-day extension of time to file their brief opposing review in the challenge to the Obama administration’s immigration policy.  Lyle Denniston covered the filing for this blog, while at The Federalist, Ilya Shapiro and Josh Blackman urge the Court not to “rush what could become a landmark separation-of-powers case.”  And at The Economist, Steven Mazie discusses the administration’s petition for review.  Continue reading »

Posted in Round-up

Pressing the Supreme Court to set a schedule for a ruling in the current Term on the new immigration policy, the Obama administration on Tuesday volunteered to give up some of its filing options and opposed a month-long delay for the reply of the twenty-six states challenging the policy.  Solicitor General Donald B. Verrilli, Jr., outlined the government’s views in a two-page letter.

The states have asked for an extra thirty days, beyond the normal thirty, to answer the government’s appeal defending the policy.  Verilli, however, said the government would only consent to an eight-day extension.  That would mean the states’ brief would be due on December 29.  The consent to that added time would be contingent on the states’ brief actually reaching the Court that day.  The government, Verrilli said, is willing to forfeit its right to file a reply to the states’ opposition.

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If ever a case called for pure and unfiltered judgments about fairness, it is Menominee Indian Tribe v. United States. The specific question before the Court is whether the statute of limitations of the Contract Disputes Act should have been equitably tolled to permit the tribe’s suit against the United States. The government agrees that the doctrine of equitable tolling applies, and the parties even agree (for the most part) on the legal standard: the propriety of tolling depends on both the tribe’s diligence and the extent to which extraordinary circumstances justify the tribe’s delay in filing. The only dispute is whether the reasons for the tribe’s delay justify tolling.

From a purely legal perspective on timeliness, the relevant facts are pedestrian. The case involves “Annual Funding Agreements” between the tribe and the United States for the years 1996 through 1998. The tribe first presented its claims to the government in 2005. Because the date of presentation is more than six years after the claims accrued, the claims are out of time under the Contract Disputes Act.

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The Supreme Court on Tuesday released the schedule of oral arguments for the sitting that begins on Monday, January 11.  The first case to be heard is one of the most significant of the Term: a test of whether non-union members in public jobs should be freed from paying any dues or fees to the union representing their workplace.

The daily list, together with a brief summary of the issues involved, follows the jump.  Arguments are for one hour, and begin at 10 a.m.  None are scheduled for afternoons.

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