Gently chiding the Supreme Court for not making itself clear, a federal trial judge in Colorado refused on Wednesday to interpret the Justices’ recent actions on same-sex marriage as binding on lower courts.  U.S. District Judge Raymond P. Moore of Denver spoke out as he issued a ruling striking down Colorado’s ban on such marriages.  Refusing a formal plea by the state to put his ruling on hold, the judge nevertheless gave the state attorney general a month to ask a higher court to do that.

The Supreme Court has twice ordered delays in lower court decisions striking down state bans on same-sex marriage, but has never given reasons for doing so.  Several lower court judges, however, have interpreted those orders to mean that the Court does not want same-sex marriages to go forward while appeals are pending.  Not so Judge Moore.

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How a changing legal landscape and the breadth and depth of civil liberties affect ACLU advocacy in and out of the courts.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

Posted in Everything Else

Yesterday, two federal courts of appeals issued conflicting decisions on a major challenge to the operation of the Affordable Care Act (ACA).  The stakes are huge.  The rule at issue provides a big subsidy for millions of people to buy insurance.  Without those subsidies, many Americans would not be required to buy insurance, including young healthy individuals that are so important to the insurance pool.  The rule also determines whether employers have to comply with the upcoming mandate to provide insurance to their employees.

Here is how the statute works.  The ACA requires states to create “exchanges” – essentially, marketplaces – for their residents to buy health insurance.  But if a state refuses, the federal government will provide the exchange.  The law then provides tax credits for people who need financial assistance.  Without the subsidy, many people will not be subject to the “individual mandate” to buy insurance.  An employer also is required to make insurance available only if its employees receive the subsidy. Continue reading »

In 2007, Cory Voss was found dead in his pick-up truck outside a Virginia credit union.  The thirty-year-old naval officer and father of two young children had been shot five times at close range.  Prosecutors charged Voss’s wife, Cat, and her boyfriend, Michael Draven, with offering David Runyon, a former police officer and member of the U.S. Army, $20,000 to kill Voss so that they could collect on a $500,000 insurance policy.  Cat Voss pleaded guilty and received a life sentence; although Draven went to trial, he too received a life sentence because he cooperated with police.  But a federal jury recommended a death sentence for Runyon on two of the three counts that made him eligible for the death penalty, and the U.S. Court of Appeals for the Fourth Circuit upheld that sentence.  Continue reading »

Petition of the day

By on Jul 22, 2014 at 10:09 pm

The petition of the day is:

Samantar v. Yousuf

Issue: Whether a foreign official’s common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiffs’ allegations that those official acts violate jus cogens norms of international law.


A rare call for a rehearing response

By on Jul 22, 2014 at 9:24 pm

Yesterday the Court, as it periodically does in the summer, released a list of miscellaneous orders.   Most of the orders were unremarkable:  the Court granted, for example, requests to forgo a joint appendix in Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association, two cases that have been consolidated for oral argument on the merits in the fall.  It also denied rehearing in over thirty cases in which it had denied certiorari, virtually all of which were filed “in forma pauperis” – that is, without having to pay filing fees or for a professionally printed brief.

But there was one interesting development on yesterday’s list:  a rare order requesting a response to the state’s petition for rehearing in Martinez v. Illinois.  Based on that petition, it appears that the Justices may be focusing not on the merits of the state’s arguments, but instead on whether they should have decided the case at all.  Continue reading »


(UPDATED July 23, 2014:  This morning the Court denied another request by Wood to stay his execution.  Wood had asked the Court to review a decision by the Ninth Circuit which affirmed the district court’s denial of the motion that he had filed pursuant to Federal Rule of Civil Procedure 60(b)(6); the Court also denied that petition for certiorari.)

Last week a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted a request by an Arizona death-row inmate, Joseph Wood, to postpone his execution (scheduled for tomorrow) until he receives information regarding the state’s plans to execute him by lethal injection.  The court of appeals stayed the execution until Arizona provided Wood with “the name and provenance of the drugs to be used” and the “qualifications of the medical personnel” who would carry out the execution.  Yesterday the en banc Ninth Circuit declined to step in, instead leaving the panel’s stay order in effect.  That denial drew a sharp dissent from (among others) Chief Judge Alex Kozinski, who wrote that he had “little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona’s efforts to carry out its lawful sentence and bring Wood to justice.”   Continue reading »

Posted in Everything Else

UPDATED 7:19 p.m.   The U.S. Court of Appeals for the Fourth Circuit, in a decision directly contrary to the D.C. Circuit decision discussed below, on Tuesday afternoon upheld the government rule that cleared the way for subsidies for those buying health insurance on exchanges run by the federal government.  The Fourth Circuit’s decision is here.  Ruling unanimously, the panel found that the phrase in the health care law that was at issue was ambiguous, so it accepted the government’s interpretation.  The split in the appeals courts, if it remains after potential en banc reviews, would practically guarantee Supreme Court review.  (This post also has been updated to clarify which judges may participate in en banc review in the D.C. Circuit.)


In a potentially crippling blow to the new federal health care law, a federal appeals court ruled on Tuesday that the government may not provide subsidies to encourage people to  health insurance on the new marketplaces run by the federal government.  The U.S. Court of Appeals for the District of Columbia Circuit, in a two-to-one decision, ruled that those subsidies are only available on “exchanges” run by state governments.  The two opinions in the ruling and the dissenting opinion are here.

As of now, only fourteen states and Washington, D.C., operate those insurance marketplaces, and the federal government has stepped in to provide the same facility in the other thirty-six states.  Under the new decision, striking down a two-year-old government regulation, subsidies would be confined to the state-run exchanges.

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Tuesday round-up

By on Jul 22, 2014 at 7:49 am

Yesterday the U.S. Court of Appeals for the Ninth Circuit ruled in favor of a death row inmate who is seeking additional information about the drugs that Arizona intends to use to execute him; the state has now indicated that it plans to ask the Supreme Court to step in.  Astrid Galvan and Jim Salter report for the Associated Press (via ABC News), while Kent Scheidegger discusses the case at Crime and Consequences.    Continue reading »


Petition of the day

By on Jul 21, 2014 at 10:10 pm

The petition of the day is:

Kirby v. Marvel Characters, Inc.

Issue: (1) Whether a court can constitutionally take copyrights to works originally owned and authored by an independent contractor and hand them to a private party by judicially re-designating them “works for hire;” (2) whether “employer” under the Copyright Act of 1909 can be judicially extended beyond conventional employment to independent contractors, when this contradicts its common law meaning, binding Supreme Court precedent and longstanding canons of statutory construction; and (3) whether “work for hire” can be determined based on post-creation contingencies, like discretionary payment, when authorship and ownership of a copyrightable work, including “work for hire,” vests at inception.

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