Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- so we are again doubtful that certiorari will be granted in any cases today.

UPDATED Sunday 11:48 a.m.   State officials filed a final brief on Sunday morning, replying to the challengers’ pleas to allow early voting to go ahead on Tuesday.  The state’s reply argued again that the challengers had created the time crunch by moving slowly to respond to changes that the state sought to implement in February.  The new filing also repeated arguments that lower courts had created a sweeping new right to early voting that will have an impact across the nation.  There is no proof, the document asserted, that Ohio’s changes would actually deny anyone the right to vote.  The filing of this document completes the process, thus enabling Justice Elena Kagan or the full Court to act at any time on whether to delay early voting.

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Arguing that early voting is necessary to continue to deal with the “unprecedented disaster” at the polls in Ohio in 2004, several civil rights advocacy groups urged the Supreme Court on Saturday to permit Ohioans to start casting their ballots next Tuesday for this year’s general election.  Allowing that would merely keep in place what the state has been doing for the past four elections, and would not affect any other state, the fifty-four-page brief contended.

Justice Elena Kagan is currently considering, and could share with her colleagues, pleas by state officials and the Ohio legislature to allow the state to cut back early in-person voting from thirty-five to twenty-eight days, to bar voting on most Sundays in the coming weeks, and to eliminate voting in the early evening on any day.   Those are the very opportunities, the advocacy groups said in their response, that tens of thousands of black and low-income voters have been able to use to cast their ballots.

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Petition of the day

By on Sep 26, 2014 at 10:11 pm

The petition of the day is:

13-1504

Issue: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the City can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.

As the leaves change for the fall in Washington, the Justices may cast their thoughts back to their own days studying Federal Courts in law school, when they consider Dart Cherokee Basin Operating Co. v. Owens on the second day of the Term. The question presented could have come straight out of a law-school exam.

The Class Action Fairness Act (the “CAFA”) allows defendants to remove class actions to federal courts if they involve at least one hundred putative class members and at least $5 million in controversy. The question presented is whether a notice of removal is adequate if it simply asserts the facts necessary to satisfy the jurisdictional bar, without attaching evidence that documents the truth of those facts. Because Dart had failed to do so, the Tenth Circuit held that its notice was defective. The Supreme Court has agreed to review Dart’s challenge to that holding.

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Friday round-up

By on Sep 26, 2014 at 8:41 am

Briefly:

  • Congratulations to Deputy Solicitor General Edwin Kneedler, the recipient of the 2014 Service to America Award for career achievement. Lillian Cunningham of The Washington Post covers the awards.
  • In The National Law Journal (subscription or registration required), Tony Mauro reports on a recent speech in Nebraska by Chief Justice John Roberts, who (among other things) encouraged lawyers to reduce the length of their Supreme Court briefs.
  • In the Supreme Court Brief (subscription required), Mauro also reports on an event – attended by Justices Ruth Bader Ginsburg and Sonia Sotomayor – celebrating the publication of a new book by Judge Robert Katzmann of the Second Circuit. Mauro describes the book “as a counter-punch to U.S. Supreme Court Justice Antonin Scalia’s views on how to interpret statutes.”
  • At ACSblog, Brandon Garrett urges the Court to grant review (again) in the case of Texas death row inmate Scott Panetti tomake clearer than it did already in Panetti’s case years ago that the Eighth Amendment forbids the state to execute individuals who are medically diagnosed as psychotic.”
  • At Bloomberg News, Greg Stohr reports on Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a petition scheduled for review at the Justices’ Conference on Monday. At issue in the case is whether it is enough for plaintiffs bringing lawsuits under the Fair Housing Act to allege that policies or laws have a discriminatory impact – a question that the Court has already agreed to review twice.
  • At FiveThirtyEight, Harry Enten pushes back against Justice Ruth Bader Ginsburg’s assertion (which I covered in yesterday’s round-up) that – if she were to retire – the president would not be able to appoint someone like her; based on a model that he created, he asserts that “a nominee like her would be a heavy favorite to make it through the Senate.”
  • In the New Republic, Yishai Schwartz compares the approaches of the Seventh and Tenth Circuits, both of whom struck down state bans on same-sex marriage but for different reasons, and urges the Court to follow the Tenth Circuit.  Such an approach “would be both a more profound embrace of gay couples, and a more universal expression of social values.”
  • At Reason’s Hit and Run Blog, Damon Root argues that the Court should grant cert. in Heffner v. Murphy, a case scheduled for the September 29 Conference in which it has been asked to consider a challenge to a Pennsylvania law regulating funeral homes.

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Petition of the day

By on Sep 25, 2014 at 10:10 pm

The petition of the day is:

13-1309

Issue: Whether, when the district court disposes of a motion for a new trial while an appeal is pending in the court of appeals, a defendant must file a second notice of appeal in order for the court of appeals to have jurisdiction to consider the issue that was before the district court in the motion for a new trial.

 
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UPDATED Friday 5:11 p.m.  Justice Elena Kagan has called for a response to the state officials’ application (14A 336) by 5 p.m. Saturday.  She cited the uncertainty about when the Sixth Circuit would act on a pending plea by state officials for en banc rehearing, as well as timing issues.  Her order made no mention of the separate delay request by the state legislature (14A337), presumably because the Sixth Circuit did not rule on a separate appeal by the legislature, but treated the legislature as only an amicus in the state officials’ case.

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Faced with a court order to allow voters in Ohio to start casting ballots next Tuesday for this year’s general election, state officials on Thursday asked the Supreme Court to temporarily block that requirement, and to consider taking on the dispute itself immediately.  A federal judge, with approval from the U.S. Court of Appeals for the Sixth Circuit, has told the state to provide thirty-five days of early-voting opportunity, seven more than state officials had planned.

The application (DeWine v. Ohio State Conference of the NAACP, 14A336) argued that the court order intrudes deeply into the state’s power to run elections, and does so based upon flawed readings of the Constitution and federal voting rights law.  The Ohio legislature also has filed its own plea for delay (14A337).

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Two conflicting federal trial court rulings on same-sex marriage — one in Texas in favor, one in Louisiana against — will be heard by the same panel of appellate judges, but in separate hearings, the U.S. Court of Appeals for the Fifth Circuit ordered on Thursday.  The order moves along the constitutional controversy in a federal appeals court that has not yet ruled on it.

The members of the three-judge panel have not yet been named for the Texas case.  But, given the overall makeup of the Fifth Circuit, it is widely assumed that a state’s ban on same-sex marriage will have a strong chance of being upheld in that circuit.  So far, no federal appeals court has sustained a ban on such marriages.  If a split does develop, that could enhance the prospects that the Supreme Court would take on the issue — if it has not yet done so by the time further appeals court rulings emerge.  The Court takes its first look at new marriage cases next Monday, at its private Conference.

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Event announcements

By on Sep 25, 2014 at 5:03 pm

The Washington Legal Foundation will host a preview of the upcoming Term on October 1 from 1:30-2:45 p.m. The event will also be webcast. More information is available here.

Also on October 1, UC Hastings will host a review of the last Term and preview of the upcoming Term from 3:30-5 p.m. More information is available here.

On October 2, from 5-7 p.m., the DC Bar’s Section on Criminal Law and Individual Rights will host an event on the Fourth Amendment and privacy in the digital era, focusing on the last Term’s decision in Riley v. California. More information is available here.

The United States Chamber of Commerce invites credentialed members of the press to its pre-Term media briefing on October 3 from 9:30-11 a.m. Please register via email (press@uschamber.com) or by telephone (202-463-5682).

The University of Oregon School of Journalism and Communications will host a daylong conference commemorating the fiftieth anniversary of the Court’s decision in New York Times v. Sullivan.  More information is available here.

 
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A plan to settle a significant case over losses from investing in mortgage-backed securities should not keep the Supreme Court from going ahead to decide a related but separate dispute, lawyers involved told the Court on Thursday.

The Court on Tuesday had called for new briefs on whether it should proceed with Mississippi Public Employees’ Retirement System v. IndyMac MBS — set for argument on October 6, the opening day of the new Term.  The new briefs, filed in the form of letters to the Court, are here, here, and here.

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Thursday round-up

By on Sep 25, 2014 at 8:01 am

Justice Ruth Bader Ginsburg is once again in the news for her response to calls for her to retire from the Court to allow President Obama to appoint her successor.  Elle (and, yes, I’m pretty sure this is the first time we have included the magazine in the round-up) posts excerpts from an interview with the Justice, including her statement that, if she were to resign this year, the president “could not successfully appoint anyone I would like to see in the court.”  And in The New Yorker, Amy Davidson discusses the interview and weighs in on the retirement issue, urging Democrats who want to ensure that a Democratic president can appoint Ginsburg’s successor to “win the next election; battle it out, rather than fretting and sighing about how an older woman doesn’t know when it’s time to go.” Continue reading »

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