Petition of the day

By on Oct 28, 2014 at 10:11 pm

The petition of the day is:

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Issue: Whether a state’s reduction of medical benefits to some categories of legal aliens but not others, conducted within the discretion afforded to the states by Congress under the cooperative Medicaid program, is subject only to rational-basis review when it is challenged as a denial of equal protection.

 
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The Obama administration’s attempt last summer to find a new way to give religious non-profit groups an exemption from the new health care law’s mandate for birth-control services did not go far enough, a federal judge in Florida decided in a temporary ruling on Tuesday.  U.S. District Judge James S. Moody, Jr., of Fort Myers blocked enforcement of the rules against a Roman Catholic college, Ave Maria University, until a court trial on the dispute.

The release of the government’s new rules on August 22, and their challenge by the Florida college located in the town of Ave Maria near Naples, followed the Supreme Court’s ruling in July  in a case involving another religious college, Wheaton College in Illinois.  The Justices spared non-profits from having to send in a formal document to claim the exemption from the contraceptives mandate.   (The Wheaton College case arose after the Supreme Court, in the case of Burwell v. Hobby Lobby Stores, gave closely held religious corporations, operating as for-profit businesses, an exemption from the contraceptive mandate.)

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Five Puerto Rican same-sex couples and a gay rights advocacy group on Tuesday began an uncertain trip to a federal appeals court, where a potential obstacle to their marriage plea may await them.  Their lawyers filed a formal notice that they are appealing to the U.S. Court of Appeals for the First Circuit in Boston, to challenge a ruling a week ago by a judge upholding Puerto Rico’s ban on same-sex marriage.

Two years ago, the First Circuit said flatly that it was still required to follow the Supreme Court’s summary, one-sentence ruling in 1972, in the case of Baker v. Nelson.  That ruling, it said, is “binding precedent” which bars an argument that there is “a constitutional right to same-sex marriage.”  And, it noted, the Supreme Court has not overturned that ruling in more recent gay rights decisions.  The Baker decision said without elaboration that a plea for a right to marry a same-sex partner did not raise “a substantial federal question.”

The question now is whether the First Circuit will continue to adhere to that view, in the face of a broad wave of federal court decisions indicating that Baker v. Nelson no longer remained an obstacle to striking down state laws against same-sex marriage.   If the First Circuit holds fast, it could set up a split on this issue that could lead the Supreme Court to step into the same-sex marriage controversy in a way that it has so far avoided.

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At its Conference on October 31, 2014, the Court will consider petitions seeking review of issues such as a judge’s mandatory duty of self-disqualification under the federal recusal statute, proof of causation in an antitrust action, and the availability of federal tax subsidies to individuals who purchase health insurance on an exchange operated by the federal government.

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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Tribe5

Assessing the Roberts Court’s divergent tack on race and gay rights.

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

In this six-part interview, Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses his background, from his birth in Shanghai, China during World War Two and his early interest in mathematics to teaching presidents and Supreme Court Justices and arguing cases before the Supreme Court; the inspiration and purpose of his latest book, Uncertain Justice: The Roberts Court and the Constitution , written with former student Joshua Matz; and understanding essential, accessible points of the Supreme Court, principles in constitutional law and leading issues of the day — “Obamacare,” racial equality, gay rights, campaign finance, and the relation of privacy and technology.

Posted in Everything Else
 
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Bradley W. Joondeph is the Inez Mabie Distinguished Professor and Associate Dean for Academic Affairs at the Santa Clara University School of Law.

How broad is the states’ power to impose personal income taxes on their own residents? More specifically, what steps does the Constitution require of states, if any, to ensure that such taxes do not result in the multiple taxation of income earned by their residents in other states? That is the crux of the question in Comptroller v. Wynne, scheduled for oral argument on November 12.

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Tuesday round-up

By on Oct 28, 2014 at 6:31 am

Briefly:

  • At The Huffington Post, Zach Carter reports on recent comments by Senator Chuck Schumer (D-N.Y.), who in an interview over the weekend argued that, if Democrats lose their Senate majority in the midterm elections, the Supreme Court could block Democratic policy initiatives for years to come.
  • In The New York Times, Adam Liptak covers the weekend appearance at Yale Law School by Justices Clarence Thomas, Sonia Sotomayor, and Samuel Alito, all of whom graduated from the school.
  • And in his Sidebar column, Liptak discusses the Court’s recent orders in cases involving, for example, same-sex marriage and voter identification, noting that “[j]udges and lawyers who used to have to try to make sense of endless, opaque opinions now have to divine what theSupreme Court’s silence means.”
  • At Balkinization, Brianne Gorod weighs in on King v. Burwell, the challenge to the availability of federal tax subsidies to individuals who purchase health insurance on an exchange operated by the federal government. She contends that, although “[p]eople following these challenges will no doubt be waiting for the Court’s decision with bated breath, . . . there shouldn’t be much suspense.  If the Court follows its usual practices and procedures, it won’t grant review.”
  • At UCLA Law Review’s Discourse, Joshua Teitelbaum analyzes last Term’s decision in Navarette v. California, in which the Court held that a traffic stop prompted by an anonymous but reliable tip to 911 complied with the Fourth Amendment because the officer had reasonable suspicion that the truck’s driver was intoxicated, using probabilistic reasoning.
  • At Hamilton and Griffin on Rights, Leslie Griffin and Marci Hamilton list their “top ten” objections to the regulations promulgated by the Department of Health and Human Services in the wake of last Term’s decision in Burwell v. Hobby Lobby.

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

Posted in Round-up
 
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Petition of the day

By on Oct 27, 2014 at 10:15 pm

The petition of the day is:

14-132

Issue: Whether this Court has “clearly established,” within the meaning of 28 U.S.C. § 2254(d)(1), that where a state appellate court concludes certain pretrial statements should have been excluded from the prosecution’s case under Miranda v. Arizona, the court’s harmless error analysis must ignore the fact that the defendant also took the stand at trial and admitted the conduct involved in the offense.

Posted in Everything Else
 
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Tribe4

Coercion versus a wink and a nudge. What the Supreme Court did in deciding “Obamacare” and why the results are not as surprising as one might think.

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

In this six-part interview, Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses his background, from his birth in Shanghai, China during World War Two and his early interest in mathematics to teaching presidents and Supreme Court Justices and arguing cases before the Supreme Court; the inspiration and purpose of his latest book, Uncertain Justice: The Roberts Court and the Constitution , written with former student Joshua Matz; and understanding essential, accessible points of the Supreme Court, principles in constitutional law and leading issues of the day — “Obamacare,” racial equality, gay rights, campaign finance, and the relation of privacy and technology.

Posted in Everything Else
 
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Robert A. Katzmann - Judge, U.S. Court of Appeals for the Second Circuit of New York

Chief Judge Robert A. Katzmann

 

The following is a series of questions posed by Ronald Collins on the occasion of the publication of Judging Statutes (Oxford University Press), by Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit.

Welcome, Chief Judge Katzmann.  Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book and for all the attention it has received, including your C-SPAN interview with Brian Lamb, a review essay by retired Justice John Paul Stevens, commentaries by Jeffrey Toobin (The New Yorker) and Norman Ornstein (The Atlantic), and Tony Mauro’s story in The National Law Journal.     

Question: You have long been concerned with the relationship between courts and Congress, this from the perspective of a trained political scientist, academic, and judge. How did you become interested in the subject?

Katzmann: My interest in courts and Congress goes back quite a while, from the time I was very young in my career. In 1984, Judge Frank M. Coffin — then chair of the U.S. Judicial Conference Committee on the Judicial Branch, a committee concerned in part with enhancing inter-branch understanding — asked if I might assist the Committee in developing an agenda that would examine past, present, and future relations between the courts and Congress. I was then doing interdisciplinary work (having a Ph.D. in government from Harvard and a J.D. from Yale) at the Brookings Institution. The opportunity to work with Judge Coffin was irresistible. He was a former legislator, someone I greatly admired as a judge. That is why I was so attracted to the idea of becoming involved with him in matters vital to an independent judiciary. That led to a series of projects, books, and articles over the next fifteen years, while I was at Brookings, Georgetown, and the Governance Institute. Continue reading »

 
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