NOTE TO READERS: The following post is based on the audiotape of the hour-long hearing Wednesday in the U.S. Court of Appeals for the Tenth Circuit in Denver in the case of Kitchen v. Herbert, on the constitutionality of Utah’s ban on same-sex marriage.  The author of this post was not in the courtroom.  The post explores the issues raised by Circuit Judges Jerome A. Holmes, Paul J. Kelly, Jr., and Carlos F. Lucero, without identifying the judges individually.  The audiotape can be accessed on the main page of the Tenth Circuit’s website.  A written transcript will be available soon.

Analysis

The first hearing by a federal appeals court since the Supreme Court’s ruling last June on same-sex marriage, and the first in the wake of a string of federal trial judges’ rulings striking down state bans on such marriages, pointed strongly on Wednesday toward the issues that seem sure to shape how the controversy will unfold from this point on.

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Relist Watch

By on Apr 10, 2014 at 5:20 pm

John Elwood reviews Monday’s relisted cases.

April is National Poetry Month, and so in honor of this annual effort to put schoolchildren off a basic literary form, we have commissioned “Ode to a Relist”:

A case of importance unique,

A clear split, the Court’s interest was piqued

But just to be sure,

They would ponder some more,

So they said, “Let’s decide it next week.”

We realize that limericks bear the same relationship to poetry that puns do to jokes – both are crimes against humanity – but we have a reputation for tastelessness to keep up.  And hey – you could do worse.

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The importance and quality of Supreme Court oral argument; the influence on the Court of academe and legal blogging; and how advocacy and teaching affect each other.

In this five-part interview, Orin Kerr, Fred C. Stevenson Research Professor of Law at the George Washington Unversity Law School in Washington, DC, discusses his background in mechanical engineering and in law; clerking for Supreme Court Justice Anthony M. Kennedy and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit; working in the Computer Crime and Intellectual Property Section of the U.S. Department of Justice; and teaching law. A scholar of criminal procedure and computer crime law, Professor Kerr talks about how the Supreme Court considers cases, understands legal principle and contends with changing technology; the importance of predictability in law; the institutional position of the Court; and the role of politics in understanding the Court and its membership.

“One thing that I didn’t appreciate until I was a law clerk was the extent to which the Justices are generalists…You just sort of imagine that they have, you know. clear agendas and a sense of, ‘I’m going from here to here to here.’ That’s not generally the case. That’s not the norm. The norm is that they’re generalist Justices.”

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At its Conference on April 18, 2014, the Court will consider petitions seeking review of issues such as suspicionless drug testing as a condition of government employment, the scope of review for claims of qualified immunity, and the Second Amendment right to carry handguns outside the home for self-defense.

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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Thursday round-up

By on Apr 10, 2014 at 9:59 am

Briefly:

  • Richard Wolf of USA Today reports on the current state of play in the challenges to state bans on same-sex marriage, observing that “[t]rying to figure out which will be the case eventually granted by the Supreme Court has become a parlor game in legal circles.” Continue reading »
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Petition of the day

By on Apr 9, 2014 at 10:12 pm

The petition of the day is:

Simmons v. Sabine River Authority of Louisiana
13-815

Issue: Whether the Federal Power Act (FPA) preempts petitioners’ property damage tort and takings claims caused by the operation of the licensee of a Federal Energy Regulatory Commission licensed dam project, where the provisions of the FPA have explicitly saved and reserved such claims to the property owners.

In a case that college sports leaders expect to go to the Supreme Court, Northwestern University on Wednesday asked the National Labor Relations Board to deny undergraduate athletes the status of employees with a right to join a labor union and bargain for salaries and other benefits.  That filing is here.

The university’s appeal to the Board challenged a March 26 decision by a regional NLRB official that Northwestern must treat its football players as employees and hold an election on whether they want to unionize.  That ruling, the university said, “set out to alter the underlying premise upon which varsity sports is based” — that students go to college to be educated, not to work for a living.

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Life as a law clerk for Justice Anthony M. Kennedy and Judge Leonard I. Garth of the U.S. Third Circuit.

In this five-part interview, Orin Kerr of the George Washington University Law School discusses his background in mechanical engineering and the law; clerking for Justice Anthony M. Kennedy and Judge Leonard I. Garth of the Third Circuit; working in the Computer Crime and Intellectual Property Section of the Department of Justice; and teaching law. Kerr talks about how the Court considers cases, understands legal principle and contends with changing technology; the importance of predictability in law; the Court’s institutional position; and the role of politics in understanding the Court and its membership.

“One thing that I didn’t appreciate until I was a law clerk was the extent to which the Justices are generalists.  . . . You just sort of imagine that they have . . . clear agendas and a sense of, ‘I’m going from here to here to here.’ That’s not generally the case. That’s not the norm. The norm is that they’re generalist Justices.”

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Legal scholars spend lots of time parsing Supreme Court opinions, but rarely stop to consider whether the Court’s decisions are implemented as intended.  In a recent essay, Cara Drinan takes a hard look at state practices in the wake of the Supreme Court’s blockbuster decisions in Graham v. Florida and Miller v. Alabama.  In Graham, the Court held that the Eighth Amendment prohibits courts from sentencing a juvenile to life without parole for non-homicide offenses, and in Miller the Court declared that even juveniles convicted of homicide must receive an individualized sentencing hearing at which their youth and other mitigating factors are taken into account before than can be sentenced to life without parole.  Drinan’s essay examines the states’ reactions to these decisions and concludes that many states continue to sentence juveniles to thirty or more years in jail, even for non-homicide offenses, and mostly without the sort of individualized assessment the Court concluded was constitutionally required.

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Wednesday round-up

By on Apr 9, 2014 at 8:02 am

It was one week ago today that the Court issued its decision in McCutcheon v. Federal Election Commission, striking down the aggregate limits that federal law imposed on contributions to candidates for federal office, political parties, and political action committees, but the ruling still dominates coverage of, and commentary on, the Court.  In the Daily Journal (via his Election Law Blog), Rick Hasen discusses the solo concurring opinion filed in the case by Justice Clarence Thomas, while in a post at The Guardian Hasen argues that “[i]t’s about time for Congress to pass some new laws protecting voting rights, and it’s high time . . . for us to dare the supreme court to strike even more of them down.”  Also at Hasen’s Election Law Blog, Brianne Gorod contends that the Chief Justice’s “attempt to portray his decision in” the case “as minimalist actually shows just how far from minimalist it is.”  At Hamilton and Griffin on Rights, Erwin Chemerinsky predicts that “the Court’s decision in McCutcheon portends much more drastic changes in campaign finance law.” And at Angry Bear, Beverly Mann has three posts related to the decision – here, here, and here. Continue reading »

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