Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect the Court to issue orders from the October 31 Conference; we do not expect the Justices to issue any decisions on the merits.
Our list of "Petitions to watch for that Conference is here.

Applying the Supreme Court’s June decision that raised a major new legal threat to Internet rebroadcast of copyrighted TV programs, a federal judge in NewYork City on Thursday ordered Aereo, Inc., to refrain from relaying video to paying customers while any part of the original show is on the air.  She refused — but will consider later — a broader plea to stop Aereo from storing such programs for later (“time-shift”) viewing by its customers.  (UPDATE: The specific terms of the judge’s order can be read here.)

U.S. District Judge Alison J. Nathan, handling the case after its return from the Supreme Court, confined her ruling to a preliminary order limiting what Aereo may offer its customers in relaying TV programming.   She rejected, at least for now, a plea by the over-the-air broadcasting industry for an order to also prohibit Aereo from copying and storing copyright video for later viewing.  That will be an issue, she said, when she decides the shape of any permanent order if she ultimately rules for the broadcasters on the core legal issue of copyright infringement.

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Tribe2

Two important cases — Richmond Newspapers, Inc. v. Virginia (public access to trials) and Larkin v. Grendel’s Den, Inc. (the First Amendment Establishment Clause and a church’s power to control a liquor license) — in a long career and assessing the problem and real impact of the Supreme Court taking on Bush v. Gore.

“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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Thursday round-up

By on Oct 23, 2014 at 6:43 am

As Lyle reported for this blog yesterday, the Court released a revised version of Justice Ruth Bader Ginsburg’s dissent from the Court’s order allowing Texas to implement its voter identification law.  In the new version, Ginsburg corrected a mistake about whether a particular form of identification – issued by the U.S. Department of Veterans Affairs – would meet the requirements of the new law.  Other coverage of the correction comes from Nina Totenberg of NPR, who notes that it was “the erring justice herself . . . who asked the court’s public information office to announce the error.”  At Crime and Consequences, Kent Scheidegger also discusses the process by which the Court modifies its opinions more generally, and he urges the Court to follow the lead of the California Supreme Court, which issues “modification orders.”  And at The Economist’s Democracy in America blog, Steven Mazie criticizes the Court’s failure to explain the reasoning behind its original pre-dawn order last Saturday.  He contends that,  “[w]hen the stakes are this high, all the justices should follow Justice Ginsburg’s lead and stay up all night to explain to America just what they are up to and why.”

Briefly:

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.

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Petition of the day

By on Oct 22, 2014 at 10:43 pm

The petition of the day is:

14-165

Issue: Whether, when the Federal Sentencing Guidelines calculate a person’s offense level based on prior convictions that are expressly excluded under the relevant federal statute, the statute or the Guidelines control.

 
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Three judges of the U.S. Court of Appeals for the D.C. Circuit listened closely, but noncommittally, on Wednesday to a broad constitutional attack on the system of war crimes tribunals now operating at the U.S. military base at Guantanamo Bay, Cuba.  The hearing — running more than twice as long as the assigned half-hour — ranged over the trial of Abraham Lincoln’s assassins, a military trial in the Civil War, a sabotage trial during World War II, and an 1895 case involving a Chinese national convicted outside of the regular court system.

The point of that exploration was to help the three-judge panel decide whether Congress and the Pentagon have teamed up to create a system of war crimes prosecutions that pushed aside the regular civilian trial courts, in a way that violates the Constitution’s Article III, creating the federal judiciary.  The case heard Wednesday seems destined to go to the Supreme Court.

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Supreme Court Justice Ruth Bader Ginsburg has issued a new version of her dissent, released early Saturday morning in a Texas voting rights case, to fix an error about one kind of ID card that voters can use to qualify to vote.  The revised dissenting opinion, in full, can be read here.

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UPDATED 5:54 p.m.  The Ninth Circuit Court has told lawyers for same-sex couples who challenged the Idaho ban to reply by November 12 to the en banc rehearing petition.

————

After being rebuffed by the Supreme Court and by a federal appeals court on the issue of same-sex marriage, and after saying that the state would no longer resist court orders allowing such marriages, the governor of Idaho on Tuesday night filed a plea for new review by the full U.S. Court of Appeals for the Ninth Circuit.

The plea by lawyers for Gov. C.L. “Butch” Otter, seeking to have a three-judge panel’s decision issued on October 7 wiped out and en banc review to begin, argued that the panel ruling was “judicial policymaking masquerading as law.” Continue reading »

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Tribe1

From birth in Shanghai, China during World War Two to a summa in math at Harvard to a long and distinguished career in legal academe and Supreme Court advocacy.

“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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Wednesday round-up

By on Oct 22, 2014 at 7:37 am

Briefly:

  • At the WLF Legal Pulse, Richard Samp urges the Court to rule on the merits of Dart Cherokee Basin Operating Co. v. Owens, in which it heard oral argument earlier this month,, rather than dismissing it as improvidently granted.
  • 3rd Block With Brian Williams (video) covers recent remarks by Justice Ruth Bader Ginsburg , who told NPR’s Nina Totenberg that nine female Justices would be “enough” women on the Court.
  • At the Volokh Conspiracy, Will Baude weighs in on Supreme Court Justices and the politics of retirement after Richard Re’s post on the topic (which we covered in yesterday’s round-up).
  • In the San Jose Mercury News, Howard Mintz covers a recent visit by Justice Sonia Sotomayor to San Jose State University.
  • At the National Constitution Center’s Constitution Daily, Scott Bomboy looks at politicians who have become Supreme Court Justices, noting that “it’s been a while since a major national political figure joined the Supreme Court.”

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.

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Relying mainly on two legal points that federal courts have repeatedly rejected over the past sixteen months, a federal trial judge in San Juan ruled Tuesday that Puerto Rico’s ban on same-sex marriage survives constitutional challenge.  The combination of a one-line Supreme Court decision in 1972 and the Court’s full-scale ruling in June a year ago on the federal Defense of Marriage Act means that lower courts are required to leave the marriage question to the states (and to Puerto Rico), U.S. District Judge Juan M. Perez-Gimenez declared in a twenty-one-page opinion.

The decision was a clear break with the near-unanimous results of federal trial and appeals courts in the wake of the Justices’ ruling last year in United States v. Windsor – a ruling that said nothing directly about state power to deny marriage for gay and lesbian couples, but has been widely interpreted as if it had said a great deal.  Since Windsor, only one other federal trial judge has upheld such a ban — in Louisiana.

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