Law school, clerking for Judge J. Edward Lumbard of the U.S. Court of Appeals for the Second Circuit, and how not getting an ACLU fellowship was a good way to start a career.

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.

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Ruling that the Supreme Court has not barred all use of race in choosing the entering class of students at state universities and colleges, a federal appeals court on Tuesday upheld — for a second time — the admissions policies at the University of Texas in Austin.  The two-to-one decision by the U.S. Court of Appeals for the Fifth Circuit followed the Supreme Court’s return of the case of rejected white applicant Abigail Fisher for a focused new look at the need for a race factor.

Ms. Fisher’s lawyers said that they planned a new appeal to challenge this latest decision against her challenge to the university’s current admission plan.  The lawyers did not specify whether they would return directly to the Supreme Court or instead first attempt to get a new review by the full Fifth Circuit sitting en banc.

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Memoirs_of_Sherlock_Holmes_1894_Burt_-_Illustration_2Are Sherlock Holmes and Dr. Watson still under a legal cloak (or cape, if you will) of copyright law?  The Supreme Court may have to solve that mystery, to decide a new legal plea filed Tuesday by the estate of Sir Arthur Conan Doyle, the Scottish creator of that fictional detective and his far less colorful companion.

The estate has been attempting to block a California lawyer and Holmes fancier, Leslie S. Klinger, from publishing a new book about the two characters unless he is willing to get a license from the estate and pay a fee.  The U.S. Court of Appeals for the Seventh Circuit rejected the estate’s copyright claim, calling it “quixotic.”  The new filing at the Court, including the Seventh Circuit’s ruling as an appendix, has been docketed as 14A47, and can be read here.

At this point, the Doyle estate is only seeking a delay of the Seventh Circuit’s ruling, until it can file a petition for review of the decision itself.  The Seventh Circuit refused a stay on July 9.  But to deal with the application, the Court will have to decide whether the legal claim has any chance of ultimately succeeding and decide who might be hurt if a stay is, or is not, issued..

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To hear this audio story featuring Kristi Remington, John Elwood, and Deepak Gupta, click the audio player above.


Kali Borkoski:  On June 26, the Court announced its decision in National Labor Relations Board v. Noel Canning, holding that three of the president’s recess appointments to the NLRB were unconstitutional.

Ordinarily, the Constitution requires the president to obtain the advice and consent of the Senate – traditionally in the form of a confirmation hearing and then a vote — before senior government officials and federal judges can take office.

There is an exception, however:  The Constitution empowers the president to act without the Senate’s input to “[f]ill vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the end of the next Session.”

U.S. Senate Chamber

U.S. Senate Chamber 1873

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October arguments, day by day

By on Jul 14, 2014 at 6:28 pm

The Supreme Court on Monday released the calendar of oral arguments for the sitting that begins October 6 — the first public session of the new Term.  A highlight of this sitting will be the argument on October 7 in Holt v. Hobbs, giving the Court another opportunity to rule on claims of religious freedom.

Following the jump is the day-by-day listing, with a summary of the issues at stake.  Arguments begin each day at 10 a.m.; each case is scheduled for one hour.

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In a sweeping new ruling that both expands and limits the power of U.S. military tribunals set up at Guantanamo Bay to try terrorist war crimes, a federal appeals court in Washington nullified two guilty verdicts of a former close aide to terrorist leader Osama bin Laden, and gave partial support to another verdict but ordered it reviewed further.   The ruling — by the U.S. Court of Appeals for the District of Columbia Circuit — runs to 150 pages in five separate opinions. It can be read here.

The ruling did not apply immediately to the ongoing case against five individuals accused of war crimes for the September 11, 2001, terrorist attacks on U.S. soil, but it could affect the range of charges that may go forward in that case.  The decision dealt instead with the convictions of Ali Hamza Suliman al Bahlul, a Yemeni national who was accused of acting as press secretary and propagandist for bin Laden and the Al Qaeda terrorist network.  (bin Laden was killed by a U.S. military team in Pakistan in May 2011.)

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UPDATED 9:05 p.m.  The state attorney general’s office promptly announced that it will be seeking a postponement from the Supreme Court “in the coming days, to avoid uncertainty.” A statement from the office’s communications chief can be read here.


The U.S. Court of Appeals for the Tenth Circuit set the stage on Friday for a quick return by Utah state officials to the Supreme Court, seeking to delay another federal judge’s ruling in favor of same-sex marriage.  This time, the state’s plea will focus on same-sex couples who were married during a brief window of opportunity last winter, before the Supreme Court stepped into the Utah controversy.  State officials have until July 21 to file such a request with the Justices.

The state’s filing would not at this stage draw the Court into the basic constitutional controversy over whether marriage must be open equally to same-sex couples.  Utah officials plan to take that core question to the Court this summer or early fall.  The immediate issue this time will be whether the Justices will put on hold a judge’s ruling in May requiring Utah to recognize some 1,300 same-sex marriages performed between December 23 and January 6.  That ruling has since been put on hold, and will remain suspended at least until the Supreme Court acts.

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Petition of the day

By on Jul 11, 2014 at 10:05 pm

The petition of the day is:

West Virginia ex rel. U-Haul Co. of West Virginia v. Zakaib

Issue: Whether the West Virginia Supreme Court of Appeals violated the Federal Arbitration Act’s severability rule by refusing to enforce an arbitration clause on the basis of a challenge that was not directed specifically to that clause.

Friday round-up

By on Jul 11, 2014 at 7:29 am

Last week’s decision in Burwell v. Hobby Lobby continues to dominate commentary on the Court.  At Hamilton and Griffin on Rights, Marci Hamilton looks at the fallout from the decision and suggests that the rancor which accompanied it “shines a light” on the flaws in the statute at the heart of the decision, the Religious Freedom Restoration Act.  And in Newsweek, Pema Levy considers the effects that the decision may have on discrimination based on sexual orientation.  Continue reading »

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A bill to undo Hobby Lobby

By on Jul 11, 2014 at 12:01 am

With fewer than a dozen crucial words, a group of U.S. senators and representatives this week proposed what they have called a “legislative fix” to undo the Supreme Court’s June 30 decision in Burwell v. Hobby Lobby.  Here is the key language in the Senate version, bill number S. 2578:  ”Application: Subsection (a) shall apply notwithstanding any other provision of federal law, including Public Law 103-141.”

The bill would modify — but without directly amending — the federal law that was the basis of the Supreme Court’s ruling — that is, the Religious Freedom Restoration Act (officially enacted as Public Law 103-141).  The new measure would have the effect of simply overruling the Hobby Lobby decision.  Identical versions were introduced in the Senate and House on Wednesday.

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