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The role of politics on the bench; focusing on education; the Roberts Court, the Supreme Court, and the historical arc of race and ethnicity; and a timeline for getting out of the classification business.

In this five-part interview, Edward Blum – Visiting Fellow at the American Enterprise Institute and Founder and President of the Project on Fair Representation – discusses his background, running for Congress, and moving from public finance to political advocacy to Supreme Court litigation; the meeting of race, ethnicity and religion; the desire to “make big law” and how to read Supreme Court signals; and success building cases from the ground up – from Bush v. VeraNAMUDNO v. Holder, and Shelby County v. Holder to Fisher v. University of Texas at Austin and beyond – with “people of good will.”

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Petition of the day

By on Aug 12, 2014 at 10:13 pm

The petition of the day is:

Spokeo, Inc. v. Robins
13-1339

Issue: Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

Commentary

In sports, a “streak” can say a lot about talent, endurance — and plain luck.  Cal Ripken, Jr., of the Baltimore Orioles set a major league baseball record by playing in 2,632 consecutive games.  The University of Connecticut’s women’s basketball team owns the longest string of victories in the college basketball ranks — ninety games in a row.

In law, attorney Thurgood Marshall had a string of victories (sometimes interrupted by defeats) in his campaign to achieve racial desegregation in public education, and attorney Ruth Bader Ginsburg did much the same in advancing the women’s rights revolution.  But perhaps nothing in constitutional history matches the swiftly developing “streak” of court rulings in favor of same-sex marriage.  Still, the actual meaning of that “streak” is open to debate — even about whether it is a streak.  Let’s try to sort it out, simply.

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The University of Texas, renewing its defense of its freshman class admissions policy, contended on Monday that the ongoing court battle has become nothing more than an “ideological struggle” over well-established Supreme Court precedent allowing some use of race in selecting new students.

The brief was in response to a request by a white applicant denied admission, who is seeking en banc rehearing of a new round in her challenge at the U.S. Court of Appeals for the Fifth Circuit.  The challenger, Abigail Fisher, has the support of a dozen amicus briefs.  Her case is back before that court after a trip to the Supreme Court.

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Tuesday round-up

By on Aug 12, 2014 at 7:47 am

Yesterday Chief Justice John Roberts spoke at the annual meeting of the American Bar Association in Boston, where he urged both courts and lawyers to “rise above” partisanship.  Coverage of the speech comes from Scott Malone of Reuters and Zachary Sampson of the Boston Globe.

In The Economist, Steven Mazie discusses recent comments by Justice Ruth Bader Ginsburg, who in an interview with Katie Couric of Yahoo! News suggested that some of her colleagues have a “blind spot” on women’s issues, and he considers possible causes for what he characterizes as “gender insensitivity.”  At Slate, Dahlia Lithwick discusses the Justice whom she describes as the Court’s “fourth feminist” – Justice Stephen Breyer — lamenting that although Breyer “has consistently voted alongside the court’s three women on virtually all gender issues . . . nobody has yet made a Tumblr for him.”  In USA Today, Richard Wolf marks Breyer’s twentieth anniversary on the Court, observing that, “[p]erhaps more than anyone else in Washington . . . Breyer is a believer in the democratic system.”  Continue reading »

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Petition of the day

By on Aug 11, 2014 at 10:11 pm

The petition of the day is:

Runyon v. United States
13-254

Issue: (1) Whether, in order to demonstrate that evidentiary errors in a capital sentencing proceeding were harmless, the government must establish that the errors did not affect the verdict of the jury that actually heard the case or whether the government may instead meet its burden by demonstrating that such errors would not have affected a hypothetical, reasonable jury; and (2) whether, under the cumulative error doctrine, a reviewing court must reverse if the government cannot establish that preserved errors are harmless beyond a reasonable doubt, or is reversal required only if the errors “so fatally infect[ed] the trial that they violated the trial’s fundamental fairness.”

 
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For the first time in nearly fourteen months, a state’s ban on same-sex marriage has withstood a constitutional challenge in court.  A state judge in Tennessee ruled last week that “neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility.”  The decision, issued last Tuesday, has just become available in electronic format.

Roane County Circuit Judge Russell E. Simmons, Jr., of Kingston ruled in a case of two gay men who were married four years ago in Iowa and are now seeking a divorce in their home state of Tennessee.  Unlike every other court ruling — federal or state — since the Supreme Court’s decision in United States v. Windsor in June 2013, the judge rejected the idea that the Windsor decision undercut state authority to ban same-sex marriages. Continue reading »

The Supreme Court on Monday asked an attorney disciplinary panel in Pennsylvania to sort out a dispute among lawyers over a death penalty appeal that an inmate has said he did not want filed.  In an order included with the Court’s second round of summer recess actions, the Justices referred the case of Michael E. Ballard to the Pennsylvania Supreme Court Disciplinary Board, to investigate or take “action it finds appropriate.”

The Court’s file in the case, including several letters, news articles, and a state Supreme Court’s opinion, is contained here and here.  (The file must be read from front to back for continuity and sequence.)

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The following is a series of questions posed by Ronald Collins on the occasion of the publication of Citizens Divided: Campaign Finance Reform & the Constitution by Robert C. Post, with commentaries by Pamela Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati.

Welcome, Robert. 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, which comes on the heels of Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.

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Petition of the day

By on Aug 8, 2014 at 10:11 pm

The petition of the day is:

Mehanna v. United States
13-1125

Issue: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

 
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