In a recent essay, William Baude attempts to articulate a unifying theory for the Court’s sovereign-immunity jurisprudence, building on a theory first proposed by Stephen Sachs.  But as Baude admits, this intellectually elegant rationale will fall apart if the Court overrules Nevada v. Hall – holding that states have no sovereign immunity from suit in the courts of their sister states – as it appears poised to do this Term in Franchise Tax Board of California v. Hyatt.

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Thursday round-up

By on Jan 28, 2016 at 7:00 am

At Verdict, Michael Dorf echoes Justice Elena Kagan’s skepticism in the recent oral argument in Heffernan v. City of Paterson about the possibility of sharply distinguishing (for First Amendment purposes) between rules and reasons. On his own blog, Dorf discusses the legal scholarship relevant to the case.

At Vox, David Roberts explains Monday’s ruling that the Federal Power Act provides the Federal Energy Regulatory Commission with the authority to regulate wholesale market operators’ compensation of demand response bids, asserting that it will “give demand response — a way of coordinating people to not use energy at certain times — a huge boost, which in turn will help reduce carbon emissions and the price of electricity.”  At the Guarini Center, Matthew Christiansen suggests that, although “the decision is, first and foremost, a significant victory for the FERC and its efforts to support demand response, it also goes a long way toward clarifying the legal regime governing the FERC’s exercise of its jurisdiction more generally.”

Coverage of Murr v. Wisconsin, a regulatory takings case in which the Court recently granted review, comes from Bruce Vielmetti, who looks at the human side of the case for the Milwaukee Journal Sentinel; from Chuck Rupnow for the (Eau Claire, Wisc.) Leader-Telegram; and Andrew McIntyre at Law 360.   Commentary comes from Luke Wake, who at NFIB argues that “government cannot manipulate property rights out of existence.”    Continue reading »

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SCOTUSblog is – as we explain in more detail elsewhere on the site – an impartial, journalistic entity that seeks to provide readers with objective information about the Supreme Court and its cases. At the same time, we are in a somewhat unusual position as a news outlet: our publisher, Tom Goldstein, and his law partners regularly appear before the Court, and his firm provides essential financial support for the blog.

To avoid any appearance of a conflict of interest in our reporting, we have adopted a number of policies intended to create a “firewall” between the blog and the firm. Most notably, although Lyle Denniston – an independent contractor who is not an attorney and has never been employed by the firm – once covered the firm’s merits cases for the blog, neither he nor anyone else employed by the blog does so now. But even that arrangement is not ideal for many cases. That’s because many of our merits cases are covered by experts in the field. And while we don’t want those experts to bring their personal views on what the law should be to the table, we do want our experts to call them as they see them – providing our readers, for example, with an objective assessment of which side has the stronger arguments, what the broader implications of the case may be, and (if they feel comfortable doing so) which side seems likely to win. Continue reading »

 
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Wednesday round-up

By on Jan 27, 2016 at 10:16 am

There is more commentary on Monday’s opinion in Montgomery v. Louisiana, holding that Miller v. Alabama – the Court’s 2012 decision prohibiting mandatory sentences of life without parole for juvenile offenders – applies retroactively to cases on state collateral review.  At Hamilton and Griffin on Rights, Leslie Shoebotham concludes that, although the ruling “is a broad decision with constitutional implications that extend beyond its immediate application,” its scope remains to be seen.”  At casetext, Tamar Birckhead suggests that, with the ruling, “the Court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison.”   Continue reading »

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Event announcement

By on Jan 27, 2016 at 9:29 am

On January 27, The George Washington Law Review‘s On the Docket will host a discussion on United States v. Texas. Speakers will include Jonathan Siegel and Joshua Schwartz; Alan Morrison will serve as moderator. More information about the event, which will be held on the George Washington campus and will also be live-tweeted, is available here.

 
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UPDATED 5:15 p.m.    The Chief Justice has called for a response from EPA, due by 3 p.m. next Thursday, February 4.   Meanwhile, a group of sixty utility companies or energy industry trade groups have filed a second application for a stay of the Clean Power Plan, also submitted to the Chief Justice.   Presumably, EPA will respond to both.

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Arguing that the Obama administration is aiming to shut down every last electricity-generating plant that burns coal or oil as fuel, officials of twenty-nine states asked the Supreme Court on Tuesday to block the new policy that the government calls its “Clean Power Plan.”  The officials also claimed that the plan is designed to turn the Environmental Protection Agency into a czar — “the nation’s central energy planning authority” pushing wind and solar power at the expense of older forms of generating capacity.

Unveiled last October, the plan seeks to move generation away from fossil-fueled plants by imposing strict new limits on emission of carbon dioxide.  The protesting states, contending that those limits cannot be met and so the only alternative is to shut down the coal or oil facilities, have challenged the policy at the U.S. Court of Appeals for the District of Columbia Circuit.  The D.C. Circuit is reviewing the dispute on an expedited schedule.  The states turned to the Supreme Court after the D.C. Circuit refused last Thursday to put the plan on hold.

The stay application (docketed as 15A773) was filed with Chief Justice John G. Roberts, Jr., who handles emergency legal matters from the D.C. Circuit.  The Chief Justice can act on his own, or share the stay request with his colleagues.  The states are not seeking to bypass the D.C. Circuit’s review, but only to postpone any implementation of the plan until the D.C. Circuit’s review is completed. If the plan is upheld at the appeals court, it is highly likely that the Supreme Court would review and overturn it, the states contended.

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As seemed clear to me from the oral argument, the Court yesterday unanimously ruled for the government on two questions of federal criminal law. Justice Clarence Thomas’s crisp fourteen-page opinion for the Court carefully avoids controversy. Indeed, more interesting than the answers, perhaps, are the questions affirmatively left “open” in Musacchio v. United States. Within an often-divided Supreme Court, expressly leaving questions open is sometimes the price necessary to retain unanimity.

Two straightforward rulings

Before reviewing the specific facts, here are the two rulings in this case (with a law professor’s immodest editing):

First, “when a jury instruction [correctly] sets forth all the elements of a charged crime but incorrectly adds” another fact or “element” not required by the statute, an appellate challenge to the sufficiency of the evidence under Jackson v. Virginia “should be assessed against the elements of the charged crime, not against the erroneously heightened” elements “in the [erroneous] jury instruction.”

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Tuesday round-up

By on Jan 26, 2016 at 9:10 am

Yesterday the Court released orders from its January 22 Conference and four opinions in argued cases. Molly Runkle rounded up early coverage for this blog.

Additional coverage of yesterday’s ruling in Montgomery v. Louisiana, holding that the Court’s 2012 decision in Miller v. Alabama applies retroactively to cases on state collateral review, comes from NPR’s Nina Totenberg, Jess Bravin of The Wall Street Journal, and Taylor Isaac for JURIST. Continue reading »

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This morning the Court released orders and four opinions. Among them was a holding that Miller v. Alabama, the Court’s 2012 decision prohibiting mandatory sentences of life without parole for juvenile offenders, applies retroactively to cases on state collateral review, a holding that the Federal Power Act provides FERC with the authority to regulate wholesale market operators’ compensation of demand response bids, and a denial in a challenge to a North Dakota law that would have banned abortion in approximately the sixth week of pregnancy.  Mark Walsh has our “view” from the courtroom today.

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It is commonly said that you can never be sure how a case will come down based on what the Justices say at the argument. But that doesn’t mean you can never get any reliable information from the argument. Menominee Tribe of Wisconsin v. United States is a case in which the opinion was just what the comments of the Justices at the argument presaged: a terse and uncompromising rejection of the tribe’s claim.

The case presents the latest installment (on its third go-round at the Court) of a longstanding dispute over the obligation of the federal government to make payments to the numerous Native American tribes affected by the Indian Self-Determination and Education Assistance Act (ISDA). Acting under that statute, various agencies of the federal government signed contracts obligating themselves to make payments to the tribes, but Congress has been reluctant to appropriate funds to make those payments; short of funds, the executive branch responded with a decades-long pattern of litigious foot-dragging.

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