Friends, The new Alliance Alert Daily Digest is finally here! You can subscribe to the daily e-mail here: Subscribe to our mailing list * indicates required Email Address * First Name * Last Name *
The New York Times: There are lots of open questions about the road the Supreme Court justices will take to a final decision about whether the Constitution guarantees a right to same-sex marriage. But one thing seems clear: the answer will arrive next June.
Bloomberg View: What happens if conservative Supreme Court justices retire strategically (that is, their departure is timed so that like-minded replacements can be named and confirmed), and liberal justices don’t? The answer is obvious, and depressing for liberals. And yet that appears to be the situation now, and there’s not much anyone can do about it.
The Washington Post: Several news organizations are reporting that Attorney General Eric Holder will step down as soon as his replacement can be named and confirmed. Longtime VC readers may recall that we’ve not always been AG Holder’s biggest fans. Indeed, some of us were critical of Holder even before he was confirmed.
Life News: Attorney General Eric Holder, who is pro-abortion and who used his post in the Obama administration to target pro-life people, will step down from his position when a replacement has been confirmed.
NPR: Eric Holder Jr., the nation’s first black U.S. attorney general, will resign his post after a tumultuous tenure marked by civil rights advances, national security threats, reforms to the criminal justice system and 5 1/2 years of fights with Republicans in Congress.
Slate: One of the oddities of our constitutional system is the random way in which a normal, unremarkable human person can become synonymous with an entire legal rule or principle. The names of the plaintiffs in some of the most famous cases in Supreme Court history may be remembered for centuries. But do we remember their faces?
Via Wall Street Journal (accessible via Google): Those who prevail against the federal government in a lawsuit can sometimes recoup attorneys’ fees under a law called the Equal Access to Justice Act. The government doesn’t have to pay, however, if it can show that its position in the litigation was “substantially justified.”
Slate: Earlier this month, a federal judge ruled BP was not only negligent, but reckless in its operations that led to the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. On Monday, the very same judge issued another order to BP and its legal team—grow up.
National Review: Rejecting incumbent Democrat Robert Cooper, the Tennessee supreme court has selected Herbert Slatery III, the first Republican in state history to serve as the state’s next attorney general, the Tennessean reports.
The New York Times: Democrats have reversed the partisan imbalance on the federal appeals courts that long favored conservatives, a little-noticed shift with far-reaching consequences for the law and President Obama’s legacy.
Prawfs Blawg: Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.
Wall Street Journal: What exactly is a parody? It’s a question that the nation which gave us surrealism would love to know the answer to – and the the European Court of Justice, Europe’s highest court, has come up with one.
The New York Times: The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.
The Washington Post: Some versions of originalism are more elitist and others more populist. For the sake of convenience, I start with the most elitist and work my way through to the opposite side of the spectrum.
The Washington Times: Loretta Rush was formally sworn in Monday as Indiana’s first female chief justice, but her gender hardly was mentioned during the ceremony. “Quite simply, she was the best choice,” Gov. Mike Pence told a crowd of onlookers and media crammed into the law library at the Statehouse shortly before he administered the oath of office to the 56-year-old former juvenile court judge.
Constitution Daily: Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how the process of picking and processing new Justices of the Supreme Court has only grown more politically sensitive in recent years.
SCOTUS Blog: On September 1, the Court will put into place a new staffing structure for the Clerk’s office. With the retirement of Chris Vasil as chief deputy clerk, that position will be abolished.
Public Discourse: In Robert Bolt’s great play, A Man for All Seasons, Thomas More’s daughter confronts him with the ominous news that Parliament has mandated an oath of allegiance to the king. This oath will probably include some reference to the king as head of the Church, which More knows he could not truthfully affirm. Seeking a way out, he asks about the wording of the oath. Daughter Margaret replies that the wording is irrelevant because “we know what it will mean.” More, ever the lawyer’s lawyer, replies: “It will mean what the words say.”
The Detroit News: Just a few years ago, you could count on one hand the number of unanimous opinions. This term, the Michigan Supreme Court spoke unanimously 15 times – roughly 40 percent of our opinions. What does this mean? In resolving some of the most contentious issues involving interpretation of statutes and our constitutions, the seven justices saw eye to eye.
The Washington post: Ever since a divided panel of the U.S. Court of Appeals for the D.C. Circuit held in Halbig v. Burwell that the PPACA does not authorize tax credits and cost-sharing subsidies for the purchase of health insurance on federally established exchanges, most commentators have assumed that the decision would be reversed by the full D.C. Circuit, rehearing the case en banc. Senior Judge Harry Edwards even called the majority’s decision a “proposed judgment” in his dissent.
Reuters: U.S. judges have their work cut out for them untangling a legal knot created on Tuesday when two federal appeals courts released conflicting rulings hours apart going to the heart of the role the federal government will play in Obamacare.
The Washington Times: President Barack Obama’s health care law is snarled in another big legal battle, with two federal appeals courts issuing contradictory rulings on a key financing issue within hours of each other Tuesday.
Breitbart: President Obama’s un-Constitutional practice of lawlessly ignoring and rewriting laws to suit his left-wing political agenda has come back to bite his signature domestic achievement. Tuesday morning a federal appeals court dealt what USA Today describes as a “potentially major blow” to ObamaCare with a 2-1 ruling against the Obama administration’s end-run around Congress to disburse federal subsidies.
The Washington Post: A handful of times every year, the Supreme Court summarily reverses an opinion below. That is, on the basis of the petition for certiorari and the opposing brief, the court decides to just issue a merits opinion without ever accepting merits briefing or oral argument.
Christian News Wire: Last Friday, the Fourth Circuit Court of Appeals rebuffed the trial court again explaining that the federal statute authorizing the fee award was intended to protect those like the pro-life advocates who are forced to engage attorneys to fight for their civil rights in court, and that no special circumstances exist that justify the trial court’s denial of fees. Alliance Defending Freedom provided funding in support of this important victory.
In 2005, pro-life advocates Steve Lefemine and Columbia Christians for Life fought for their right to engage in free speech regarding abortion. The appellate court has now ordered the trial court to award the pro-life advocates the fees they are entitled to both as the victors of the initial law suit as well as those required to appeal the trial court’s obstinate rulings. The matter is now back before the trial court to determine the amount of the award.
SCOTUS Blog: Anyone who follows the Supreme Court knows that its docket is driven by its interest in resolving circuit splits. But harder questions lurk behind that observation. Does the Court usually agree with the majority of circuits’ views on a contested questions, does it side with the minority, or does it reach an entirely independent conclusion?
Journal Star: A federal judge who got national attention last year for telling Congress where to go in his blog has made waves again by offering unsolicited advice to the U.S. Supreme Court on the heels of its controversial Hobby Lobby decision.
Above the Law: This time around, everyone and their mother and their dog mistook the SCOTUSblog Twitter feed for an official Twitter feed of the U.S. Supreme Court in the wake of the Hobby Lobby decision. Members of the public were enraged, and took to the social media platform to shake their virtual fists in anger in tweets directed at SCOTUSblog.
SCOTUS Blog: Today we are happy to present the final SCOTUSblog Stat Pack for October Term 2013. Weighing in at sixty-two pages, this is also our most comprehensive Stat Pack released to-date.
The Washington Times: When the Supreme Court ruled last year in United States v. Windsor that Section 3 of the federal Defense of Marriage Act was unconstitutional, it announced that its “opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Because the definition and regulation of marriage has almost exclusively been within the province of the States, the Court noted repeatedly, it violated equal protection for the federal government not to give the same recognition to same-sex marriages sanctioned by a particular state that it gave to heterosexual marriages. On that reasoning, States that choose a different policy judgment about marriage, one that would preserve marriage as an institution between one man and one woman, should remain free to do so.
National Review: Chris Christie rose to national prominence in 2010 in part on his reputation for taking on unpopular battles, entrenched interests, and vocal critics at town-hall meetings across his heavily Democratic state.
The Federalist: The First Amendment and executive power are the major themes for this term’s remaining cases. Here is the run-down on the most important cases yet to be decided this term. Monday, June 23, is the Court’s next official decision day, with more decisions likely to be handed down later in the week.
AP: Corporations are claiming the right to exercise religious objections to covering women’s contraceptives under their employee health insurance plans, despite the new health law’s requirement that birth control be among a range of no-cost preventive services included in health plans.
National Review: The Supreme Court has been pondering for a long time what to do with the pending petition to review Elmbrook School District v. Doe. In Elmbrook, a Milwaukee-area high school decided to hold its graduation ceremony at a large nondenominational church because the school’s cramped gymnasium with no air conditioning lacked adequate space for those coming to see the graduation. Although the graduation contained no religious activity at all, activists still sued the school district, claiming that the mere presence of a cross on the church’s stage rendered the facility constitutionally toxic for the public school event. The Seventh Circuit, sitting en banc, agreed.
Cato Institute: As we head into the last month of the Supreme Court term – the Court releases its final, typically highest profile, opinions the last week of June – it’s time to take a deep breath and survey the lay of the land.
SCOTUS Blog: We are happy to present the next edition of our October Term 2013 Stat Pack. As the Court turns the corner into the last month of the Term, several key trends are beginning to reveal themselves.
Religion Clause: Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.
Above the Law: For most law firms — especially newer firms and start-ups — there is no brand name; that leaves the lawyers as the only assets. And for brand-name law firms, if the talent starts to leave, eventually the brand dies.
Orin Kerr at The Volokh Conspiracy: “In the last five years, legal education has witnessed a dramatic reduction in demand. Applications are down, forcing many schools to shrink class size and discount tuition to attract students through “merit” scholarships (and more recently, in rare cases, across-the-board tuition cuts). With income down, schools must cut expenses, the largest chunk of which are faculty salaries. Many schools have encouraged senior faculty to retire, and faculty hiring across the board has been sharply curtailed. As I see it, we’re seeing a return to the period before the boom decade of about 1999-2009. In that window, many law schools had lots of extra cash that they spent on new buildings, better amenities and more and better-salaried professors. The boom is over, and a lot of schools are trying to adjust.”
The Denver Post: “President George H.W. Bush had appointed University of Notre Dame graduate Paul J. Kelly Jr., and Bush’s son George W. Bush selected Jerome Holmes, who has an impeccable conservative track record in writing death penalty and affirmative action case law, Leong said. But Holmes, the first black jurist to serve on the 10th Circuit, did something recently that stunned court watchers: When conservative stronghold Utah petitioned the 10th Circuit to stay a federal judge’s decision striking down that state’s gay rights ban, Holmes said no.”
Politico: “Problems getting judges confirmed by the Senate have been a constant complaint for this White House — but this week, President Barack Obama’s aides are celebrating a confirmation count that outpaces President George W. Bush’s.”
The Hill: “Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a crucial campaign finance restriction. And it’s just one in a string of cases in which Thomas could be dragging the court toward his way of thinking.”
Jonathan H. Adler at The Volokh Conspiracy: “With its jurisdiction at an end, the federal judicial panel on judicial conduct referred the matter to the Justice Department. Over the weekend, however, it was reported that the Justice Department will not pursue charges. The case against Judge Martin is now apparently at an end.”
9th Circuit press release: “The United States Senate today confirmed President Obama’s nomination of Los Angeles attorney John B. Owens to serve as a judge of the U.S. Court of Appeals for the Ninth Circuit. Confirmation came by a vote of 56-43.”
The Dallas Morning News: “The Senate Judiciary swiftly approved the nomination of Texas Judge Gregg Costa Thursday, sending his fate to the hands of the full Senate. Costa, a federal district judge in Galveston, is up for a seat on the 5th Circuit Court of Appeals. He passed the committee with a voice vote and no senators voiced opposition.”
Philadelphia Inquirer: “Rabner’s seven-year term ends in June, and Christie has not announced plans to renominate him. While the Republican governor hasn’t said he will remove Rabner, a Democrat, he has spoken of a need to reshape the state’s high court, which he decries as ‘out of control’ and unaccountable to the public. Last summer, he publicly criticized one of Rabner’s decisions.”
Seattle Post-Intelligencer: “State Supreme Court Justice Jim Johnson, the high court’s lone outspoken conservative, announced Monday that he will retire from the court on April 30. Johnson has been absent, due to illness, for much of the court’s current term. Once a top aide to then-Attorney General Slade Gorton, he is serving his second term on the high court and would have been up for reelection in 2016.”
Matthew J. Franck at Public Discourse: “For Justice Clarence Thomas, the foundation of all our law lies in the self-evident truths of the Declaration of Independence, beginning with human equality.”
Los Angeles Times: “Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June. She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.”
James Taranto at the Wall Street Journal: “What would happen in the Senate if Ginsburg, Breyer or both retired this spring, as Bernstein advises? Unlike in 1968, the number of conservative Senate Democrats is somewhere between zero and very few, so an Obama nominee ought to be able to command a majority in a 55-45 Democratic Senate. But it could be an uncomfortable vote for those who represent heavily Republican states, especially the five of them who will face the voters in November. That’s especially true if Ginsburg and Breyer retire simultaneously, raising the appearance of concerted politicization of the court.”
Jonathan Bernstein at Bloomberg: “What Ginsburg and Breyer want, of course, is up to them. If their goal is to serve on the court as long as possible, then they should stay. Both, I should note, seem to be at the top of their games. Breyer, 75, and Ginsburg, who will turn 81 this week, might have a dozen or more years to go.”
American-Statesman: “The U.S. Senate Judiciary Committee delayed taking up the nomination of Gregg Costa as a judge on the 5th U.S. Circuit Court of Appeals. A vote on four other nominees also was delayed and will take place in two weeks, said Sen. Patrick Leahy, chairman of the committee”
Topeka Capital-Journal: “Kline’s request, filed Monday in Washington, D.C., argued the disciplinary case against him was prejudiced by actions of judicial branch members unhappy that he engaged in criminal investigation of Kansas abortion providers. It is unclear how far the U.S. Supreme Court’s jurisdiction extends to modify Kline’s suspension.”
The Salt Lake Tribune: “The U.S. Senate on Wednesday unanimously confirmed Utah Court of Appeals Presiding Judge Carolyn McHugh to the 10th Circuit Court of Appeals, making her the first woman from Utah to serve on the federal appellate panel.”
Alaska Dispatch: “In a rare political statement, the Alaska Supreme Court has come out against legislative efforts to change Alaska’s judicial nomination process. But that political role for the justices has now drawn criticism, too, with one legislator saying he was “appalled” at the court’s involvement in politics.”
The Salt Lake Tribune: “The Senate is expected to confirm the appointment of Utah Court of Appeals Presiding Judge Carolyn McHugh to the 10th Circuit Court of Appeals on Wednesday.”
Wall Street Journal: “More than half a dozen state attorneys general, all Democrats, have dropped their defense of anti-gay-marriage laws, concluding that legal precedents in the wake of the 2013 Supreme Court opinion invalidating provisions of the federal Defense of Marriage Act leave them no recourse. The latest was Kentucky’s Jack Conway, who said this past week he wouldn’t appeal a federal judge’s decision striking down a state law denying recognition to same-sex couples married in other states.”
Ed Whelan at National Review: “Next Friday, March 14, the Heritage Foundation will be hosting an event titled ‘Dereliction of Duty: State Attorneys General Failing to Defend Marriage Laws in Court.’”
Honolulu Star-Advertiser: “In a unanimous vote of confidence, the state Senate Judiciary and Labor Committee on Thursday recommended the confirmation of Circuit Judge Michael Wilson for the state Supreme Court.”
Reuters: “Lu Ann Ballew was found guilty of violating judicial canons regarding impartiality and bias by a six-member panel of the Tennessee Judicial Board of Conduct. She was fired in January after being cited for religious bias in her decision.”
DeGirolami, Marc O. and Walsh, Kevin C., Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (February 21, 2014). Available at SSRN: http://ssrn.com/abstract=2399487 or http://dx.doi.org/10.2139/ssrn.2399487
Washington Examiner: “After his speech . . . Holder returned for a question-and-answer session. Tom Horne, the attorney general of Arizona — a man who has his hands full if there ever was one — asked Holder a question. The adversarial system requires that in a lawsuit, two sides make their case, after which a judge makes a decision that everyone agrees to abide by. But on the marriage issue, Holder is advocating that one side not show up. . . . To the surprise of some listeners, Holder said yes — someone should defend a state’s marriage laws in court, and it is the attorney general’s job to make that happen.”
Wall Street Journal: “Here’s some good news for law students set to graduate this year: The job-offer rate for those lucky enough to have landed a summer job at a law firm in 2013 is nearly as high as it was before the financial crisis.”