Tag Archives: Court: U.S. Supreme

SCOTUS Blog has posted its most recent Petitions to Watch here.

Eugene Volokh at the Volokh Conspiracy: Today’s New York Times has an article by Adam Liptak about Scott v. Saint John’s Church in the Wilderness, the case in which I filed a cert petition recently. In that case, as many readers may recall, the Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying “gruesome images” of aborted fetuses outside a church.

Chicago Tribune: Forty years after the U.S. Supreme Court’s landmark Roe v. Wade case legalized abortion, Justice Ruth Bader Ginsburg said the case is not her “ideal picture” for resolving the controversial issue of abortion.

Democrat and Chronicle: The U.S. Supreme Court on Monday postponed deciding whether to review a prayer case involving the town of Greece.

The Hill: “That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she said Saturday. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

LA Times: Justices have been deciding for weeks whether to take up a Wisconsin case in which a school district was found to have violated the 1st Amendment.

Volokh Conspiracy: As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress . . .  Yesterday, Paul Clement filed his brief on behalf of Ms. Bond. It is an excellent piece of work. Here is a taste . . .

Lyle Denniston at Constitution Daily: If the Constitution takes at least part of its meaning from the way elected officials react to a high-profile public policy issue, the supporters of same-sex marriage have reason to be optimistic right now. In the space of less than a week, Rhode Island and then Delaware became the 10th and 11th states to allow gay marriage (along with Washington, D.C.). But is that a trend that the Supreme Court is ready to advance—or will choose to leave alone to see how it goes?

More information here.

Marvin Olasky at Townhall: Today’s justices have a chance to do not only what’s right but what’s logical: If the Supreme Court affirms states rights on marriage, why not on abortion?

SCOTUS Blog: A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause.  We covered oral arguments here.

SCOTUS Blog’s Live Blog Today reports (Amy Howe): “It appears that the Court (once again) did not act on 12-755, Elmbrook School Dist. v. Doe, the high school graduation case.”

SCOTUS Blog: Supreme Court Justice Stephen G. Breyer, 74, broke his right shoulder Saturday morning in a fall from his bicycle in downtown Washington, the Court said in a news release.

CANewsService: Supreme Court Justice Antonin Scalia told UC students that the Constitution is not a living document to be reinterpreted with every new generation, but a rigid set of rules which can be amended by lawmakers or citizens as society evolves.

Lyle Denniston reports at SCOTUS Blog: The Obama administration asked the Supreme Court on Thursday to restore the President’s power to fill vacancies in government posts when the Senate is out of town. The petition argued that the D.C. Circuit Court got it wrong in January in sharply curtailing that authority.  (The Circuit Court’s ruling — discussed in this earlier post – is attached as an appendix to the petition but also can be read here.)

Peter Schmidt at Chronicle of Higher Education (subscription): Meanwhile, the Alliance Defending Freedom, an advocacy group concerned with religious freedom, and the Foundation for Individual Rights in Education, which focuses on free-speech rights, have submitted a brief expressing fear of the possible repercussions of a ruling against the plaintiff in the lawsuit, a physician suing a public medical school.

SCOTUS Blog has this post of relist petitions to watch. It includes Elmbrook School District v. Doe, 12-755 (fourth relist).

Findlaw: Earlier this week, Chief Justice John Roberts sent Congress proposed changes to all your favorite sets of federal rules: Appellate Procedure, Bankruptcy Procedure, Civil Procedure, Criminal Procedure, and Evidence. Those proposals were posted on the Supreme Court’s website Friday afternoon.

AP: The Supreme Court won’t stop some federal judges from getting cost-of-living increases promised to them by Congress but never paid.

Meir Feder of Jones Day at SCOTUS Blog: The unanimous rejection of a view so firmly established in the lower courts may seem surprising. And yet, at the risk of indulging in 20/20 hindsight, I think that rejection was close to inevitable – at least once the Court decided in Sosa that the ATS did not make all international law violations actionable, and that any cause of action would have to be created “if at all, with great caution,” in a manner akin to the creation of federal common law and implied rights of action.

SCOTUS Blog: Kiobel v. Royal Dutch Petroleum: What’s at stake, and for whom?

SCOTUS Blog: We won’t know more than that until the Court issues its decision, probably in late June, but it seems likely that at least five Justices are poised to agree with the challengers that at least some of the human genes at issue in the case cannot be patented.

Brett Harvey and Joel Oster at the Federalist Society: Tension between the Supreme Court’s holding in Marsh and the dictum in Allegheny has created confusion in the lower courts regarding the proper standard(s) to use when evaluating legislative prayer practices. Central to the confusion is the government’s role in regulating the content of legislative prayers. For courts that apply the endorsement test to the context surrounding a legislative prayer practice, distinguishing between private expression and government expression is critical to the viability of the practice. For courts that apply a historical analysis, as in Marsh, the content of the prayer does not define the analysis absent evidence of government exploitation, irrespective of its classification as government or private expression. The First Amendment is a shield against a government-imposed civil orthodoxy. Legislative prayer is a historic tradition practiced across the country at every level of government. The circuits are irreconcilably conflicted about the application of fundamental, constitutional principles. The current disputes provide the Supreme Court with an opportunity to resolve these conflicts and provide clarity to the law.

AP: The Supreme Court grapples Monday with the question of whether human genes can be patented.

SCOTUS Blog: Now the U.S. Supreme Court is considering whether that was all a big mistake. The court next week will debate whether human genes can be patented, hearing arguments from doctors, patients and scientists who say patents are stifling clinical testing and research

Ed Whelan at NRO: Nearly everyone seems to assume that, if she gets past the standing/jurisdiction issues to reach the merits, Justice Elena Kagan will vote to strike down the federal Defense of Marriage Act and California’s Proposition 8. Somehow clinging to a naïve faith in the power of reason, I continue to hold out a tiny (okay—a very, very tiny) hope that she, and all of the other justices, will instead recognize that DOMA and Prop 8 are constitutionally permissible—that it is legitimate for the federal government in its realm and for the state governments in their realms to maintain the perennial definition of marriage as a male-female union.

Observer-Reporter.com: “We were told under all circumstances that we were inherently equal,” he said, adding that he’s always been perplexed by people who assume he should think a certain way because he’s black. “My family was not inferior. I have never believed it and I never will.”

Reuters: A Supreme Court case that challenges a law requiring anti-prostitution policies for HIV/AIDS programs seeking federal money has generated a split among nonprofit groups that counsel sex workers overseas.

Pittsburgh Tribune: He said he would like to see the high court include justices from law schools other than Harvard and Yale, which dominate the bench today. Thomas went to Yale, with which he has had a contentious relationship. “I’ve been all over the country. … There is something valuable about these people from modest neighborhoods who work their way up,” he said.

SCOTUS Blog has posted its most recent Petitions to watch. Alliance Alert readers may find a couple of cases of particular interest.

SCOTUS Blog: At 10 a.m. next Monday, the Supreme Court will hold a sixty-five-minute oral argument on the control, through patent ownership, of research studies on human genes taken out of the body.

NY Times: “The event is a recognition by a great institution of France of the institution to which I belong, the Supreme Court,” Justice Breyer said after the ceremony on Monday. “Our institutions flow from the enlightenment, and we’ve always seen our institutions working together.”

Carson Halloway at Public Discourse: The oral arguments on Proposition 8 at the Supreme Court suggest that there is very good reason to believe that the declaration of a “right” to same-sex marriage will set us on the path to polygamy.

BuzzFeed: Although most people think sodomy laws have been unconstitutional since the Supreme Court’s 2003 ruling in Lawrence v. Texas, Virginia Attorney General Ken Cuccinelli would like to explain why — in his view — that’s not so.

NY Times Editorial: This may seem like ancient history. But there is a danger now that overblown fears of a backlash based on a false reading of politics before and after Roe v. Wade could lead the Supreme Court to shy from doing as it should — enforcing equal protection by declaring same-sex marriage a constitutionally protected right in every state.

Ramesh Ponnuru at Bloomberg: There’s a story Americans have learned about the Supreme Court, a story that affects the way we view high-profile cases like the ones about same-sex marriage that it heard last week. In this story, the Supreme Court has played a crucial, maybe the crucial, role in our country’s progress toward ever greater freedom and justice. Brown v. Board of Education — the 1954 decision that outlawed separate-but-equal public schools — is central to that story, the shining example of how the court has broadened our constitutional guarantees.

Mercury News: As the U.S. Supreme Court last week weighed its many options in deciding the historic legal battle over gay marriage, the justices repeatedly revealed they are as divided as the rest of the country on when — and whether — to end the furor and give gay and lesbian couples the right to clutch a marriage license.

Newsbusters: Yet, let’s do a flashback to 2009. Kagan was nominated to be the United States Solicitor General — the officer of the executive branch who represents the United States in controversies and cases which go before the U.S. Supreme Court — and was specifically asked about DOMA and same sex marriage (emphasis mine):

Volokh Conspiracy: In his most recent post, my co-blogger Randy Barnett writes that “defining marriage — like defining property — is a traditional function of the states.” He continues: [T]hat is crazy. It would be like saying you “own” your home under the property law of California, but you don’t “own” your home “for purposes of federal law.” Such a dual property system would undermine the institution of property, and the traditional power of States to define property, every bit as much as allowing a dual system of state and federal marriage undermines the institution of marriage, and the traditional power of states to regulate marriage.

Ken Klukowski at Breitbart: The likely swing vote on this issue of “standing” is Chief Justice John Roberts. Kennedy tipped his hand that he might regard the official sponsors of Prop 8—which the California Supreme Court unanimously held are empowered by the California Constitution to defend the measure in court—as meeting the U.S. Constitution’s requirements for the lawsuit to proceed.

Hadley Arkes at NRO: From the back and forth this morning, it appears that the issue of the Supreme Court’s “standing” is not likely to be decisive. Even Justice Kennedy seemed to be concerned to answer that question — and put it out of the way . . . Coming out of the courtroom today, the defenders of marriage were decorously upbeat: One savvy observer thought that the odds on Kennedy tilted to the conservative side were about 70 percent.

Orin Kerr at Volokh Conspiracy: At the oral argument today in Hollingsworth v. Perry, Justice Scalia repeatedly questioned Ted Olson on when same-sex marriage became unconstitutional. From the transcript . . .

Daily Mail: In short, the Supreme Court ought to allow the public – as a society – to decide the future of marriage. Why? Because marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces.

Baptist Press: Afterward, a co-counsel for Prop 8′s supporters said they have been asking the same question as Scalia.”At what point in time did marriage, this cornerstone of civilization and the bedrock of our society, all of a sudden become unconstitutional? And we don’t believe obviously it ever has,” Austin Nimocks, senior counsel with Alliance Defending Freedom, told Baptist Press. “We believe Americans have the constitutional right to uphold, support and defend marriage as it has always been. And so we certainly are hopeful that the Supreme Court agrees with us.”

Ed Whelan at NRO: Some noteworthy question/comments by Justice Kennedy in the oral argument today:

NBC: A lesbian cousin of Chief Justice John Roberts will attend the landmark Supreme Court arguments on gay marriage and says she is confident he will see that gays deserve “dignity, respect, and equality under the law.”

SCOTUS Blog: Spectators seeking to get into the Supreme Court chamber for next week’s oral arguments on the same-sex marriage cases began lining up on Thursday at about 9 p.m. — more than four days before the first argument, Tuesday at 10 a.m.

Wall Street Journal: Fresh off his victory litigating the 2000 presidential-election case, Bush v. Gore, Theodore Olson was named President George W. Bush’s solicitor general and began looking for a brilliant young conservative to be his deputy. The job went to Paul Clement . . .

Miami Herald: Like Cook, most of the lawyers who become members of the Supreme Court bar will never argue before the court. The justices hear only about 80 cases a year, and the majority of the lawyers arguing them are specialists who routinely appear before the court. Still, nearly 4,000 lawyers on average join the bar every year, and the fees they pay bring in more than $750,000 annually.

SCOTUS Blog: The Supreme Court on Friday afternoon released the list of lawyers who will argue in the two-week sitting that begins on Monday, including the line-up of attorneys who will argue the same-sex marriage cases in the second week of that sitting. The schedule for the marriage cases appears below the jump

Religion Clause Blog: Oral arguments are scheduled for March 26 in Hollingsworth v. Perry, and on March 27 in United States v. Windsor. These dates are the first two days of Passover– holidays in the Jewish calendar on which traditional Jews abstain from work.

Wall Street Journal (via Google): Chief Justice John Roberts preserved one of President Barack Obama’s main legacies—and helped forge his own—by largely upholding the president’s health-care law last year. Now, the two leaders’ places in history are entwined again, as the Supreme Court prepares to hear two gay-marriage cases later this month.

Damon W. Root at Reason: Many of his critics may be too ignorant to know it, but Thomas’ writings are steeped in African-American history and grapple repeatedly with the long shadow cast by slavery and Jim Crow. He may not be a modern liberal, but there is no question that Clarence Thomas is part of a civil rights tradition that started with Frederick Douglass.

SCOTUS Blog: At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on state power to require would-be voters to show proof of citizenship to register. Arguing for state and local officials in Arizona v. The Inter Tribal Council of Arizona (docket 12-71), will be Arizona Attorney General Thomas C. Horne, with thirty minutes of time.

The HIll: The cuts to the court system from sequestration are “simply unsustainable,” Justice Anthony Kennedy warned Thursday.

AP: These varied family portraits of the justices are somewhat at odds with the arguments of gay marriage opponents who stress the unique ability of heterosexual couples to have babies as a reason to uphold bans on same-sex marriage.

Jack Balkin at Balkinization: At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices. I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year’s time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?

SCOTUS Blog: Although some commentators have written about the pedagogical goals and benefits of such clinics, no one yet has written about their public interest mission. This Article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by inexperienced (and often under-resourced) counsel instead of Supreme Court specialists are generally at a distinct disadvantage.

Business Insider: But neither of those cases dealt with marriage, and Kennedy made some remarks last week that have some members of the gay community on edge.

Washington Times: “It is not an exaggeration to call the [Proposition 8 case] Hollingsworth v. Perry the ‘Roe v. Wade for marriage . . . ’”

Washington Post: O’Connor was in the panel majority that said Arizona’s requirement of proof of citizenship when registering to vote in federal elections conflicted with federal law.

Wilson Times: A Supreme Court justice has responded to an 11-year-old Wilson girl’s heartfelt appeal for federal recognition of same-sex marriage.

SCOTUS Blog: We present the results of a new study, which offers significant methodological improvements over past studies by combining experimental and observational elements . . . We found that even when ruling on highly controversial and politicized issues – such as the health care and immigration rulings we considered – the Supreme Court can change public opinion.

AP: Justice Anthony Kennedy says he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.

Sacramento Bee: “A democracy is only as strong as you make it, and you can’t make it strong unless you know its history,” he told high school students Wednesday at the federal courthouse.

AP: “Out of Order: Stories From the History of the Supreme Court” (Random House), by Sandra Day O’Connor

Washington Times: President Obama’s effort to reshape the federal judiciary will enter a new phase of open warfare with Republican lawmakers Wednesday when the Senate votes on whether to break the filibuster of Caitlin Halligan’s nomination for a seat on the prestigious D.C. Circuit Court of Appeals.

ENIDnews.com: Oklahoma Attorney General Scott Pruitt is asking the U.S. Supreme Court to review a decision by the Oklahoma Supreme Court that invalidated a state anti-abortion statute. | Cline v. Oklahoma Coalition for Reproductive Justice

Paul Mirengoff at Power Line: But before getting into the weeds, we should step back in awe of the fact that the Supreme Court will likely decide the issue stated above. Assuming that threshold issues such as standing don’t prevent a ruling on the merits, nine glorified lawyers are about to tell us whether the traditional definition of marriage as requiring members of the opposite sex is rational and/or useful (whether the standard is “rationality” or “utility” is up for grabs in the case).

TPM: In a wide-ranging profile published in the latest issue of The New Yorker, Supreme Court Justice Ruth Bader Ginsburg addressed when her time on the bench may draw to a close.

LA Times: The shift in favor of gay rights may have an effect on the justices. If not, it could still doom restrictive marriage laws in liberal states like California.

Amanda Becker at Roll Call: Some of the more conservative justices on the Supreme Court weren’t shy about assessing their neighbors across the street Wednesday during oral arguments in a closely watched Voting Rights Act case.

Pete Williams at NBC: Obama administration to express support for gay marriage before Supreme Court

Administration officials say the Justice Department will urge the U.S. Supreme Court to allow same-sex marriage to resume in California, wading into the protracted legal battle over Proposition 8 and giving gay-rights advocates a new court ally.

ABA: A group of plaintiffs that includes lawyers and legal organizations has no standing to challenge a foreign surveillance law, the U.S. Supreme Court ruled Tuesday in a 5-4 opinion.