FedSoc Blog

SCOTUS Opinions 2/25/2015

Avatar

by Publius
Posted February 25, 2015, 10:47 AM

SCOTUS Opinion 2/25/2015Today the Supreme Court decided two cases:

(1)  First is the Florida grouper/Sarbanes Oxley case, Yates v. United States.  Yates won a reversal of the conviction he had challenged, by a vote of 5-4, but without a majority opinion.

To prevent federal authorities from confirming that he had harvested undersized grouper, Yates ordered crew to toss the suspect catch back into the sea.  He was charged and convicted under several provisions of federal law, including the Sarbanes Oxley prohibition on destruction of "tangible object[s]" with intent to impede a federal investigation (18 USC 1519).  The Eleventh Circuit affirmed on the grounds that a fish was a "tangible object" within the meaning of the statute.

The Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case for further proceedings, but with no majority opinion.  Justice Ginsburg announced the judgment of the Court and delivered an opinion joined by the Chief Justice, Justice Breyer, and Justice Sotomayor. The plurality concluded that dictionary definitions were not dispositive here, that traditional tools of statutory interpretation counseled against an aggressive interpretation of "tangible object," and that if any doubt remained it would be appropriate to invoke the rule of lenity.

Justice Alito concurred in the judgment, providing the necessary fifth vote to reverse, but on narrower grounds: "[T]raditional tools of statutory construction confirm that John Yates has the better of the argument. Three features of 18 U. S. C. §1519 stand out to me: the statute’s list of nouns, its list of verbs, and its title. Although perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so."

Justice Kagan filed a dissenting opinion, joined by Justices Scalia, Kennedy and Thomas.  Citations include the work of Dr. Seuss: "While the plurality starts its analysis with §1519's heading...I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. See, e.g., Schindler Elevator Corp v. United States ex rel. Kirk, 563 U. S. ___, ___ (2011) (slip op., at 5). As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing thatpossesses physical form.” Ante, at 7 (punctuation andcitation omitted). A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as noone here disputes, covers fish (including too-small red grouper)."

(2) Second was North Carolina Bd. of Dental Examiners v. FTC.  By a vote of 6-3, the FTC prevailed.

Per Justice Kennedy's opinion for the Court, which was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor and Kagan:

"This case arises from an antitrust challenge to the actions of a state regulatory board. A majority of the board’s members are engaged in the active practice of the profession it regulates. The question is whether the board’s actions are protected from Sherman Act regulation under the doctrine of state-action antitrust immunity....The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies. If a State wants to rely on active market participants as regulators, it must provide active supervision if state-action immunity under Parker is to be invoked. The judgment of the Court of Appeals for the Fourth Circuit [(upholding the FTC judgment against the Board)] is affirmed."

Justice Alito filed a dissenting opinion, which was joined by Justices Scalia and Thomas.

Categories: SCOTUSreport

SCOTUS Opinion 2/24/2015

Avatar

by Publius
Posted February 24, 2015, 11:27 AM

SCOTUS Opinion 2/24/2015The Supreme Court released one opinion today:

Kansas v. Nebraska

The question in this case was whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado; if so, what relief is appropriate to remedy the violation.

In an original opinion delivered by Justice Kagan, the Court agreed with the Special Master's conclusion that Nebraska "knowingly failed" to comply with its obligations under the Final Settlement Stipulation and adopted his recommendations that Nebraska pay Kansas 1.8 million in disgorgement and that Kansas's request for injunctive relief be denied.

Per Justice Kagan, "...we agree with the Master’s conclusion that Nebraska 'knowingly exposed Kansas to a substantial risk' of receiving less water than the Compact provided, and so 'knowingly failed' to comply with the obligations that agreement imposed...In such circumstances, a disgorgement award appropriately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact’s successful administration" The Court rejected Kansas's request for an injunction ordering Nebraska to adhere to the Compact and Settlement. Per Kagan, "Kansas wants such an order so that it can seek contempt sanctions against Nebraska for any future breach...But we agree with the Master that Kansas has failed to show, as it must to obtain an injunction, a 'cognizable danger of recurrent violation.'"

Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined the opinion of the Court. Chief Justice Roberts joined as to Parts I and III. Chief Justice Roberts and Justice Scalia filed opinions concurring in part and dissenting in part. Justice Thomas filed an opinion concurring in part and dissenting in part, which Justices Scalia and Alito joined and which Chief Justice Roberts joined as to Part III.

Categories: SCOTUSreport

TX Federal Judge Blocks Obama Immigration Orders

Avatar

by Publius
Posted February 17, 2015, 10:52 AM

Hon. Andrew HanenThe Washington Post reports:

A federal judge in Texas last night temporarily blocked the Obama administration’s executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.

No law gave the administration the power “to give 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence,’” the judge said in a memorandum opinion. “In fact the law mandates that these illegally-present individuals be removed.” The Department of Homeland Security “has adopted a new rule that substantially changes both the status and employability of millions.”...

The administration’s directives announced in November have been vigorously challenged by Republicans in Congress and across the country, who cite them as examples of what House Speaker John A. Boehner (R-Ohio) has called Obama’s “legacy of lawlessness.” The administration has defended them as routine exercises of presidential authority, made necessary by Congress’s failure to enact comprehensive revisions to U.S. immigration law. U.S. District Judge Andrew S. Hanen in Brownsville strongly disagreed. . . .

Read the full article.

* * * * *

In January, our Engage journal published an article by Prof. John C. Eastman on President Obama's executive action on immigration. He writes:

There has been a lot of talk about prosecutorial discretion since November 20, 2014, when President Obama announced that he was unilaterally suspending deportation proceedings against millions of illegal immigrants.  Despite the President’s claim that his actions were simply “the kinds of actions taken by every single Republican president and every single Democratic President for the past half century,” whether or not prosecutorial discretion can be stretched so far is actually an issue of first impression.  But as serious as that issue is, it masks a much more fundamental constitutional question about executive power, for the President has not just declined to prosecute (or deport) those who have violated our nation’s immigration laws. He has granted to millions of illegal immigrants a lawful status to remain in the United States as well, and with that the ability to obtain work authorization, driver’s licenses, and countless other benefits that are specifically barred to illegal immigrants by U.S. law.  In other words, he has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly to be set by the Congress.

Read the full article.

 

Categories: External Articles

Senators Introduce The Law Enforcement Access to Data Stored Abroad (LEADS) Act

Avatar

by Publius
Posted February 12, 2015, 4:42 PM

The Law Enforcement Access to Data Stored Abroad (LEADS) ActToday Senators Hatch, Coons, and Heller reintroduced The Law Enforcement Access to Data Stored Abroad (LEADS) Act. [FULL TEXTThe Hill reports:

“As Congress works to reform our domestic privacy laws, we must also clarify and modernize the legal framework for government access to digital data stored around the world,” Hatch said at the Reboot Congress conference on Thursday. “These two issues are inextricably linked.”

The bill would require law enforcement to obtain a warrant if it wants emails or other communications stored in the cloud. Under current law, only a subpoena is needed to force U.S. companies to hand over electronic communications more than 180 days old.

The second piece of the bill would put restrictions on what kind of information the government can force a U.S. company to hand over, when that data is stored overseas.

Under the change, the government could use a warrant to get access only to Americans’ data stored overseas, and not from foreigners. But a U.S. company could fight the government order if it would violate the foreign country’s laws.

Read the full article.

Read a summary of the bill

* * * * *

In a recent Teleforum, two expercts discussed the reach of federal warrants when it comes to data stored outside the United States. If you're interested in learning more about the issue, that Teleforum call is now available for download as a podcast: The Reach of Federal Warrants - The Microsoft Case.

In December of 2014, Microsoft filed a brief with the Federal Court of Appeals for the Second Circuit in New York to prevent the U.S. Department of Justice from seizing a customer’s data stored in Dublin, Ireland. It’s a case that raises important questions about the right of Americans to know what the government and companies are doing with sensitive electronic data. How do we ensure accountability both to the law through reasonable regulation, and to the courts through effective judicial review? The case also raises questions about the rights of people in other countries. Will they continue to have their privacy rights protected by their own laws? Anticipating a world where every device is a connected device, these are but a few of the important questions raised by this case regarding the future of privacy and regulations going forward.

  • James M. Garland, Partner, Covington & Burling LLP
  • David Howard, Corporate Vice President & Deputy General Counsel, Microsoft

Listen to the podcast.

Categories: External Articles

And the Finalists Are…

Avatar

by Publius
Posted February 05, 2015, 11:54 AM

And the Finalists Are...

 

The Federalist Society's 34th National Student Symposium is only weeks away. In addition to the exciting speakers, interesting panels, and lots of friends, we will present this year's Feddie Awards at the banquet dinner, celebrating the best of our student chapters.  The finalists are:

James Madison Award for Chapter of the Year

Columbia
Florida
Florida State
Harvard
Kentucky
Michigan
Nebraska
Texas
Virginia
Washington & Lee
Yale

Alexander Hamilton Award for Most Improved Chapter

Concordia
McGeorge
Minnesota
Nebraska
Northwestern
Savannah
South Texas

Samuel Adams Award for Membership Growth

Brigham Young
Chicago
George Washington
Harvard
Kentucky
Notre Dame
Savannah
Virginia

Thomas Paine Award for Creative Publicity

Arizona
Baltimore
Colorado
Florida
Michigan
Nebraska
Pepperdine
UCLA
UC-Davis
Virginia

The winners in each category will be announced at the dinner Saturday evening, which will also feature an exciting panel with Colin Stretch, General Counsel of Facebook, Katie Biber Chen, Senior Counsel of Airbnb, and Hon. Theodore Ullyot, Palantir. Good luck to all of our Finalists, we will see YOU on the red carpet!

Here are a few important reminders:

  • Register now for the Symposium and don't forget to buy a ticket to the Banquet as it does sell out.
  • Download the free Symposium App for up to date information about the symposium.
  • Don't forget we can reimburse 50% of your airfare and your taxis to/from the airports in addition to your taxis to/from the hotel if you are a national member.
  • Make sure to check out and invite your friends to the Symposium Facebook event.

Categories: Federalist Society

National Constitution Center Announces Members Of Coalition Of Freedom Advisory Board

Avatar

by Publius
Posted February 04, 2015, 1:43 PM

The National Constitution Center made an exciting announcement earlier today:

The National Constitution Center in Philadelphia is pleased to announce the members of its new scholarly Coalition of Freedom Advisory Board, co-chaired by leaders of the Federalist Society and the American Constitution Society. The new board was created to oversee a three-year initiative made possible by a $5.5 million grant from the John Templeton Foundation to increase awareness of the rights set forth in the United States Constitution and other founding documents. The initiative will bring together the best scholars in America to participate in Town Hall constitutional debates across America and to create the best non-partisan Interactive Constitution on the web.

The Coalition of Freedom board is composed of 27 constitutional scholars from across the political spectrum, and it is co-chaired by Lee Otis, Senior Vice President and Faculty Division Director of the Federalist Society, and Caroline Fredrickson, President of the American Constitution Society for Law and Policy. It also includes scholarly co-chairs Richard Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law, and Nicholas Quinn Rosenkranz, Professor of Law at Georgetown University Law Center and Senior Fellow at the Cato Institute.

Coalition of Freedom Advisory Board

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Read the full announcement.

Categories: External Articles

First Amendment Rights of Judges in the Spotlight

Avatar

by Publius
Posted January 28, 2015, 10:00 AM

Flickr user Leon Reed (lreed76) https://www.flickr.com/photos/leonandloisphotos/The Wall Street Journal reports:

Just a few days ago, the U.S. Supreme Court heard arguments on whether states can bar judicial candidates from soliciting campaign donations without violating their speech rights.

Across the coast in California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.

The group wasn’t mentioned specifically by name, but the California rule was proposed last year in response to the Boy Scout’s policy of excluding gays from staff and leadership roles. After hearing from scores of judges and lawyers, some of whom fiercely opposed it, the California Supreme Court on Friday voted to adopt the rule, which takes effect next year.

The U.S. Supreme Court case is about the political speech rights of judges, while the California ethics rule deals with limits on free association. But both raise the question of how much First Amendment protection should be granted to judges who have a special duty to be fair and impartial, says Harvard University constitutional scholar Noah Feldman. . . .

Read the full article.

Categories: External Articles

SCOTUS Opinion 1/26/2015

Avatar

by Publius
Posted January 26, 2015, 10:18 AM

SCOTUS Opinion 1/26/2015The Supreme Court released one opinion this morning:

M & G Polymers USA v. Tackett: In an opinion by Justice Thomas, a unanimous Court held that the Sixth Circuit erred in reasoning that collective bargaining agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The judgment of the Sixth Circuit was vacated and the case remanded for application of ordinary principles of contract law.  Per Justice Thomas for the Court:

"This case arises out of a disagreement between a group of retired employees and their former employer about the meaning of certain expired collective-bargaining agreements. The retirees (and their former union) claim that these agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The employer, for its part, claims that those provisions terminated when the agreements expired. The United States Court of Appeals for the Sixth Circuit sided with the retirees, relying on its conclusion in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479 (1983), that retiree health care benefits are unlikely to be left up to future negotiations. We granted certiorari and now conclude that such reasoning is incompatible with ordinary principles of contract law. We therefore vacate the judgment of the Court of Appeals and remand for it to apply ordinary principles of contract law in the first instance."

Justice Ginsburg filed a concurring opinion, which was joined by Justices Breyer, Sotomayor, and Kagan, suggesting that the employer was not necessarily certain to win on remand.

Categories: SCOTUSreport

McGinnis: Another Step Toward Neutral Principles in Campaign Regulation

Avatar

by Publius
Posted January 22, 2015, 2:30 PM

McGinnis: Another Step Toward Neutral Principles in Campaign RegulationAt the Library of Law and Liberty Blog, John O. McGinnis discusses the Williams-Yulee v. The Florida Bar case and its implications. He comments:

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections. The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/ under inclusiveness test to these regulations. The Court in First Amendment cases typically assesses whether the legislative solution offered by a statute fits the problem by asking whether it is underinclusive or overinclusive. One way of understanding this test is that a focus on the fit between the proffered purpose of the regulation and its scope helps to ferret out pretext, uncovering regulation that claims to solve a problem but is directed at impermissible objective. If the regulation is underinclusive with respect to its objective, it suggests that regulation is pretextual because it does not solve the problem. If it is overinclusive, it suggests that it is burdening more speech rights than is necessary because it applies regardless of whether the rationale for the legislation is present.

Assuming that the government interest is to avoid corruption or appearance of corruption,  preventing solicitation by personal letter is both over and underinclusive.

Read the full post.

Categories: External Articles

SCOTUS Opinions 1/21/2015

Avatar

by Publius
Posted January 21, 2015, 11:04 AM

SCOTUS Opinions 1/21/2015The Supreme Court released three opinions this morning:

(1) Hana Financial v. Hana Bank: In an opinion by Justice Sotomayor, the Court held unanimously that the question whether two trademarks may be tacked for purposes of determining priority is a question for the jury. The judgment of the Ninth Circuit was affirmed.  Per Justice Sotomayor:

​"​Rights in a trademark are determined by the date of the​ ​mark’s first use in commerce. The party who first uses a​ ​mark in commerce is said to have priority over other​ ​users. Recognizing that trademark users ought to be​ ​permitted to make certain mo​​difications to their marks​ ​over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a​ ​new mark with the priority position of an older mark.​ ​This doctrine is called “tacking,” and lower courts have​ ​found tacking to be available when the original and revised marks are “legal equivalents” in that they create th​e​ same, continuing commercial impression. The question​ ​presented here is whether a judge or a jury should determine whether tacking is available in a given case. Because the tacking inquiry operates from the perspective of​ ​an ordinary purchaser or consumer, we hold that a jury​ ​should make this determination.​"​

(2) Gelboim v. Bank of America: In an opinion by Justice Ginsburg, the Court held unanimously that a lower court order dismissing petitioners' case in its entirety removed petitioners from the consolidated multidistrict litigation proceeding, thereby triggering their right to appeal under §1291. The judgment of the Second Circuit was reversed and the case remanded. Per Justice Ginsburg:

​"​An unsuccessful litigant in a federal district court may​ ​take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U. S. C. §1291. The question here presented: Is the right to appeal secured by​ ​§1291 affected when a case is consolidated for pretrial​ ​proceedings in multidistrict litigation (or MDL) authorized​ ​by 28 U. S. C. §1407?​....The Court of Appeals for the Second Circuit, acting on​ ​its own motion, dismissed the appeal filed by​ [petitioners]​ for want of appellate jurisdiction. We reverse the​ ​Second Circuit’s judgment and hold that the ​petitioners' complaint retained its independent status for​ ​purposes of appellate jurisdiction under §1291. Petitioners’ right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multi​district proceedings in all of the consolidated cases.​"​

(3) Dep't of Homeland Security v. MacLean: In an opinion by Chief Justice Roberts, the Court held by a vote of 7-2 that federal air marshal MacLean's disclosure was not "specifically prohibited by law." The judgment of the Federal Circuit was affirmed. Per the Chief Justice:

​"​Federal law generally provides whistleblower protections to an employee who discloses information revealing​ ​“any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5​ ​U.​ ​S. C. §2302(b)(8)(A). An exception exists, however, for​ ​disclosures that are “specifically prohibited by law.”​ ​Ibid.​ ​Here, a federal air marshal publicly disclosed that the​ ​Transportation Security Administration (TSA) had decided to cut costs by removing air​ ​marshals from certain​ ​long-distance flights. The​ ​question presented is whether​ ​that disclosure was “specifically prohibited by law.”​"​ ​According to the majority, the disclosure was prohibited neither by TSA regulations on sensitive security information​ (because they did not count as "law" for purposes of the statute in question), nor by the statutory provision that empowers the TSA to prescribe regulations on information disclosure.  Concerns regarding public endangerment as a result of whistleblower disclosures, while legitimate, must be addressed by Congress or the President, not the Court.

Justice Sotomayor dissented, joined by Justice Kennedy.

Categories: SCOTUSreport

SCOTUS Opinions 1/20/15: Holt v. Hobbs & Teva Pharmaceuticals v. Sandoz

Avatar

by Publius
Posted January 20, 2015, 12:37 PM

SCOTUS Opinion 1/20/15The Court today issued two merits opinions separately from the order list:

(1)  Holt v. Hobbs, with Justice Alito issuing the opinion for a unanimous Court.  The Court held that an Arkansas correctional policy requiring a Muslim inmate to shave his 1/2 inch beard violated the federal RLUIPA statute.  The Eighth Circuit was reversed and the case remanded for further proceedings:

​"​Petitioner Gregory Holt, also known as Abdul Maalik​ ​Muhammad, is an Arkansas inmate and a devout Muslim​ ​who wishes to grow a​ 1/2​-inch beard in accordance with his​ ​religious beliefs. Petitioner’s objection to shaving his​ ​beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from​ ​growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as​ ​applied in this case, violates the Religious Land Use and​ ​Institutionalized Persons Act of 2000 (RLUIPA)​...which prohibits a state​ ​or local government from taking any action that substantially burdens the religious exercise of an institutionalized​ ​person unless the government demonstrates that the​ ​action constitutes the least restrictive means of furthering​ ​a compelling governmental interest. We conclude in this case that the Department's policy substantially burdens petitioner's religious exercise.​ Although we do not question the importance of the Department’s interests in stopping the flow of​ ​contraband​ ​and facilitating prisoner identification, we do doubt​ ​whether the prohibition against petitioner’s beard furthers​ ​its compelling interest about contraband. And we conclude that the Department has failed to show that its​ ​policy is the least restrictive​ ​means of furthering its compelling interests. We thus reverse the decision of the​ ​United States Court of Appeals for the​ ​Eighth Circuit.​"​

​Justice Ginsburg filed a concurring opinion in which Justice Sotomayor joined, and Justice Sotomayor also filed a concurring opinion.​

​(2) Teva Pharmaceuticals USA v. Sandoz with Justice Breyer issuing the opinion of the Court and holding that a clear error rather than de novo standard applies to appellate review of a trial court's resolution of subsidiary factual matters in the course of construing a patent claim.  By a vote of ​7-2 the decision of the Federal Circuit is vacated and remanded:

​"​I​n ​Markman​ ​v.​ ​Westview Instruments, Inc., 517 U. S.​ ​370 (1996), we explained that a patent claim is that “por­tion of the patent document that defines the scope of the​ ​patentee’s rights.”​ ​Id.,​ ​at 372. We held that “the con­​​struction of a patent, including terms of art within its​ ​claim,” is not for a jury but “exclusively” for “the court” to​ ​determine.​ ​Ibid. That is so even where the construction​ ​of a term of art has “evidentiary underpinnings.”​ ​Id.,​ ​at​ ​390.​ ​Today’s case involves claim​ ​construction with “eviden­tiary underpinnings.​"...​And, it requires​ ​us to determine what standard the Court of Appeals​ ​should use when it reviews a trial judge’s resolution of an​ ​underlying factual dispute. Should the Court of Appeals​ ​review the district court’s factfinding​ ​de novo​ ​as it would​ ​review a question of law? Or, should it review that factfinding as it would review a trial judge’s factfinding in​ ​other cases, namely by taking​ ​them as correct “unless​ ​clearly erroneous?” See Fed. Rule Civ. Proc. 52(a)(6). We​ ​hold that the appellate court must apply a “clear error,”​ not a de novo, standard of review."

​Justice Breyer's opinion for the Court was joined by all justices except Thomas and Alito.  Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Categories: SCOTUSreport

SCOTUS Grants Same-Sex Marriage Cases

Avatar

by Publius
Posted January 16, 2015, 3:50 PM

SCOTUS Grants Same-Sex Marriage CasesOrder pasted below:

14-556 ) ) OBERGEFELL, JAMES, ET AL. V. HODGES, RICHARD, ET AL.
14-562 ) ) TANCO, VALERIA, ET AL. V. HASLAM, GOV. OF TN, ET AL.
14-571 ) ) DeBOER, APRIL, ET AL. V. SNYDER, GOV. OF MI, ET AL.
14-574 ) ) BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

Categories: External Articles

WSJ: Fewer and Fewer Students Are Applying to Law School

Avatar

by Publius
Posted January 15, 2015, 2:11 PM

Fewer and Fewer Students Are Applying to Law SchoolThe Wall Street Journal Law Blog reports:

The law school applicant pool appears to be getting more and more shallow.

The number of people applying to law school is down 8.5% compared to last year at this time, according to the latest figures released by the Law School Admission Council.

As of Jan. 9, just shy of 20,000 would-be lawyers had submitted applications to law schools. The downward trend is even starker if you compare it to figures from three years ago. By this point in 2012, about 30,000 students had applied.

Read the full article.

Categories: External Articles

SCOTUS Opinions 1/14/2015

Avatar

by Publius
Posted January 14, 2015, 10:39 AM

SCOTUS Opinions 1/14/2015The Court issued two opinions today:

(1) T-Mobile South, LLC v. City of Roswell. (Telecomms case)  By a vote of 6-3 the judgment of the Eleventh Circuit is reversed and the case remanded. The issue and outcome are summarized in the opening paragraph of Justice Sotomayor's opinion for the Court:

"The Telecommunications Act of 1996 provides, in relevant part, that '[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.' 110 Stat. 151, 47 U. S. C. §332(c)(7)(B)(iii). The question presented is whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers. We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice."

Justice Sotomayor was joined by Justices Scalia, Kennedy, Breyer, Alito, and Kagan.  Justice Alito also filed a concurring opinion.  Chief Justice Roberts dissented, joined by Justice Ginsburg, and by Justice Thomas as to Part I.  Justice Thomas also filed a separate dissenting opinion.

(2) Jennings v. Stephens. (Habeas case).  By a vote of 6-3, the judgment of the Fifth Circuit is reversed and the case remanded. Justice Scalia delivered the opinion of the Court, compressed here into the following summary:

"Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability....[A]n appellee who does not cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary....Since Jennings did not cross-appeal the denial of his Spisak theory [rejected below], we must determine whether urging that theory sought to enlarge his rights or lessen the State’s under the District Court’s judgment granting habeas relief....Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim."

Justice Scalia was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas filed a dissenting opinion, which Justices Kennedy and Alito joined.

Categories: SCOTUSreport

In Memoriam

Avatar

by Publius
Posted January 13, 2015, 10:34 AM

The Federalist Society mourns the passing of Walter Berns and Harry Jaffa. In a coincidence reminiscent of the deaths of John Adams and Thomas Jefferson, these two towering figures in American political thought died on the same day, January 10, 2015. 

Walter Berns was a particularly close friend of the Federalist Society, having participated in our first student symposium at Yale Law School in 1982--the first of many--and leant his voice and credibility to the then-fledgling student organization. His and Harry Jaffa's debate over the role of the Declaration of Independence in understanding the Constitution remains a topic of lively discussion among Federalist Society members to this day, one that has enriched our understanding of both documents and of the American Founding. RIP.

Categories: Federalist Society

Search

Categories

Archives

Originally Speaking Debate Archive

Blog Roll