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September 2014 Archives

5 Cases at SCOTUS' Big Fall Conference That We're Excited About

Last week, we blogged about the Big Fall Conference (aka long conference) at the U.S. Supreme Court. After a summer's worth of backlog clogs up the docket with around 2,000 certiorari petitions, the clerks of the Court sort through the chaff, the justices review their recommendations, and less than one percent are granted cert.

Of the 1,845 listed for Monday's BFC, and SCOTUSblog's "Petitions We're Watching" list, here are a few that we're particularly interested in, covering everything from equality (in marriage and employment) to juvenile sentencing:

The Big Fall Conference: From Petition to Certiorari Decision

Around these parts, we call it the Supreme Court's BFC, or Big [Fall] Conference. Others call it the "long" conference. We're sure the clerks have their own nicknames for annual stack of around 2,000 petitions.

This year's BFC falls on Monday, September 29, and when it gets here, the justices and their clerks will have their work cut out for them, with thousands of petitions seeking SCOTUS review. Nearly all of those petitions, of course, will be denied, but each petition has to be reviewed by both the cert. pool (eight justices' combined clerks, who divide and conquer) and Justice Samuel Alito's independent team of clerks.

Let's trace the steps of these petitions:

Sherlock Holmes and the Adventure of the Cert. Petition

"My dear Holmes," I said, eyeing the cert. petition warily. "What could this be? Hasn't the estate lost to Mr. Leslie Klinger already?"

"Correct, Watson," said Holmes. "There can be no doubt that the Estate of Arthur Conan Doyle, in an opinion by Mr. Posner, was thoroughly rebuffed. You'll recall, I hope, the facts of that matter."

"Was it not true that the original four novels and first 46 stories were no longer protected by copyright, but the final 10 were?"

Kagan Officiates Same-Sex Marriage; Lawyers Push to Be 'The Case'

We've got a double-dose of Supreme Court-related news today: A Supreme Court justice officiated a same-sex marriage over the weekend. And though Justice Elena Kagan isn't the first current or retired justice to do so, it's sure to draw some complaints and questions about bias, with the Court set to hear same-sex marriage cases at some point this term.

Speaking of same-sex marriage, in one week, the Supreme Court will consider the handful of petitions floating in the cert. pool at its first conference of the term. The New York Times reports that lawyers in the cases are jockeying for position in their briefs, hoping that their case becomes the case.

Seven more days folks: Seven days until we get to cert. petitions, oral arguments, and Court decisions.

Yarrr! 3 Piracy Cases From Supreme Court History

Today be Talk Like a Pirate Day, and rather than keel-haul the lot of ye, ye may be well served reading these piracy-related cases from the U.S. Supreme Court. That's right: Actual cases of real pirates on the High Seas, doubloons, eye patches, yard-arms. (OK, maybe not really any of those.)

Actually, the Supreme Court has had little occasion to deal with cases involving piracy; and when it has, the cases have involved terribly unsexy topics like statutory construction and vagueness.

Here are three of the Court's earliest piracy cases to satiate your desire for swashbuckling -- which these cases won't, it turns out:

Ginsburg: 6th Cir. Could Force SCOTUS' Hand on Gay Marriage. Really?

Speaking at the University of Minnesota Law School earlier this week, Justice Ruth Bader Ginsburg said that the Sixth Circuit cases on same-sex marriage were going to be crucial to the Supreme Court's same-sex marriage decisions.

If the Sixth Circuit upholds bans in Michigan, Ohio, Kentucky, and Tennessee, "there will be some urgency" on the High Court's part to intervene, Ginsburg told the audience.

Sotomayor Discusses Drones; Could SCOTUS Reshape Privacy This Term?

"There are drones flying over the air randomly that are recording everything that's happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom."

Justice Sonia Sotomayor, in a discussion with faculty and students at Oklahoma City University's law school, sounded the alarm on privacy intrusion, by both public and private actors, reports The Wall Street Journal's Bits Blog. This alarm, of course, is one that many Americans have been hearing ever since Edwards Snowden blew the whistle on the National Security Agency's mass surveillance here and abroad.

And while Justice Sotomayor's comments were general in nature, and addressed unmanned drones controlled by both the government and private citizens, her comments and recent Supreme Court decisions indicate that the Court may just be ready to start addressing some of the more pressing privacy issues.

As SCOTUS Weighs Gay Marriage, Should People v. Legislature Matter?

With the Supreme Court set to consider same-sex marriage petitions from five states at its first conference on September 29, one argument lurks in the background.

Utah, Wisconsin, Oklahoma, and Virginia passed their same-sex marriage amendments through statewide referenda. "Millions of voters" would be "disenfranchised," Utah argued, if the Court didn't take the case. Similarly, Wisconsin said the Seventh Circuit's opinion "ignored Wisconsin voters' right to 'exercise[] their privilege to enact laws as a basic exercise of their democratic power.'"

Implicit in this concern for popular sovereignty must be a suggestion that, when the people themselves make law, that law is somehow more important than when the legislature does it (and, as a corollary, it's more important because it's achieved via the mechanism of voting). Consequently, the Court must take the great weight of popular opinion into account.

Snippets: Little Sisters, Subsidies Cases Delayed, SSM Appeals

Can you feel it? Only 19 more days until the Court returns for its Big Fall Conference. The BFC will determine the fate of thousands of cert. petitions, including the growing pile of same-sex marriage appeals.

But the Obamacare cases may have to wait a bit. The D.C. Circuit, which ruled against federal Obamacare subsidies, granted en banc review, delaying that case's inevitable request for Supreme Court review. And the religious exemption cases are marching forward in the Tenth Circuit, with religious parties not satisfied with the latest revision to federal contraceptive coverage exemption paperwork.

32 States Urge SCOTUS to Hear Same-Sex Marriage Cases

Seventeen states and Washington, D.C., now allow same-sex couples to get married. In 14 other states, state or federal judges have overturned state-level bans on same-sex marriage. As this blog post is being written, the Ninth Circuit Court of Appeals is hearing oral arguments on same-sex marriage bans in Hawaii, Nevada, and Idaho.

The momentum for this movement came from the Supreme Court's 2013 decision in United States v. Windsor, which struck down a federal ban on same-sex marriage as violative of the Constitution.

Two years later, 32 states on both sides of the issue are petitioning the U.S. Supreme Court to finally rule on the legality of same-sex marriage bans as they pertain to the states. (Even the winners at the Fourth Circuit are urging the Court to take the case.)

License Plate Cases: 2 States Seek Cert., Speech Rights

This is an issue that the U.S. Supreme Court has been dodging for years: Whose speech is conveyed on a personalized license plate?

In 1977, the Supreme Court decided Wooley v. Maynard, a case where the Court presumed that a license plate was private speech and held that citizens couldn't be forced to display the motto "Live Free or Die." Since then, the Court has turned away case after case dealing with personalized plate programs, most of which were states' denials of pro-choice or pro-life license plates.

Now, the Court has two more cert. petitions on its desk: Texas' denial of a Confederate Sons plate and North Carolina's refusal to issue a pro-choice alternative to their existing pro-life plate.

Viewpoint discrimination? State speech? Private speech? Or some mixture of the two?

DNA Sets Man Free After Scalia Mocked His Death Penalty Appeal

Ten years after the U.S. Supreme Court declined to review their case, and 30 years after they were convicted, two half-brothers have been cleared of a 1983 sexual assault and murder thanks to DNA. Henry Lee "Buddy" McCollum, 50, has spent three decades on death row, while Leon Brown, 46, was serving a life sentence. Both are expected to be released today, reports The New York Times.

Their case is notable for a number of reasons: McCollum's low IQ, said to be in the 60s, puts him at or near the territory for categorical ineligibility due to his intellectual disability. Brown, who also faced the death penalty at the time, was only 15 when the crime was committed (and would also now be ineligible for execution). And though there have been a handful of death row exonerations in the past, this case looks particularly weak in retrospect -- a coerced confession, an overlooked suspect, and little to no other evidence.

But most of all, it is a sarcastic quip about McCollum's case by Justice Antonin Scalia that's attracting attention.