The petition of the day is:

Issue: Whether, when the Federal Sentencing Guidelines calculate a person’s offense level based on prior convictions that are expressly excluded under the relevant federal statute, the statute or the Guidelines control.

Three judges of the U.S. Court of Appeals for the D.C. Circuit listened closely, but noncommittally, on Wednesday to a broad constitutional attack on the system of war crimes tribunals now operating at the U.S. military base at Guantanamo Bay, Cuba.  The hearing — running more than twice as long as the assigned half-hour — ranged over the trial of Abraham Lincoln’s assassins, a military trial in the Civil War, a sabotage trial during World War II, and an 1895 case involving a Chinese national convicted outside of the regular court system.

The point of that exploration was to help the three-judge panel decide whether Congress and the Pentagon have teamed up to create a system of war crimes prosecutions that pushed aside the regular civilian trial courts, in a way that violates the Constitution’s Article III, creating the federal judiciary.  The case heard Wednesday seems destined to go to the Supreme Court.

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Supreme Court Justice Ruth Bader Ginsburg has issued a new version of her dissent, released early Saturday morning in a Texas voting rights case, to fix an error about one kind of ID card that voters can use to qualify to vote.  The revised dissenting opinion, in full, can be read here.

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UPDATED 5:54 p.m.  The Ninth Circuit Court has told lawyers for same-sex couples who challenged the Idaho ban to reply by November 12 to the en banc rehearing petition.

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After being rebuffed by the Supreme Court and by a federal appeals court on the issue of same-sex marriage, and after saying that the state would no longer resist such marriages, the governor of Idaho on Tuesday night filed a plea for new review by the full U.S. Court of Appeals for the Ninth Circuit.

The plea by lawyers for Gov. C.L. “Butch” Otter, seeking to have a three-judge panel’s decision issued on October 7 wiped out and en banc review to begin, argued that the panel ruling was “judicial policymaking masquerading as law.” Continue reading »

From birth in Shanghai, China during World War Two to a summa in math at Harvard to a long and distinguished career in legal academe and Supreme Court advocacy.

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

In this six-part interview, Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses his background, from his birth in Shanghai, China during World War Two and his early interest in mathematics to teaching presidents and Supreme Court Justices and arguing cases before the Supreme Court; the inspiration and purpose of his latest book, Uncertain Justice: The Roberts Court and the Constitution , written with former student Joshua Matz; and understanding essential, accessible points of the Supreme Court, principles in constitutional law and leading issues of the day — “Obamacare,” racial equality, gay rights, campaign finance, and the relation of privacy and technology.

Briefly:

• At the WLF Legal Pulse, Richard Samp urges the Court to rule on the merits of Dart Cherokee Basin Operating Co. v. Owens, in which it heard oral argument earlier this month,, rather than dismissing it as improvidently granted.
• 3rd Block With Brian Williams (video) covers recent remarks by Justice Ruth Bader Ginsburg , who told NPR’s Nina Totenberg that nine female Justices would be “enough” women on the Court.
• At the Volokh Conspiracy, Will Baude weighs in on Supreme Court Justices and the politics of retirement after Richard Re’s post on the topic (which we covered in yesterday’s round-up).
• In the San Jose Mercury News, Howard Mintz covers a recent visit by Justice Sonia Sotomayor to San Jose State University.
• At the National Constitution Center’s Constitution Daily, Scott Bomboy looks at politicians who have become Supreme Court Justices, noting that “it’s been a while since a major national political figure joined the Supreme Court.”

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

Relying mainly on two legal points that federal courts have repeatedly rejected over the past sixteen months, a federal trial judge in San Juan ruled Tuesday that Puerto Rico’s ban on same-sex marriage survives constitutional challenge.  The combination of a one-line Supreme Court decision in 1972 and the Court’s full-scale ruling in June a year ago on the federal Defense of Marriage Act means that lower courts are required to leave the marriage question to the states (and to Puerto Rico), U.S. District Judge Juan M. Perez-Gimenez declared in a twenty-one-page opinion.

The decision was a clear break with the near-unanimous results of federal trial and appeals courts in the wake of the Justices’ ruling last year in United States v. Windsor – a ruling that said nothing directly about state power to deny marriage for gay and lesbian couples, but has been widely interpreted as if it had said a great deal.  Since Windsor, only one other federal trial judge has upheld such a ban — in Louisiana.

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The petition of the day is:

Issue: Whether section 510 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1140, prohibits retaliation against an employee who makes unsolicited complaints to management regarding possible ERISA violations.

With the filing Tuesday of a one-paragraph notice by state officials in a federal courthouse in Casper, Wyoming, and the release of a two-page order by a federal judge, that state became the thirty-second to allow same-sex marriage — an increase of thirteen from what it was only sixteen days before.

The Wyoming governor and attorney general formally advised a federal judge that they would not appeal his ruling last Friday declaring the state’s ban on same-sex marriages to be unconstitutional.  The only two places where the state could have gone with an appeal would be the U.S. Court of Appeals for the Tenth Circuit, which has struck down two such bans, and the Supreme Court, which has refused even to review or to delay any decisions against those prohibitions.

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Last Term, the Supreme Court issued a higher percentage of unanimous decisions than in any Term since 1940.  The Court was unanimous 62% of the time, and there were dissenting opinions in only 39% of the cases.  Was the 2013 Term an outlier, or is it a harbinger of a new consensus among the Justices?  Cass Sunstein tries to answer that question in his recent article Unanimity and Disagreement on the Supreme Court.

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