The petition of the day is:

UPDATED 9:56 p.m.   The American Civil Liberties Union, one of the legal advocacy groups involved in the case, said “we will be filing for Supreme Court review right away.”  Presumably, other attorneys involved will be coordinating filing, although each case is likely to be appealed separately.

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Breaking ranks with a wide array of other federal courts, and coming close to setting up almost certain review by the Supreme Court, a divided federal appeals court in Cincinnati on Thursday upheld bans on same-sex marriage in four states.  Dividing two to one, the U.S. Court of Appeals for the Sixth Circuit overturned lower-court rulings in cases from Kentucky, Michigan, Ohio, and Tennessee.

Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted.

The decision was based largely on the two-judge majority’s view that the question whether to move the nation toward same-sex marriage in every state is for the people or the states, and not for judges applying the national Constitution.

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It is possible, during yesterday’s second argument (in Johnson v. United States), that the Justices were simply tired from the first argument, in Yates v. United States, which also addressed Congress’s failure to clearly anticipate or specify certain cases when legislating about federal criminal law. The Justices seemed somewhat less active than usual, and the transcript is a rare one in which Justice Anthony Kennedy, often the “swing Justice,” did not ask a single question. Moreover, Justice Antonin Scalia asked only two short ones near the start of the argument. As a consequence, both arguing lawyers (Assistant Federal Public Defender Katherine Menendez for Johnson and Assistant to the Solicitor General John Bash for the government) were at times allowed to speak multiple full paragraphs without interruption. Continue reading »

John Elwood reviews Monday’s relisted cases.

I am just hearing about this, but apparently, there was an election this week. Those of us who have declared the Supreme Court’s weight room as a legal address (don’t tell the guards) don’t get to vote for representatives in Congress, although there are offsetting benefits to D.C. residency. First among them, of course, is marginally faster access to relist information, which is what I assume people mean when they mention “Big Data.” Continue reading »

A state judge in St. Louis has ruled unconstitutional Missouri’s ban on marriage for same-sex couples, leading state officials to rush an appeal to the state supreme court, but they did not ask that the ruling be put on hold.  In neighboring Kansas, meanwhile, the state supreme court has indicated that it may stand aside and let the issue unfold in federal court.

One of the most significant facets of the ruling against the Missouri ban is that the judge discounted the significance of a 2006 ruling by the U.S. Court of Appeals for the Eighth Circuit that has been used by officials in many states to argue that there is already a split in the federal appeals courts on the issue, so the Supreme Court should step in to settle it.

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If Tuesday’s oral argument in Department of Homeland Security v. MacLean is any indication, the Supreme Court appears likely to side with a former federal air marshal and rule that his disclosure to the media of alarming lapses in post-September 11 aviation security was protected by the Whistleblower Protection Act of 1989 (WPA) – and so his termination for that disclosure was unlawful. And although one major clue that such a result may be forthcoming came in the Justices’ skepticism concerning the potentially illusory distinction on which the government’s argument rests, the real key may have been the effective rejoinder by counsel for the respondent, former acting Solicitor General Neal Katyal, that any harm that may thereby result to national security could be mitigated through executive orders. Continue reading »

Yesterday’s argument in Yates v. United States, in which the Court is considering whether a commercial fisherman can be convicted under the Sarbanes-Oxley Act’s “anti-shredding” provision for ordering his crew to throw seventy-two undersized fish overboard, dominated coverage of the Court.  Lyle Denniston reported on the case for this blog, while I did the same in Plain English.  Other coverage comes from NPR’s Nina Totenberg, Adam Liptak of The New York Times, Jeremy P. Jacobs of Greenwire, Lisa McElroy at Hamilton and Griffin on Rights, and Daniel Fisher of Forbes.  At Re’s Judicata, Richard Re lists the “top ten” moments from yesterday’s oral argument, while at ISCOTUSnow Edward Lee predicts the winners in both of yesterday’s cases based on the number of questions at oral argument. Other commentary comes from Ed Mannino at his eponymous blog. Continue reading »

For the rest of the nation’s capital, yesterday’s elections may have been the week’s headliner, but inside the Supreme Court the main event came today, as spectators – including retired Justice Sandra Day O’Connor and Judge Brett Kavanaugh of the D.C. Circuit – packed the courtroom to hear a case about . . . fish.  Specifically, the seventy-two red grouper that commercial fisherman John Yates had ordered his crew to throw overboard after a Florida official (working on behalf of the federal government) determined that they were smaller than the legal limit.  Yates was charged with violating a federal law that makes it a crime to “knowingly . . . destroy[] any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation, even one that has not yet been officially initiated.  (I previewed the case in Plain English yesterday.) Continue reading »

The petition of the day is:

Issue: Whether, as the Ninth Circuit held, in open and admitted conflict with other courts of appeals, a district court may exclude expert testimony as unreliable only when it is based on a “faulty methodology or theory,” or whether, as the Third Circuit and other circuits have held, “any step that renders the analysis unreliable *** renders the expert’s testimony inadmissible.”

However strange the facts may sound, Jesinoski v. Countrywide Home Loans presents a scenario that has come up all too often in the aftermath of the financial crisis. A borrower receives a mortgage loan. Among the dozens of papers that the borrower signs at the closing is a document in which the borrower acknowledges that the lender has provided the disclosures required by the Truth in Lending Act (commonly known as TILA). Fast forward to three years later, long after the borrower has received and spent the funds for the loan, when the borrower is facing foreclosure and no longer able to make monthly mortgage payments. At that point, the borrower sends a letter to the lender stating that the lender in fact did not provide the required disclosures and purporting to rescind the entire loan transaction. When the lender ignores the letter, another year passes, and then the borrower files suit to rescind the loan. The question is whether the borrower’s suit is timely. Continue reading »