The Court heard argument yesterday in Chafin v. Chafin, in which it will consider whether an appeal of a district court’s ruling in a case under the Hague Convention on the Civil Aspects of International Child Abduction becomes moot after the child returns to her country of habitual residence. Coverage of the argument comes from Adam Liptak of The New York Times, Bill Mears of CNN, Jon Swaine and Ref Sanchez of The Telegraph, Terry Baynes of Reuters, Jesse J. Holland of the Associated Press, and Fox News. Kali posted the transcript of the oral argument yesterday. Continue reading »
At tomorrow’s Conference, the Court will consider ten petitions presenting issues relating to same-sex marriage. During the last two weeks, the blog ran Lyle’s four-part series explaining the issues in each of the cases before the Court, and Amy analyzed the cases and issues in “Plain English”; links to those posts are below.
When the Court does act on the cases, which could be as soon as tomorrow afternoon, we will have full coverage and analysis from the blog’s staff. We will also host an online symposium featuring commentary and analysis from scholars and practitioners on both sides of the same-sex marriage question, including Neal Devins of William and Mary Law School, William Duncan of the Marriage Law Foundation, William Eskridge of Yale Law School, and Kenji Yoshino of NYU School of Law.
Menu of coverage:
- Same-sex marriage I: The constitutional standard
- Same-sex marriage II: The arguments for
- Same-sex marriage III: The arguments against
- Same-sex marriage IV: The Court’s options
- Court to consider same-sex marriage cases: In Plain English
- The archive of all of our same-sex marriage coverage, including two online symposia, is here.
- Lyle’s post on the eleventh and most recent petition on same-sex marriage – which seeks review of Nevada’s ban on same-sex marriage – is here.
The petition of the day is:
Issue: Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the Third Circuit has held).
Lawyers for a group defending Nevada’s ban on same-sex marriage asked the Supreme Court on Wednesday afternoon to decide the most basic constitutional question in that controversy: must a state allow gays and lesbians to get married? That is an issue that no other pending case at the Court has raised. The new case involves a Nevada federal judge’s ruling that there is no constitutional right to same-sex marriage, and the new petition seeks to defend that even while asking the Justices to step in.
“After twenty years of intense judicial and extra-judicial engagement with the question of the public meaning of marriage, the Nation is now looking to this Court for the federal constitutional answer to the fundamental marriage issue,” the petition said.
The case is Coalition for the Protection of Marriage v. Beverly Sevcik; it is a plea for the Court to hear the case directly from the federal district court in Reno without waiting for a ruling on the case by the Ninth Circuit Court. The petition and appendix with the district judge’s ruling can be found here. The case has not yet been assigned a docket number.
At this point, it is not clear whether the filing of this new and different challenge will have any effect on the Court’s consideration of ten other pending petitions on same-sex marriage. The Court is scheduled to consider those other petitions at its private Conference on Friday. Unless the Court chooses to take up the Nevada petition, too, it otherwise would not be ready for consideration for several weeks.
Lawyers for Michigan, moving rapidly with a new case on the use of race in college admissions, have laid out a plan to get the Supreme Court to hear and decide the case in the current Term. If the plan works, the Court would probably be reviewing the case before it decides the already-argued case from the University of Texas. The two cases are related but are, in fact, quite different.
The new case is Schuette v. Coalition to Defend Affirmative Action (docket 12-682). The state filed its petition for review on November 28, less than two weeks after the en banc Sixth Circuit Court had overturned a state ban on affirmative action. Ordinarily, the state would have had ninety days to file. The state’s petition is here; the Circuit Court’s ruling is here. This blog discussed the decision in this post.
The transcript in Chafin v. Chafin is here.
Yesterday the Court issued its opinion in Arkansas Game & Fish Commission v. United States. In a unanimous decision by Justice Ginsburg, the Court held that recurrent flooding which is induced by the government and temporary in duration is not automatically exempt from liability under the Takings Clause. Lyle covered the opinion for this blog; other coverage comes from Greg Stohr of Bloomberg News, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, Debra Cassens Weiss of the ABA Journal, Richard Wolf of USA Today, Michael Doyle of McClatchy Newspapers, Lawrence Hurley at Greenwire, Steven D. Schwinn at Constitutional Law Prof Blog, Carrie Severino of the National Review Online, Terry Baynes and Jonathan Stempel of Reuters, and the Associated Press. In commentary on the opinion at the Volokh Conspiracy, Ilya Somin lamented that, “unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking,” while at Cato@Liberty Roger Pilon suggested that the decision is “not an unqualified win for property owners.” Continue reading »
If you are offered a Supreme Court appointment, take it. Life tenure? Love it. Same for the Court’s almost absolute power to set its agenda.
But why only “almost” absolute? The Constitution lets the Justices decide only actual “controversies.” Without a live lawsuit, they have no more power than you or me.
And they cannot duck every issue. Their settled practice is to review every lower-court decision striking down an important law.
The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.
In fact, these are test cases. On day one, the lawyers knew that persuading the lower courts just meant they would end up here. They wanted to force the Justices’ hands.
It worked. Even if the Court wants to stay out, it cannot. Whoever wins, and whoever loses, the Court’s decision won’t be “judicial activism.” Not in the sense of the Court injecting itself into the question.
At Monday’s oral argument in Genesis HealthCare Corp. v. Symczyk, the Court considered whether a Fair Labor Standards Act collective action is moot when the employer offers to provide the plaintiff with everything that she sought. Tomorrow at 10 a.m., in Chafin v. Chafin, the Court will return to the topic of mootness again, albeit in a very different context: international child abduction.
The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Under the Convention, if a child is taken from one signatory country to another, a parent who seeks the child’s return can file a petition in the courts of the country where the child is located. If that court determines that the child has been wrongfully removed or retained, in violation of a parent’s custody rights, the child must be promptly returned to her country of habitual residence so that the courts there can resolve any disputes relating to custody. The Convention, however, does not address the question at issue before the Court this morning: what happens if the child returns to her country of habitual residence while the case is on appeal? Is the case moot? Continue reading »
At its December 7, 2012 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of the Defense of Marriage Act and California’s Proposition 8, the definition of “hot pursuit,” limits of arbitrator power, and pharmaceutical “reverse payments.”
This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.
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