Showing posts from February, 2018

Updates: DACA, Alabama Death Penalty Case, Big Title VII Case

Today (February 26) was order day at the Supreme Court, and there were two major ones, both cases followed by this blog.  This post is a brief summary of those orders and a major decision from the Second Circuit on anti-gay employment discrimination under Title VII which is almost certain to end up on the certiorari docket. DACA : The Supreme Cout unanimously denied the government's petition for certiorari before judgment.  The order reads:  17-1003   DEPT. OF HOMELAND SEC., ET AL. V. REGENTS OF UNIV. OF CA, ET AL.  The petition for a writ of certiorari before judgment is denied without prejudice. It is assumed that the Court of Appeals will proceed expeditiously to decide this case. I first posted about this case on January 17 and said then that the government's attempt to get the Court to bypass the Ninth Circuit was a long shot and very unlikely to succeed.  That prediction turned out to be right.  Not a single justice thought that the case met Supreme

A Minor DACA Surprise, More On Guns (Including A Catty Dissent) And The Latest Opinions

Well, we thought that on Tuesday (February 20) we would see the order from the Court on the government's petition for certiorari before judgment in the DACA case out of the Ninth Circuit.  (You can see my posts about cert before judgment in the DACA case  here  and a brief follow-up here ).  It came as a minor surprise that we did not, mostly because the Court granted the government's request for expedited briefing.  Most commentators think it will be discussed again at the Friday (February 23) conference, which I do think is the most likely scenario, although there is the possibility that a decision has already been made and they are waiting on dissents before releasing it. *********************** My last post  was about the Second Amendment and what the current law is on the subject of guns and guns ownership.  In the February 20 order list , two gun law related cert petitions were denied.  One of these,  Sylvester, et al. v. Becerra, Attorney General of California ,

The Second Amendment: What The Law Is

The Second Amendment has long been the source of great controversy, and no more so than now with the rash of mass shootings, particularly at schools.  This post aims to deal with one thing and one thing only: what the law of the Second Amendment is.  This is, after all, a legal education blog, not a legal policy blog.  I will at the end of the post draw a  policy conclusion from the existing law, but otherwise, it will be straight law.  Aside from this being the reason why this blog was started, I find (a personal point of view here) that there is plenty of argument about the issue of the right to bear arms from a "the law ought  to be this" point of view but much less from the "this is what the law is " perspective.  The starting point of many arguments is what should be the conclusion.  Maybe it's how I was trained as a lawyer, but I think you ought to start with where the law is, knowing full well that it is going to change.  Notice I did not say evolve:

Results, Holdings, and Plurality Opinions

When the Supreme Court issues an opinion (in Supreme Court speak when an opinion is "handed down") it's important to distinguish which side won (a very simple task) from what the case holds (a task that can challenge even the best lawyers and judges).  This distinction--results versus holdings--is always important and may become crucial this term with many important, highly complex, and hotly disputed cases.  I hope this long post helps you sort through what could be some very confusing cases.   Let's start with simple arithmetic and a simple case.  Let's say the case is from the Third Circuit and one for which the Supreme Court granted cert: call it P v. R.   P is the petitioner, who got his cert petition granted and wants the Supreme Court to reverse the Third Circuit.  R is the respondent who didn't want cert granted and wants the Third Circuit to be affirmed.    The Court has nine members.  If a majority (5 or more) of the Court agrees with P that th