Order List

May 2, 2005 Supreme Court Update

Greetings, Court Fans!

Before heading off for another two-week recess, the Court released an order list today that included cert grants in two new cases.

The first is Rumsfeld v. Forum for Academic & Institutional Rights ["FAIR"] (04-1152), in which the Court will consider the constitutionality of the "Solomon Amendment," which denies federal funds to colleges that deny equal access to military recruiters, an issue that came to the fore when some universities refused to allow military recruiters on campus in response to the military's "don't ask, don't tell" policy. FAIR, an organization of law schools and law faculties, challenged the Solomon Amendment on the ground that it impeded law schools' right to expressive association and compelled their speech by requiring them to advance the military's policy of excluding homosexuals. The Third Circuit agreed that FAIR was likely to win on its First Amendment claim and entered a preliminary injunction barring the Amendment's enforcement (but the Third Circuit also stayed its order, leaving the Amendment in effect, pending Supreme Court review). The question presented to the Court is: "Whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement?"

It's worth noting that FAIR is not the only Solomon Amendment case before the Court. In Burt v. Rumsfeld, Judge Janet Hall, here in Connecticut District Court, similarly barred enforcement of the Amendment as to Yale University, in a case brought by the Yale Law School faculty. Last week, the faculty petitioned for the Supreme Court to take the case even before the Second Circuit had a chance to review it (04-1434). Obviously, no word from the Court yet on that petition.

The Court also granted cert in LaMarque v. Chavis (04-721), in which it will once again hear a case from the Ninth Circuit, and once again consider the one-year filing deadline for federal habeas petitions. Here's the question presented: "Did the Ninth Circuit contravene this Court's decision in Carey v. Saffold when it held that a prisoner who delayed more than three years before filing a habeas petition with the California Supreme Court did not ‘unreasonably' delay in filing the petition -- and therefore was entitled to tolling during that entire period -- because the California Supreme Court summarily denied the petition without comment or citation, which the Ninth Circuit construes as a denial ‘on the merits'?"

That's all until May 16, when the Court comes back from recess, leaving it seven weeks to get out its decisions in the 35 remaining cases from the term. Until then, thanks for reading!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400