ORDER LIST: 3 new grants

Three new substantive grants:

Luis v. United States: Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

- Shapiro v. Mack: Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).

- Tyson Foods v. Bouaphakeo: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

- There are 15 GVRs based on various cases recently decided by the Court (Order list pp 1-2).

- Cert is denied in gun rights case Jackson v. City and County of San Francisco.  Justice Thomas dissents from the denial, joined by Justice Scalia (Order list pp. 11-16).

- No action taken on the Mississippi abortion or Fisher v. Univ. of Texas cases.


(1) Zivotofsky v. Kerry: By a vote of 6 to 3 the judgment of the D.C. Circuit is affirmed.  Per Justice Kennedy's opinion for the Court: "The Court addresses two questions to resolve the interbranch dispute now before it. First, it must determine whether the President has the exclusive power to grant formal recognition to a foreign sovereign. Second, if he has that power, the Court must determine whether Congress can command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition. The statement in question here is a congressional mandate that allows a United States citizen born in Jerusalem to direct the President and Secretary of State, when issuing his passport, to state that his place of birth is Israel....[T]he power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone....As the power to recognize foreign states resides in the President alone, the question becomes whether §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem....If Congress may not pass a law, speaking in its own voice, that effects formal recognition, then it follows that it may not force the President himself to contradict his earlier statement. That congressional command would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations. Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State. See Urtetiqui v. D’Arcy, 9 Pet. 692, 699 (1835) (a passport 'from its nature and object, is addressed to foreign powers' and 'is to be considered . . . in the character of a political document'). As a result, it is unconstitutional....In holding §214(d) invalid the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports."

Justice Kennedy's opinion for the Court was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Breyer also filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. The Chief Justice filed a dissenting opinion that was joined by Justice Alito.  Justice Scalia filed a dissenting opinion that was joined by the Chief Justice and Justice Alito.