Friday, March 17, 2023
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- West Virginia has asked the Supreme Court to vacate in an injunction in a transgender rights case, West Virginia v. B.P.J. The injunction bans a law that prohibits trans-identified boys from competing on female-only sports teams at the secondary and university level. If the Court reaches the merits, it may be the first case where the Court will determine whether the Constitution protects against anti-trans discrimination. See report from Vox.
- The United States Courts posted this News Release announcing that the Judiciary’s 2022 Annual Report and Statics is now available.
- The Supreme Court’s memorial for Justice Ruth Bader Ginsberg was held today, Friday, March 17. See a report from the Associated Press.
Appellate Court Opinions and News
The Fifth Circuit has refused to recognize the state-created danger doctrine, which is an exception to the general rule that the government has no duty to protect against privately caused harm. Although recognizing that a majority of federal circuits recognize the doctrine and noting that the “facts giving rise to [the] lawsuit are unquestionable horrific,” the Fifth Circuit found that the state-created danger doctrine was not clearly established in the Fifth circuit and cited the recent Dobbs opinion as a basis for not expanding substantive due process rights without careful consideration, including considering whether the right is “deeply rooted in the Nation’s history and tradition.” Thus, the court ruled that a school enjoyed qualified immunity from liability regarding the repeated sexual assault of a severely disabled public-school student on school grounds. In the case, school officials not only knew in advance of the first assault that the victim required supervision at all times and that her attacker had violent tendencies but also knew about the prior attack on the victim by the same attacker before again allowing victim and her attacker to be unsupervised. A dissent posing as a concurrence urged the Fifth Circuit to hear the case en banc and adopt the doctrine, stating “it is well past time for this circuit to be dragged screaming into the 21st century.” See the ruling and reports in The Volokh Conspiracy, Law.com, Courthouse News Service, and Bloomberg (subscription required).
The Eleventh Circuit upheld a Florida law that bans people under 21 from owning a gun. In upholding the ban, the court applied the 2022 Bruen framework that requires the government to demonstrate that the regulation “is consistent with this Nation’s historical tradition of firearm regulation” and cited more than a dozen state law barring people under 21 from buying guns. See the ruling and reports from Reuters and CBS News.
The Ninth Circuit refused to rehear the November 2022 case that ruled that the First Amendment protected an Oregon beauty pageant’s “natural born female” eligibility requirement and allowed the pageant to ban a transgender contestant. See the November 2022 ruling and the order denying rehearing.
State Court Opinions and News
The North Dakota Supreme Court upheld a lower court decisions that blocked an abortion ban and held that the state constitution protects the right to “enjoy and defend life and a right to pursue and obtain safety,” including the right to an abortion to preserve life or health. See the ruling and report from The New York Times.