Author: Joshua Matz

The fate of the Ninth Circuit's opinion in Perry v. Brown continues to draw heavy coverage.  Ariane de Vogue of ABC News discusses reactions to the decision from gay rights advocates who would prefer that the Court either decline to review the case or, at most, issue only a narrow opinion, while at Slate Will Oremus explains why gay-rights leaders don’t want this case to reach the Court at all.  David Cole echoes this theme at the blog of the New York Review of Books, warning that (and explaining why) "a loss in the Supreme Court could set the gay rights movement back for decades."  Striking a different note, Dale Carpenter of the Volokh Conspiracy argues that "a loss in the Supreme Court could be much more narrow," leaving open "other, more completely theorized, arguments for same-sex marriage"; Ilya Somin disagrees, contending that "[i]f the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well."  Finally, Adam Bink of The Huffington Post offers a general discussion of whether the Court is likely to grant cert., the potential timeline for Supreme Court review, and how the Court might ultimately rule on the merits.  [Note:  The author of this post will serve as a law clerk to Judge Stephen Reinhardt, author of the Perry majority opinion, in 2013-2014, but he has not been involved in the Proposition 8 litigation.] Yesterday, the Senate Judiciary Committee voted 11-7 to advance a bill that would permit the Court to televise its proceedings if the Court were to change its mind and allow cameras.  The Wall Street Journal Law Blog, C-SPAN, Reuters, Wired, and the Blog of the Legal Times all provide coverage.

Last week’s decision in United States v. Jones, the GPS tracking case, remained a popular topic for commentators over the weekend.  In an op-ed for the New York Times, Barry Friedman contends that in an age of lives lived online, Jones “may turn the Fourth Amendment into a ticking time bomb, set to self-destruct – and soon – in the face of rapidly emerging technology.”  Renée Hutchins strikes a similar chord in an op-ed for the Baltimore Sun, describing the majority’s focus on trespass as “miss[ing] a momentous opportunity to speak clearly in a brave new world.”  The editorial boards of the Salt Lake Tribune and Dallas Morning News similarly emphasized the opinion’s lack of guidance, while the New York Daily News expresses concern that the decision “will make it hard for cops to get bad guys.” Others commentators struck a more positive note.  Daniel Solove of Concurring Opinions observes that the “concurring opinions indicate five votes for a broader[,] more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy.”  The editorial boards of the Buffalo News and Burlington Times News praise the decision as drawing a line in defense of privacy from government intrusion, while Mark Fitzgibbons – in an op-ed for the Washington Examiner – applauds the decision as an “important Fourth Amendment win for conservatives.” Other commentary on the decision comes from Lior Strahilevitz in an op-ed for the Chicago Tribune, Berin Szoka and Charlie Kennedy of CNET, the editorial board of the Boston Globe, and Kenneth Jost of Jost on Justice.  Finally, NPR’s On the Media interviewed Orin Kerr about the opinion.

Last week, the Court issued a per curiam opinion in the Texas redistricting case, Perry v. Perez.  In that case, the Court returned the judge-drawn interim legislative district maps to the district court, with instructions to redraw the maps with greater deference to the redistricting plan already created by the Texas legislature and currently awaiting preclearance from the district court in Washington, D.C.  The Court’s decision was followed shortly thereafter by a brief order staying the decision of a three-judge district court panel in a West Virginia redistricting case.  Lyle Denniston of this blog covered the Court’s opinion here and the order here.  Kali then rounded up many of the immediate reactions to the decision.  Coverage and commentary continued through the weekend, from Michael Li at Texas Redistricting, Michael Dorf at Dorf on Law, Nina Totenberg at NPR, Michael McGough of the editorial board of the Los Angeles Times, Rick Hasen, Shira Toeplitz, and Ray Suarez at PBS (video with transcript), Alex Isenstadt of Politico, Rick Hasen at his Election Law Blog, John Kennedy of the Palm Beach Post, Justin Levitt at the Election Law Blog, and Joan Biskupic at her Court Beat blog. Responding to last week’s decision in Golan v. Holder, in which the Court held that Congress may remove works from the public domain and restore their copyright protection pursuant to treaty obligations, the editorial board of the Los Angeles Times argues that the Court “misread[] the 1st Amendment and copyright law” and made it “more difficult for Americans to enjoy foreign works of art, including decades-old musical and literary masterpieces.”  Julie Hilden also covers the decision at Verdict; she suggests that the Court should have “spoken up more loudly for creators generally, and for the central role they play—a role that the First Amendment and Copyright and Patent Clause clearly recognize, but that the Court somehow does not.”

After its Conference last Friday, the Court announced two new cert. grants, both of which Lyle covered for this blog.  In Salazar v. Ramah Navajo Chapter, the Court will consider whether the federal government must repay Indian tribes all of what they actually spend when they run a federal program in place of a government agency.  And in Florida v. Jardines, the Court will have an opportunity to clarify when police may use a drug-sniffing dog at the front door of a house.  The grant in Jardines drew coverage from Bloomberg News, the Los Angeles Times, the Washington Post, the Christian Science Monitor, BBC, Wired, the Hawaii News Daily, the Huffington Post, the Wall Street Journal Law Blog, and the Associated Press, Reuters; Kent Scheidegger of Crime & Consequences weighs in on the merits (as did Orin Kerr of the Volokh Conspiracy back in late December). As Lyle reports, Friday was an exciting day at the Court for another reason:  the federal government filed its opening merits brief in the health care litigation, defending the individual mandate, while twenty-six states and a business trade group filed their merits briefs arguing that the mandate cannot be severed from the rest of the Affordable Care Act.  Bloomberg News, the Washington Post, CNN, the National Journal, the Washington Times, ABC News, ACS Blog, the Huffington Post, the Associated Press, Reuters, the Constitutional Law Prof Blog, and Politico provide coverage of the filings.

The Court’s growing docket of high-profile cases continues to attract coverage and commentary.  Surveying the Court’s upcoming healthcare, immigration, and redistricting cases, UPI characterizes the cases as part of a “much larger battle over federalism,” Bill Blum of Truthdig describes them as “cases that should worry you,” and at The Daily Beast Adam Winkler contends that the outcomes of these pitched legal battles could “sway the presidential election.” Emphasizing the dispute over state-federal relations in Arizona v. United States, Carolyn Coleman of National League of Cities describes it as a test of “states’ rights to limit the way undocumented immigrants live in the United States,” while at Dorf on Law, Michael Dorf emphasizes that the case is “at least as much about how to allocate power between Congress and the President as it is about the balance of power between the states and the federal government.”  The editorial board of the Denver Post urges the Court to “see the matter for what it is – an encroachment on the federal government’s mandate to set immigration policy,” while the editorial board of the Boston Globe also weighs in, arguing that although the Court “will only hear legal arguments about the Constitution and states’ rights,”  “the public also needs to weigh the impact that these hastily designed crackdowns have not just on illegal immigrants, but also on the economy, the legal system, and the rights of all citizens.” Jeremy Leaming of ACSblog discusses an American Constitution Society issue brief which concludes that last Term’s decision in Chamber of Commerce v. Whiting, upholding another Arizona law seeking to regulate illegal immigration, “will likely have no bearing” on the Court’s decision this Term.

At 10 a.m., the Court is expected to issue orders from its December 9 Conference, as well as one or more opinions.  One of the cases that the Justices considered at their Conference last week was Arizona v. United States, in which the state has asked the Court to review the Ninth Circuit’s decision blocking enforcement of four provisions of S.B. 1070, its controversial immigration law.  The Los Angeles Times, UPI, the Associated Press (via the Washington Post), and the International Business Times all have coverage.  Last summer this blog held a symposium on the case, which Stephen Wermiel also discussed last week in his column for law students and which was also a recent topic of discussion in the blog’s Community.  Also on last week’s Conference was Bluman v. FEC, a case about the constitutionality of limits on independent expenditures and campaign contributions made by individuals who lawfully reside in the United States, but are neither U.S. citizens nor “permanent residents.”  Rick Hasen of the Election Law Blog has coverage of that case. On Friday, the Court agreed to rule on a challenge to the constitutionality of three redistricting plans drawn up by a federal court for the two houses of the Texas legislature and its thirty-six-member U.S. House of Representatives delegation (the Court’s order is here).  Lyle covers the grant of review here and analyzes the issues here.  Greg Stohr of Bloomberg, the Election Law Blog, The Hill, the Austin American-Statesman, the New York Times, the Christian Science Monitor, the Washington Post, the Los Angeles Times, USA Today, the San Antonio Express News, the Fort Worth Star Telegram, the Associated Press, the Texas Tribune, Reuters, The Huffington Post, The Atlantic, and Politico provide coverage.

At 10 a.m., the Court will issue orders from its December 2 Conference.  The Justices will then hear oral argument in two cases.  In Caraco Pharmaceutical Laboratories v. Novo Nordisk (which Ronald Mann previewed for this blog), the Court will consider whether a generic drug manufacturer may sue the company that produces the brand-name version of the drug to require it to correct information filed with the Food and Drug Administration.  In Messerschmidt v. Millender (which Michael Smith previewed for this blog and Orin Kerr also analyzed), it will address police immunity for carrying out overbroad search warrants.  At Concurring Opinions, Kyle Graham explores what might happen in subsequent judicial proceedings if the Court rejects the police officers’ qualified immunity claim. The Court may act as soon as today on a request by Texas to review an opinion by the Fifth Circuit requiring the state to adopt court-ordered interim redistricting maps for upcoming elections to the state legislature and the House of Representatives.  Lyle has covered the controversy extensively for this blog; Ross Ramsey of the Texas Tribune, Michael Kirkland of UPI, and David G. Savage of the Los Angeles Times also provide coverage.  The editorial board of the New York Times also weighs in, arguing that if Texas “really wants to keep the courts out of the process,” it should adopt nonpartisan redistricting commissions.

Today, the Court begins the December sitting with oral arguments in two cases.  In Mims v. Arrow Financial Services, LLC, which Ronald Mann previewed for this blog, the Court will consider federal court jurisdiction under the Telephone Consumer Protection Act.  And in First American Financial Corp. v. Edwards, which Christopher Wright previewed for this blog and James Vicini previewed for Reuters, the Court will consider the “injury in fact” prong of Article III standing under the Real Estate Settlement Services Act. Discussion of the Affordable Care Act turned primarily to debates over judicial recusal, with a focus on Justices Thomas and Kagan.  Lyle summarizes the arguments here, while Mark Sherman of the Associated Press and Robert Barnes of the Washington Post also provide coverage of the debate; Roger Pilon weighs in on the merits of the debate at CATO@Liberty, as does Carrie Severino of the Judicial Crisis Network in an op-ed in the Washington Examiner.  At New York Magazine, Dahlia Lithwick examines Justice Kagan’s first year on the Court, emphasizing that “[p]eople who think Justice Elena Kagan should recuse herself from the looming ‘Obamacare’ case might want to take a closer look at her first term … while Kagan is assuredly a liberal, and likely also a fan of the health-reform law, a close read of her tenure at the Supreme Court suggests that she is in fact the opposite of a progressive zealot.”

Commentary on the Court remains focused on the Court’s announcement that it will weigh in on the challenges to the Affordable Care Act this Term.  As Amy reported for this blog, on Friday the Court appointed two Supreme Court veterans to brief and argue two of the questions before the Court:  H. Bartow Farr, III will defend the Eleventh Circuit’s determination that the individual mandate provision is severable from the rest of the Act, and Robert Long will argue that the Anti-Injunction Act precludes any challenge to the individual mandate until it goes into effect in 2014.  The WSJ Law Blog, the Blog of the Legal Times, The Hill, Reuters (via the Baltimore Sun), and Adam Liptak at the New York Times Prescriptions Blog all provide coverage of these appointments.

The Court may announce this morning whether it has granted review (and if so, on what grounds) in any of the five cases on last week’s Conference involving challenges to the Affordable Care Act.  MSNBC, the New York Times, McClatchy, the Huffington Post, and the Los Angeles Times all have coverage of the ACA’s path to the Court and the constitutional issues at stake.  (Our recent SCOTUSblog symposium on the law’s constitutionality can be found here; Lyle Denniston posted a thorough analysis of the cases and issues on this blog last week.)  At Bloomberg Businessweek, Noah Feldman argues that Justice Kennedy may rely on the Anti-Injunction Act to avoid deciding whether to strike down the ACA before next year’s presidential election.  The editorial board of the New York Times discusses last week’s decision by the D.C. Circuit rejecting a constitutional challenge to the Act; the board emphasizes that “prominent Republican judges have agreed with the Obama administration that a core element of the health reform law is constitutional” and urges the Court to “affirm these judgments.”  Bruce Brown echoes this sentiment in The New Republic, arguing that the D.C. Circuit’s decision is “deeply significant and a genuine surprise to court watchers—and an extreme disappointment to those opposing the law—because it provides the most authoritative, truly conservative defense of the Act thus far, a defense that should buttress the legal position of the Obama administration before the Supreme Court next year.”  Finally, Robert Barnes of the Washington Post notes “unmistakable comparisons to the court’s action on the Social Security Act of 1935” (which the Court upheld in a pair of cases in 1937).