Wednesday round-up

By Conor McEvily
on Sep 28, 2011 at 11:56 am

Yesterday the Court issued its first order list from Monday’s “Long Conference,” granting certiorari in eight cases, two of which have been consolidated for one hour of oral argument.  In posts for this blog, Kali provides early details on the granted cases, while Lyle discusses some of the more significant cases from the Long Conference on which the Justices did not act yesterday.

Much of the news coverage of the Court focuses on yesterday’s grants:

• In United States v. Home Concrete & Supply, the Court will consider whether the IRS is entitled to an extended assessment period to challenge a particular tax shelter.  In his coverage for Bloomberg, Greg Stohr suggests that the case may “determin[e] how much flexibility the IRS has to adapt to new tax-avoidance strategies.”
• In the consolidated immigration cases Holder v. Gutierrez and Holder v. Sawyers, the Court will consider whether the length of a parent’s lawful residence in the United States can be considered when determining whether the child of that parent may be deported.  The Associated Press (via the Sacramento Bee), Michael Doyle of the Kansas City Star, and Adam Liptak of the New York Times all have coverage of the cases, as does Mike Sacks of the Huffington Post.
• In Filarsky v. Delia, the Court will consider whether private attorneys hired as to work with government employees on an internal investigation are immune from lawsuits.  Adam Liptak of the New York Times covers this case as well, as do the Associated Press (via NPR) and Tony Mauro of the Blog of the Legal Times.
• In Roberts v. Sea-Land Services, the Court will consider the amount of weekly benefits for which employers are liable under the Longshore and Harbor Workers Compensation Act.  Robert Ceniceros of Business Insurance reports on the case.
• At her Appellate Daily blog, Michelle Olsen notes the cert. grant in Taniguchi v. Kan Pacific Saipan, in which the Court will consider whether costs incurred to translate written documents are “compensation of interpreters” for purposes of federal fee-shifting statutes.
• Finally, at Crime and Consequences, Kent Scheidegger suggests that the reasoning behind the grant in the habeas case Wood v. Maynard is “less than clear,” arguing that “the defendant [is] clearly guilty, he got a sentence that is definitely no more than he deserved and arguably less, and the underlying procedural claims are meritless.”

The challenges to the Affordable Care Act continue to generate coverage and commentary, including from retired Justice John Paul Stevens.  In an interview with Bloomberg’s Greg Stohr, the Justice suggested that the Court’s 2005 decision in Gonzales v. Raich, holding that Congress had the power under the Commerce Clause to ban the use of medical marijuana, would support the constitutionality of the Act.   The topic of when the challenges might reach the Court also remains a hot one.  Tom Goldstein at this blog suggests that the federal government’s decision not to seek en banc review of the Eleventh Circuit’s decision striking down the individual mandate as unconstitutional, setting up a probable petition to the Court, was likely prompted by the difficulty implementing a statute as large and complex as the ACA: “the government genuinely needs to know as soon as practicable whether the law in fact is constitutional in whole or in part.”  At the Washington Post’s Wonkblog, Sarah Kliff discusses other reasons why a decision by the Court in 2012 would be more advantageous for the Obama Administration, including the confidence conveyed by the decision to seek Supreme Court review quickly, but David Whelan of Forbes questions whether this confidence is truly warranted.  Additional coverage of (and commentary on) the decision comes from Avik Roy, also of Forbes, Slate’s Dahlia Lithwick, James Vicini of Reuters (via the Chicago Tribune), Alexandra Malatesta of JURIST, Rick Hasen at his Election Law Blog, and Peter Suderman at Reason.

Finally, retired Justice John Paul Stevens made other news yesterday, as did retired Justice Sandra Day O’Connor.  In a Huffington Post interview with Justice Stevens, Mike Sacks observes that the Justice “has kept up a work ethic and travel schedule that hardly befits a nonagenarian retiree,” while Orin Kerr at the Volokh Conspiracy describes the Justice’s forthcoming memoir, Five Chiefs, as “surprisingly interesting.”  And MarketWatch reports on an interview with Justice O’Connor, who continues to “urg[e] educators across the country to enliven civics education and engage students in the democratic process.”

Briefly:

• The Washington Post has a short video of the Justices’ annual “class photo.”
• Richard Brust at the ABA Journal examines Justice Kagan’s use of the word “chutzpah” in her recent dissent in the Arizona campaign finance case Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
• The Brennan Center for Justice previews four of the Court’s upcoming cases that it describes as “rais[ing] important issues of access to justice”: Douglas v. Independent Living Center of Southern California, Maples v. Thomas, Martinez v. Ryan, and CompuCredit Corp. v. Greenwood.
• At the ACSblog, Jeremy Leaming summarizes a new American Constitution Society Issue Brief on the Roberts Court and taxpayer standing in religion cases.
• In United States Law Week, attorneys John S. Summers and Michael J. Newman examine the rates at which the Roberts Court has affirmed and reversed the federal courts of appeals.
• In the most recent addition to this blog’s ongoing symposium on arbitration, Cliff Palefsky discusses AT&T Mobility v. Concepcion and suggests that “the elimination of class actions is not merely a possible result of the decision; rather, it was a pretty clear goal of the majority.”