Yesterday’s coverage of the Court focused on Justice Ginsburg’s denial of an emergency stay application stemming from a challenge to the President’s authority to make recess appointments, as well as coverage of upcoming cases slated for oral argument.

At this blog, Lyle Denniston reports that Justice Ginsburg denied a nursing home company’s request to stay enforcement of an order by the National Labor Relations Board. The application followed a recent decision by the U.S. Court of Appeals for the D.C. Circuit holding that President Obama’s recess appointments to the NLRB were unconstitutional. The company responded to the denial by asking to have its application referred to Justice Scalia.  Additional coverage of the emergency application comes from Marcia Coyle at The BLT, Josh Gerstein at Politico, Jacob Gershman of The Wall Street Journal (subscription required), Shannon Bream of Fox News, and Lawrence Hurley of Reuters. In an op-ed for The National Law Journal, Victor Williams argues that the D.C. Circuit’s ruling proves that “the DOJ should forcefully adopt the political question alternative defense” in response to challenges to the President’s power to make recess appointments.

Yesterday, this blog launched an online symposium on Association for Molecular Pathology v. Myraid Genetics, Inc., in which the Court will consider whether human genes are patentable. Lyle Denniston provides background on the case with a “Made simple” post, while our first contributor, Arti Rai, posits that “[p]redicting what will happen in [Myriad] . . . requires analyzing not only the Court’s patent jurisprudence as a whole but also its specific interest in subject matter eligibility.” Dan Burk argues that the case presents an opportunity for the Court to “correct course” in its interpretation of the federal Patent Act, but that “if the Court’s recent subject matter opinions . . . are any indication, the Court is likely . . . to dig itself deeper into the hole it has been excavating in the subject matter area.”

Daniel Fisher of Forbes previews American Express v. Italian Colors Restaurant, in which the Court will consider whether a court may invalidate arbitration agreements because they do not permit class arbitration of a federal law claim. On the same-sex marriage issue, Adam Liptak of The New York Times reports on President Obama’s shift from advocating state-based solutions to a nationwide approach and what implications this might have for the Solicitor General as he prepares to file briefs on behalf of the government in United States v. Windsor and Hollingsworth v. Perry.


  • Jodi Kantor of The New York Times concludes that Justice Sotomayor’s “release of her new memoir, My Beloved World, suggests that she may have broader ambitions than her colleagues, to play a larger and more personal role on the public stage.”
  • At The BLT, Mike Scarcella reports that the Justice Department filed a brief opposing review of the D.C. Circuit’s en banc ruling involving an automatic weapons charge under federal law. (Hat tip: How Appealing.)
  • Alicia Gallegos at American Medical News writes about the Court’s recent opinion in Sebelius v. Auburn Regional Medical Center, holding that “equitable tolling,” a doctrine allowing courts to waive filing deadlines under extraordinary circumstances, does not apply to late appeals of Medicare underpayments.
  • Erin Fuchs of Business Insider interviews a former clerk to Justice Ginsburg, who reveals that the most difficult aspect of the prestigious job for him was handling last-minute petitions to halt executions.

Posted in Round-up, Everything Else

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Feb. 5, 2013, 9:38 AM),