Breaking News

Monday round-up

The Court will hear argument in two cases this morning: Astrue v. Ratliff and Lewis v. City of Chicago.  Matt Sundquist previewed Astrue, a case about fee awards under the Equal Access to Justice Act, for SCOTUSblog last week.  Today the blog has Josh Friedman’s preview of Lewis, which has been described as the “flip side” of last Term’s Ricci v. DeStefano blockbuster about New Haven firefighters; the L.A. Times and the Washington Post also cover the case, and the New York Times has an editorial urging the Court to hold that the minority applicants’ discrimination complaints against the City of Chicago were timely.

The Solicitor General and a host of tobacco companies filed dueling petitions on Friday, with $280 billion potentially at stake.  Even beyond the large sum sought by the government, CNN reports that the petitions present an underlying circuit split on whether disgorgement remedies are permitted under RICO, the anti-racketeering statute.  The New York Times notes that Solicitor General Elena Kagan “worked on antitobacco legislative issues in the Clinton White House,” which tobacco critics see as a “positive sign.”  (The case was originally filed by the Clinton Administration in 1999.)  Lyle Denniston of this blog, the BLT, and Bloomberg all offer further coverage of the petitions.

Jeffrey Rosen’s suggestion in the Washington Post that President Obama is well-suited to serve on the Supreme Court has drawn several reactions over the last few days (see Friday’s round-up for one).  David Lat weighs in on the piece at Above the Law, while Paul Horwitz writes at PrawfsBlawg that “[a]lthough it’s enjoyable, I think it’s mistaken in some important ways.”  Horwitz concludes that “Justice Obama would not be the same person as President Obama.”

Jess Bravin’s Wall Street Journal article (noted in Friday’s round-up) about the “odd alliances” forming on either side of the Second Amendment incorporation case, McDonald v. City of Chicago, has also generated commentary.  Bravin’s article noted a passage in Justice Scalia’s 1997 book, A Matter of Interpretation, in which the Justice wrote of the Second Amendment: “Of course, properly understood, it is no limitation upon arms control by the states.” Damon W. Root of Reason’s Hit & Run blog argues that Justice Scalia would not be “flip-flopping” if he incorporates the Second Amendment through the Privileges or Immunities Clause rather than the Fourteenth Amendment.  Josh Blackman elaborates, explaining that “what Scalia wrote is entirely consistent with using the Privileges or Immunities Clause to extend the right to keep and bear arms to the state.”  ACSblog also takes note of the article.

On Friday, Lyle Denniston of this blog analyzed the latest filings in Kiyemba v. Obama, the Uighur detention case.  The Court asked for the supplemental filings on whether the case should proceed now that the government has brokered a resettlement option for each of the Uighurs detained at Guantanamo.  Lyle writes that “the filing by Justice Department lawyers marked the first time that they conceded that circumstances might exist to keep the case alive.”

Tony Mauro of the National Law Journal marks the fourth anniversary of Justice Thomas’s last question during oral arguments, suggesting that “it may be time to take Thomas’ silence more seriously.”  Mauro highlights a student article in the Florida Law Review arguing that “Thomas’ silence actually damages the Court and its decision-making process—not to mention Thomas’ own reputation.”  The National Law Journal also has excerpts from what it describes Justice Thomas’s “most memorable questions at oral argument,” during a 2002 cross-burning case, Virginia v. Black.


  • The American Constitution Society announced a panel discussion, “Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead,” to be held this Wednesday at the National Press Club in Washington.  More details and registration are available here.
  • The Associated Press (via the Washington Post) reports that Manuel Noriega has filed a petition for rehearing to block his extradition to France, relying heavily on Justice Thomas’s dissent from the denial of cert. in the case last month.
  • The states and Congress are wrestling with whether and how to write judicial recusal rules for state and federal judges, according to the Associated Press (via the Washington Post).
  • Josh Blackman has a statistical analysis of the extent to which the Justices are perceived as partisan (cross-posted at Above the Law).
  • United Press International offers an in-depth preview of Holder v. Humanitarian Law Project, which will be argued at the Court tomorrow.