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Wednesday round-up

The Court issued one decision yesterday, in United Student Aid Funds v. Espinosa, allowing an improperly approved bankruptcy plan for a student loan to stand because the lender waited too long to question it in court.  Elie Mystal of Above the Law describes the decision as “a minor victory for student debtors everywhere,” while Adam Liptak of the New York Times predicted that “the ruling is unlikely to have a broad impact.”  Even so, Justice Thomas’s unanimous opinion rejected “the views of 33 states, the federal government, and the student loan industry” (Tony Mauro at the BLT) and “applies to any bankruptcy matter, whether it is GM, the local shoe store or a single-student borrower and lender” (Nina Totenberg for NPR’s All Things Considered).  Courthouse News Service also has a report.

After Justice Thomas announced his opinion in United Student Aid Funds yesterday, the Court heard oral argument in New Process Steel v. NLRB, which asks whether the National Labor Relations Board has the authority to decide labor-management disputes with only two sitting members. Slate, ACSblog, and the National Law Journal all have recaps of the argument.

Even with those developments, news stories invoked the Supreme Court most often yesterday in relation to constitutional challenges to healthcare reform brought by fourteen state attorneys general in federal court.  One of those attorneys general (Nebraska’s Jon Bruning) expects the case to reach the Supreme Court in short order, reports The Hill.  According to Rob Kall at the Huffington Post, Idaho’s attorney general thinks it will be at the Court in eleven to thirteen months.  At the Volokh Conspiracy, however, Orin Kerr explains the difficulty of getting a circuit split on the issue, which he predicts will be necessary for the Court to take the case.

If the constitutional challenge does reach the Court, Adam Winkler writes for the Daily Beast that “[h]ealth-care opponents’ arguments against the law are without merit. But that doesn’t mean those arguments won’t be successful in the Supreme Court.”  Jonathan Adler at the Volokh Conspiracy thinks the chance of such a result is unlikely but “non-trivial.”  Sandy Levinson at Balkinization, however, remains unconvinced: “I continue to believe that it is extremely unlikely that even the current conservative Republican Supreme Court would strike down the bill.”  Elie Mystal concurs at Above the Law: “I just don’t see how the Court takes this opportunity to stop the relentless expansion of the interstate commerce clause by overturning the most contentious public policy issue of our generation.”  On her Court Beat blog, Joan Biskupic cautions those making predictions that the Court may change membership before the challenge reaches it, and that the current Justices are not always predictable in Commerce Clause cases.

In nominations news, Tony Mauro reports for the National Law Journal that the White House is prepared to move quickly on a nominee should Justice Stevens retire before the end of the Term.  “Knowledgeable sources say the president is likely to work off the same dossiers [compiled for the Souter vacancy], now being updated. The list includes Solicitor General Elena Kagan, appeals court Judges Diane Wood and Merrick Garland, and Homeland Security Secretary Janet Napolitano.”  In an article on Judge Wood for USA Today, Joan Biskupic notes a longstanding pattern that “runners-up [for a prior nomination] often lead the short list for a new vacancy.” Mauro also sheds light on some of the short-listers’ connections to the White House: “[F]amed Harvard Law School professor Laurence Tribe, a fan of Kagan’s, is ensconced in the Justice Department as an adviser to Attorney General Eric Holder Jr. For Garland, it also can’t hurt that two of his former clerks, Danielle Gray and Jonathan Kravis, are attorneys in the White House counsel’s office. Gray plays a key role in screening judicial nominees.”  Meanwhile, James Oliphant suggests in the L.A. Times that today’s hearing on Goodwin Liu’s nomination to the Ninth Circuit will offer “a preview of a possible Supreme Court fight later this summer.”


  • The BLT and the (Minneapolis-St. Paul) Star Tribune report that the so-called Franken Amendment caused defense contractor KBR to withdraw its cert. petition in a high-profile case in which a former employee alleges she was raped by coworkers in Iraq in 2005.  The Franken Amendment shields defense workers from mandatory arbitration when resolving sexual assault, battery, or discrimination disputes. Lyle Denniston of this blog covered the development on Monday.
  • On his blog, Josh Blackman has a rough transcript of a conversation between Justices Scalia and Breyer on original intent and the living Constitution, an event that was hosted yesterday by the Supreme Court Historical Society.
  • Tunku Varadarajan looks to the U.S. Supreme Court’s past to imagine the new U.K. Supreme Court’s future, in the Wall Street Journal.
  • The National Law Journal’s Tresa Baldas has a story on Kasten v. Saint-Gobain Performance Plastics Corp., a retaliation case in which cert. was granted on Monday, as well as a report on the Court’s rejection of Michigan’s plea for a preliminary emergency injunction to close Chicago locks.
  • At the Foundation for Individual Rights in Education, Erica Goldberg previews Christian Legal Society v. Martinez, a religion-and-education case set to be argued next month.
  • At Concurring Opinions, Christopher Wolf has an essay on privacy and the Court’s recent intervention into the proceedings of the Proposition 8 trial in California.
  • The Federalist Society offers a post-decision “SCOTUScast,” in which Kevin Govern discusses the Court’s decision in Johnson v. United States, released earlier this month.
  • At Connecticut Employment Law Blog, Daniel Schwartz invites readers to “tweet your favorite U.S. Supreme Court case.”