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Wednesday round-up

By the end of an active day at the Court yesterday—with decisions released in three cases and oral arguments in two—the Court’s decision in Jones v. Harris Associates had garnered the most headlines. In Jones, which the L.A. Times described as “one of this term’s most closely watched business cases,” the Court rejected a Seventh Circuit decision that significantly curtailed investors’ lawsuits over the fees paid to mutual fund investment advisors. Still, Justice Alito’s opinion for the Court emphasized that courts’ role in fee disputes is a limited one.

The New York Times notes that “the standard adopted in Tuesday’s decision was distinctly fuzzy and might provide little concrete guidance to the lower courts,” while the Washington Post observes that “the ruling was so narrow and the standard so broad that both sides of the issue … were able to claim victory.” The National Law Journal reads the “double-victory” result as inherently unstable: “The disagreement over the meaning of Tuesday’s decision likely foreshadows another wave of litigation…” At the Conglomerate blog, William Birdthistle lists the decision’s surprising features, including that it is “unanimous, remarkably short, and almost entirely without fragmented opinions.” In two posts at Concurring Opinions, Lawrence Cunningham recaps the decision and also spots an erroneous statement and citation within the Alito opinion. The Wall Street Journal, Bloomberg, U.S. News & World Report,, and Courthouse News Service all have coverage.

The Court’s second decision yesterday, Graham County Soil & Water Conservation District v. U.S. ex rel. Wilson, limits whistle-blower actions but may have a muted and short-lived impact under the new healthcare reform law. As Joan Biskupic reports for USA TODAY, “Congress amended the disputed provision [of the False Claims Act] as part of the health care overhaul that became law March 23.” Lyle Denniston wrote for SCOTUSblog that “[t]he Court took note of that change in a footnote, but appeared to have limited its ruling to so-called ‘false claims’ cases that had been pursued previously. Even so, it appears that there may be a lingering dispute over whether the change in the law applies retroactively.” Marcia Coyle notes at the BLT that the case elicited Justice Sotomayor’s first dissenting opinion, while Bloomberg, Courthouse News Service, and John Elwood at the Volokh Conspiracy have further analysis.

In the final decision of the day, Berghuis v. Smith, the Court unanimously refused to provide a standard for determining when juries are racially unrepresentative. UPI describes the ruling, and Kent Scheidegger offers his analysis at the Crime and Consequences blog.

The Court heard argument yesterday in two criminal sentencing cases, Dillon v. United States and Barber v. Thomas, which were previewed for SCOTUSblog by Troy Cahill and Carl Cecere, respectively. At issue in Dillon is whether federal judges can reduce a crack sentence beyond the reduction specified by the U.S. Sentencing Commission. Courthouse News Service has a detailed recap of the argument, and Josh Gerstein at Politico observed that Justice Kennedy “seemed to prod President Barack Obama, who has yet to issue a single pardon or commutation, to wield the clemency power granted to chief executives.” The Barber argument was particularly lively, according to reports. Bill Mears of CNN reports that “[t]he justices managed to crack themselves up—along with the public audience—at least a dozen times in the hourlong oral debate.” and Courthouse News Service both have stories on the Barber argument, in which the Court considered how prison sentence reductions for good behavior should be calculated.

Anticipation is high for today’s argument in Carachuri-Rosendo v. Holder, a challenge to the way in which the United States interprets immigration laws about drug infractions. As the New York Times explains in an argument preview, “[t]he government maintains that for deportation purposes, two convictions for drug possession add up to the equivalent of drug trafficking, an ‘aggravated felony’ that requires expulsion and prohibits immigration courts from granting exceptions based on individual life circumstances.” The Washington Post has an editorial on the case, arguing that “Congress intended mandatory deportation for drug traffickers and other serious offenders, not for those who possess minuscule amounts of marijuana or one anti-anxiety pill.” An editorial in El Diario agrees: “The Court should recognize that tying the hands of immigration judges pushes beyond the scope of Congressional intent and undermines our judicial system.” Anna Christensen previews the case for SCOTUSblog here.

A new wrinkle has developed in another hotly anticipated case. In the funeral protest case that will be argued next Term, Snyder v. Phelps, the Fourth Circuit ruled on Friday that Albert Snyder, the father of a Marine killed in Iraq, must pay Westboro Baptist Church, the group that protested his son’s funeral, $16,500 in legal fees. Snyder says he refuses to pay until the Supreme Court has ruled on the merits of his case, reports the Christian Science Monitor. Baltimore Sun reporter Robbie Whelan describes a recently launched “grass roots fundraising effort to help the grieving family.”

Chatter continues over a Vanity Fair/CBS News poll (mentioned in yesterday’s round-up) indicating that fifty-five percent of Americans would support an openly gay Supreme Court nominee. (Forty percent said they oppose the idea of an openly gay Justice.) The WSJ Law Blog, Above the Law, and the ABA Journal all took note of the poll results yesterday.


  • In a speech at Texas Wesleyan School of Law yesterday, Ken Starr told students that being passed over for a seat on the Supreme Court is the one key disappointment of his professional career. The Fort Worth Star-Telegram has the report.
  • An editorial in the L.A. Times laments the denial of cert. in Nurre v. Whitehead, one of SCOTUSblog’s “Petitions to Watch.” The editorial board thinks the “Court missed an opportunity . . . to tell skittish school administrators that not every reference to religion in school activities is a violation of the separation of church and state.”
  • Georgetown law professor Richard Lazarus has a column in the Environmental Forum that revisits the oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection and explores the significance of Justice Stevens’s apparent recusal. [Disclosure: my law school clinic represents some of the respondents in the case.]
  • Orin Kerr has a substantial post at the Volokh Conspiracy about City of Ontario v. Quon, the texting-on-government-pagers case to be argued on April 19. Kerr says that “the really key question isn’t whether the government access violated the rights of the government employee who had received notice; Rather, it was whether the government access violated the rights of the folks on the other end of the communications.” [Disclosure: my law school clinic represents amici in support of respondents in the case.]
  • C-SPAN has video of two recent Court-related events: a discussion between Justices Scalia and Breyer on the Constitution and originalism, and a National Association of Women Judges panel featuring Justices Ginsburg and Sotomayor.
  • Hannah Buxbaum offers her take on Monday’s argument in Morrison v. National Australia Bank at the Conglomerate.
  • Marcia Coyle of the National Law Journal reports that the Tribal Supreme Court Project is happy to keep Indian law cases away from the Supreme Court.
  • Retired Justice Sandra Day O’Connor spoke at Pomona College yesterday on education and the courts. The Inland Valley Daily Bulletin covered the speech.