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Thursday round-up

The fourteen cases the Court added to its merits docket on Tuesday, which Lyle and Anna featured on Tuesday and Adam covered in yesterday’s round-up, continue to generate discussion. At Constitutional Law Prof Blog, Steven Schwinn deems General Dynamics Corp. v. United States (and its consolidated companion, The Boeing Co. v. United States), which involves the [Defense] Department’s “invocation of the state secrets privilege,” “one to watch” insofar as it could indicate how the Court might deal with other, more sweeping assertions of the privilege – in, for example, cases involving allegations of extraordinary renditions and torture.  Sara Jerome of The Hill, Tony Mauro (for the First Amendment Center), and  Nathaniel Hindman of the Huffington Post discuss FCC v. AT&T, in which the Court will consider whether the privacy protections of the Freedom of Information Act apply to corporations.

In a series of pieces for CNN, Bill Mears discusses the new Court and the upcoming Term more generally. In one piece, Mears explores whether Justice Kagan will prove to “be a reliable liberal,” while in another he discusses the changed dynamic among the Justices as the Roberts Court finishes its fifth year. Mears speculates that the replacement of Justice Stevens with Justice Kagan will result in a Court that votes even more consistently along partisan lines and that Justice Kennedy’s “‘swing justice’ position” will become “that much more powerful.”  And in a third, he identifies and examines five “key cases” scheduled to be heard this term. Marcia Coyle previews the upcoming term in both a piece for the National Law Journal and an interview for PBS’s Rundown blog, while Daniel Fisher of Forbes’ Full Disclosure blog argues that the Term “is shaping up to be a bad one for plaintiff lawyers.”

Yesterday, Senator Patrick Leahy (D., Vt.), the Senate Judiciary Committee Chairman, introduced legislation that would allow retired Justices to sit by designation on the when active members are recused. Under the proposed bill, a majority of active Justices could vote to assign a retired Justice to fill in for a recused Justice in a particular case.  WSJ Law Blog’s Jess Bravin and NPR’s David Gura have coverage. The recusal issue has drawn significant attention recently in light of Justice Kagan’s decision to recuse herself from twenty-five cases so far this Term, as Nina Totenberg discussed with NPR’s Morning Edition yesterday. 

On Tuesday, the Senate passed the proposed Animal Crush Video Prohibition Act of 2010 – a response to the Supreme Court’s decision last term in United States  v. Stevens, the animal cruelty First Amendment case. The Act criminalizes “the creation, sale, distribution, advertising, marketing, and exchange of animal crush videos” and is intended to respond to the Court’s suggestion in Stevens that a narrower statute limited to animal crush videos might be constitutional.  The BLT’s Marcia Coyle, the WSJ Law Blog’s Ashby Jones, and RTT News have coverage.

Finally, the blogosphere has taken notice of the cert. petition filed recently by Microsoft (which Conor McEvily posted yesterday as one of the petitions of the day). Microsoft’s petition, which is supported by amicus briefs on behalf of industry giants like Google, Apple, Facebook, and Yahoo, asks the Court to decide whether the Patent Act’s invalidity defense must be proved by clear and convincing evidence. Bloomberg, the Seattle PI blog,’s Corporate Counsel blog, and the Electronic Frontier Foundation all have coverage.


  • The Chicago Tribune reports that Justice Alito will give the Opperman Lecture in Constitutional Law today at Drake University.
  • The Associated Press (via Google) provides some background on Snyder v. Phelps, the funeral protest case that the Court is scheduled to hear next Wednesday.