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Thursday round-up

Wednesday was a busy day at the Court: the Justices heard oral argument in two cases and issued opinions in three others.

In yesterday’s first oral argument, Federal Communications Commission v. AT&T Inc., the Court considered whether a Freedom of Information Act (FOIA) exemption for invasions of “personal privacy” protects the “privacy” of corporate entities.  In the second, Astra USA, Inc. v. Santa Clara County, it considered whether federal courts can confer a private right of action for breach of contract on third-party beneficiaries of a government contract when the statute mandating the contract does not contain a cause of action. Transcripts of both arguments are available here.

Reporters and commentators seemed nearly unanimous in predicting that the Court will rule against AT&T in FCC v. AT&T. The Washington Post’s Robert Barnes suggests that merely describing the Justices as “skeptical that corporations have ‘personal privacy’ rights” “might be an understatement.” At Slate, Dahlia Lithwick parodies the “corporate personhood” argument by telling the “story” of the case and oral argument from the perspective of “AT&T” — “a very emotional guy” who just wants the Court to recognize that “AT&T is people, too.” Warren Richey of the Christian Science Monitor notes that the case “is being closely watched . . . as a potential indicator of a pro-business slant at the high court under Chief Justice John Roberts.” According to the Wall Street Journal’s Jess Bravin, the tenor of the argument “suggested that even the conservative justices who formed the Citizens United majority can be skeptical of claims that corporations are the legal equivalent of flesh-and-blood human beings”; indeed, Mark Sherman of the Associated Press points out that “[t]here was no mention of the Citizens United ruling” during oral argument.  The New York Times, SCOTUSblog, USA Today, the WSJ Law Blog, Bloomberg, JURIST, and CNN all have additional coverage of the argument.

Yesterday’s opinions in NASA v. Nelson, Harrington v. Richter, and Premo v. Moore are available here. Ed Whelan of NRO’s Bench Memos found one common theme in the decisions:  all three rulings were “unanimous reversals of Ninth Circuit rulings (two of which were authored by Judge Reinhardt).”

In NASA v. Nelson, all eight Justices (with Justice Kagan recused) agreed that NASA’s background checks of the employees of government contractors did not violate the Constitution, but Justice Scalia wrote a fiery concurrence (joined by Justice Thomas) in which he criticized the majority for assuming without deciding that there is a constitutional right to “informational privacy.”  Instead, Justices Scalia and Thomas would have simply held that “[a] federal constitutional right to ‘informational privacy’ does not exist.” As Barbara Leonard comments for Courthouse News Service, “Scalia did not hold back in the sardonic 10-page opinion,” while NPR’s Nina Totenberg calls the concurrence “[c]lassic Scalia, . . . full of vivid language, acid sarcasm and biting humor aimed both at his colleagues and at the arguments put forth by the [plaintiffs].” The Washington Post, the New York Times, the Los Angeles Times (also here), the Wall Street Journal, the San Francisco Chronicle, the Associated Press, the Christian Science Monitor, USA Today, ABC News, Reuters, the ABA Journalthe Washington Times, SCOTUSblog, the Volokh Conspiracy (also here and here), Court Beat, Dorf on Law, First One @ One First, Althouse, JURIST, Concurring Opinions, and Wired have additional coverage of the decision.

The other cases decided on Wednesday – Harrington v. Richter and Premo v. Moore, both habeas cases based on claims of ineffective assistance of counsel – also garnered attention. Doug Berman of Sentencing Law and Policy offers the “early conclusion” that the two habeas reversals “reflect a desire by the Justices to give the Ninth Circuit a lesson about habeas review rather than a significant evolution in the jurisprudence of Sixth Amendment ineffectiveness claims.” The Volokh Conspiracy’s John Elwood, Balkinization’s Jason Mazzone, ABA Journal’s Debra Weiss, and the WSJ Law Blog’s Nathan Koppel all point out that the Court is especially critical of the Ninth Circuit in Harrington: Justice Kennedy characterizes Judge Reinhardt’s opinion as exhibiting “judicial disregard for the sound and established principles that inform [the] proper issuance” of the writ.  Although most coverage of the two cases focused on the Court’s treatment of the Ninth Circuit, Kent Scheidegger of Crime & Consequences looks at the broader picture, describing Harrington as “a landmark decision in the law of federal habeas corpus.” He praises the Court’s characterization “of the most controversial provision of . . . the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): 28 U.S.C. §2254(d).” JURIST has additional coverage of the both decisions and the Associated Press (via the Los Angeles Times) discusses Premo here and Harrington here.

Finally, Tuesday’s grant of certiorari in the consolidated cases Maxwell-Jolly v. Independent Living Center of Southern California, Maxwell-Jolly v. Santa Rosa Memorial Hospital,  and Maxwell-Jolly v. California Pharmacists Association (which Lyle has previously discussed here) has captured the attention of the California press. Bob Egelko of the San Francisco Chronicle reports that the “case will affect Gov. Jerry Brown’s ability to reduce spending for social services” via California’s Medicaid program “Medi-Cal,” which “provides care to 6.6 low-income Californians.” According to David Savage and Shane Goldmacher of the Los Angeles Times, not only will the case “have a major impact on Gov. Jerry Brown’s plans to close the state’s massive budget deficit,” but also it will affect other states — twenty-two of which joined California’s appeal — that “have indicated an interest in making similar cutbacks.” California Healthline also has coverage of the cert. grant.


  • Steven Schwinn of Constitutional Law Prof Blog discusses Tuesday’s argument in The Boeing Company v. United States, predicting that the Court’s “ruling is likely to be quite narrow.”
  • At Courthouse News Service, Barbara Leonard discusses Tuesday’s denial of certiorari in a challenge to a D.C. law recognizing same-sex marriage.
  • Jessica Gresko of the Associated Press (via the Washington Post) reports that, although the Court “now has three women on its nine-member bench[,] . . . the justices are still more than five times more likely to hear an argument from a male attorney than from a woman.”

Recommended Citation: Amanda Rice, Thursday round-up, SCOTUSblog (Jan. 20, 2011, 9:34 AM),