Breaking News

Thursday round-up

On Wednesday, the Court issued its decisions in Snyder v. Phelps and Pepper v. United States and heard oral argument in Bullcoming v. New Mexico and Ashcroft v. al-Kidd.  This round-up will begin with coverage of the new opinions, and then address the oral arguments.


Snyder v. Phelps

The Court’s opinion in Snyder, a case the Washington Post’s Robert Barnes predicts is “likely to define the Term,” has produced a deluge of coverage and commentary. By a vote of eight to one, the Court held that the First Amendment shields from tort liability individuals who stage a peaceful protest on a matter of public concern near the funeral of a military service member. Chief Justice Roberts wrote the majority opinion, Justice Breyer filed a concurring opinion, and Justice Alito, the lone dissenter, filed a dissenting opinion. The opinions are available here.

SCOTUSblog’s Tom Goldstein calls the decision “a resounding affirmation of the right to engage peacefully in speech, even terribly hurtful speech, on matters of public import,” and the editorial boards of many major newspapers and most commentators seem to support the outcome.  But the sentiment was certainly not shared by all. Mark Sherman of the Associated Press highlights Justice Alito’s dissent — “his second solo dissent in a free-speech case in as many years” — as elevating “privacy over free speech.” Katie Couric of CBS News interviews Albert Snyder, who believes that yesterday was “a sad day for our military men and women, and their families,” and “a sad day for all Americans.” Devin Dwyer of ABC News reports that leaders of the Westboro Baptist Church have “vowed  to ‘quadruple’ the number of protests at military funerals around the country” in light of the Court’s ruling, but Joan Biskupic and Kevin Johnson of USA Today note that “veterans groups and other opponents [are] vowing to step up efforts to block church followers from demonstrating at high-profile funerals and interfering with grieving military families.” The New York Times, the Los Angeles Times, the Washington Post, the Christian Science Monitor, the Baltimore Sun, the Boston Herald, the San Francisco Chronicle, the Kansas City Star, Fox News, the WSJ Law Blog, NPR, Reuters, The BLT, CNN, the Associated Press, Bloomberg, Reuters, TIME, The Atlantic, JURIST, ACSBlog, Concurring Opinions, Cato @ Liberty, ,Constitutional Law Prof Blog, Courthouse News Service, and FIRE, are just some of the media outlets and blogs that have additional coverage of, and commentary on, the decision.

Pepper v. United States

In Pepper, the Court held that at re-sentencing a district court may consider evidence of the defendant’s rehabilitation that occurred after the initial sentencing, and that that evidence may support a downward variance from the sentencing guidelines. Justice Sotomayor wrote for a six-Justice majority, Justice Breyer filed a partial concurrence, Justice Alito filed a partial concurrence and a partial dissent, and Justice Thomas filed a dissent. (Justice Kagan was recused.) The opinions are available here.  Doug Berman of Sentencing Law and Policy blog describes the case as the “biggest federal sentencing case of the term to date,” and in a second post he praises “Justice Sotomayor’s opinion [for] weaving its way through a range of post-Booker issues and various other aspects of modern federal sentencing law and practice. And in a third post, he asks whether Pepper might “prompt many more federal sentencing judges to focus on post-offense rehabilitation” — the Court’s arguments for the consideration of post-sentencing rehabilitation “apply with equal force — and maybe with even greater force — to post-offense rehabilitation.” The Associated Press, Courthouse News Service, JURIST, the ABA Journal, and the Des Moines Register (thanks to How Appealing for the link) have additional coverage of the decision.

Oral Arguments:

Bullcoming v. New Mexico

The question presented by Bullcoming is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a forensic analyst when only the analyst’s supervisor — and not the analyst herself — appears to testify. A transcript of the oral argument is available here. SCOTUSblog’s Lyle Denniston suggests that Justice Scalia, “[t]he Court’s most determined protector of criminal suspects’ rights to confront their accusers,” hopes to encourage the Court to “shore up” the Confrontation Clause after Monday’s decision in Michigan v. Bryant, which, “over Scalia’s strenuous dissent,” bore “a sizable loophole in the right of confrontation.” Christine Dowling of Crime & Consequences also has coverage of the argument.

Ashcroft v. al-Kidd

The question before the Court in al-Kidd is whether former Attorney General John Ashcroft is immune from a suit alleging that he used the material witness statutes as a pretext to investigate and detain terrorism suspects after September 11th. A transcript of the oral argument is available here. Many commentators note the Justices’ seeming lack of interest at oral argument, and most seem to predict that the Court will rule in favor of the government. At the Volokh Conspiracy, Orin Kerr is “pretty certain” that the Court will “reverse on immunity grounds,” while Adam Liptak of the New York Times agrees that the “Justices’ lack of engagement at the argument probably signaled a victory for the government.” At The Atlantic, Mary Fischer has an interview with al-Kidd, who states that his “main goal” in pursuing the case “is vindication.” “[He] want[s] the government to apologize and acknowledge their mistakes and right the wrongs so [what happened to him] won’t happen to other people.” The Wall Street Journal, the Washington Post, Slate, CNN, SCOTUSblog, the Associated Press, ABC News all have further coverage, as does Dahlia Lithwick of Slate.

JURIST has coverage of both arguments.


  • SCOTUSblog’s Lyle Denniston explores the relationship between the AT&T decision and the Snyder decision, concluding that with these “back-to-back decisions . . . the Supreme Court has now told the nation that some claims to privacy — to avoid hurt or embarrassment — would not be allowed.”
  • The Constitutional Accountability Center’s Neil Weare cautions against reading too much into “the fact that the U.S. Chamber of Commerce has started out its October 2010 Term . . . by going one-for-five. . . . [W]ith at least fifteen cases in which the Chamber has participated still left to be decided,” he argues that “it is way too early to be making pronouncements about what this Term’s early decisions mean for the Chamber’s overall batting average before the Roberts Court.”
  • At Concurring Opinions, Jonathan Hafez argues that the D.C. Circuit has “turned [Boumediene] on its head by restoring executive control over who leaves Guantanamo, and when. Sooner or later,” he predicts, “the Court is bound to take notice.”
  • JURIST’s Aman Kaker discusses an amicus brief filed by the ACLU, the National Women’s Law Center, and thirty-two other organizations in Wal-Mart v. Dukes, the class action alleging that Wal-Mart discriminated against its female employees in violation of Title VII.
  • Richard Friedman of the Confrontation Blog provides some “preliminary observations” about the opinions issued on Monday in Michigan v. Bryant. He considers the decision to be “a very unfortunate development for the Confrontation Clause.” (Thanks to How Appealing for the link.)

Recommended Citation: Amanda Rice, Thursday round-up, SCOTUSblog (Mar. 3, 2011, 9:54 AM),