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Tuesday round-up

The Court began its March sitting yesterday, leading to plenty of coverage today.

Yesterday the Court granted certiorari in two cases, Maples v. Thomas and Rehberg v. Paulk; JURIST provides a quick summary of each. In Maples, the Court will consider whether a death-row inmate may pursue an appeal even though he missed a filing deadline. Adam Liptak covers the background of the case at length in the New York Times, as do CNN and the WSJ Law Blog. In Rehberg v. Paulk, the Court will consider whether prosecutors are entitled to immunity if they have presented perjured testimony to a grand jury; Courthouse News Service and the Associated Press report.

Several denials of certiorari also resulted in significant coverage:

  • Almost every major news outlet – including the New York Times, Wall Street Journal (via Associated Press), and CNNMoney – reported on the denial of certiorari in Clearing House Association LLC v. Bloomberg LP. The Court rejected a bid by major banks to block the release of Federal Reserve emergency lending data from the 2008 financial crisis. One of the parties to the case, Bloomberg, has video commentary on the case. AFP and JURIST have coverage, and Daniel Indiviglio of the Atlantic examines the effect that the Court’s decision may have on the financial market and emergency lending.
  • The Court also denied certiorari in Cao v. Federal Election Commission, a challenge to federal restrictions on how much a political party may spend in direct coordination with a candidate. Rick Hasen of the Election Law Blog expresses surprise at the denial; he wonders whether Justice Alito and the Chief Justice Roberts may be “a bit gun-shy about wading back into the McCain-Feingold waters” or if something else is instead at work. The Washington Post, NPR, Politico, the National Journal, and the Hill’s Ballot Box blog all offer detailed coverage.
  • Courthouse News Service and CBS News report that the Court denied certiorari in a dispute between Eminem’s production companies and his record label over the downloads of the rapper’s songs and ringtones.
  • The Court also declined to review whether an environmental inspection of private property can be viewed as an unconstitutional search and seizure in Huber v. New Jersey Dept. of Environmental Protection. As Lawrence Hurley of Greenwire reports, Justice Alito took the “unusual but not unprecedented” step of issuing a statement respecting the denial of certiorari, in which he expressed concern over the lower court’s ruling; the statement was joined by Chief Justice Roberts and Justices Scalia and Thomas. At the Volokh Conspiracy, Eugene Volokh reproduces excerpts from the statement. He suggests that although the four Justices did not vote to grant certiorari because the petition challenged the decision of a state intermediate appellate court, they may nonetheless have wanted to “signal to lawyers that this is an issue worth litigating.”

Commentators also focused on the Court’s unanimous per curiam decision in Felkner v. Jackson, in which the Court summarily reversed a Ninth Circuit ruling awarding habeas relief to an inmate who alleged that a prosecutor acted unconstitutionally in striking jurors at his trial on the basis of race. Courthouse News Service, UPI, and the San Francisco Chronicle offer more coverage; Rory Little gives both an overview and commentary in an ABA Supreme Court case summary (PDF). David Savage of the Los Angeles Times observes that this is the tenth time the Court has struck down a Ninth Circuit ruling since November, and noted an “unusual tone of irritation.” The ABA Journal characterizes the decision as a “slap” for the Ninth Circuit, while Ashby Jones of the WSJ Law Blog musters an “ouch” in response to the Court’s determination that the Ninth Circuit’s decision was “as inexplicable as it is unexplained.”

Finally, yesterday’s oral arguments in Davis v. United States and Tolentino v. New York also generated coverage. Tony Mauro of the National Law Journal reports on yesterday’s oral argument in Tolentino by Caitlin Halligan, who has been nominated to fill an open seat on the D.C. Circuit, while Lyle Denniston of this blog explores the complex arguments advanced by Orin Kerr in Davis. Today, the Court is scheduled to hear oral argument in two cases. Amy Howe of this blog previews Fox v. Vice, in which the Court will consider when prevailing defendants are entitled to attorneys’ fees in civil rights litigation, while the University of Virginia Cavalier Daily previews Borough of Duryea v. Guarnieri, in which the Court will consider whether public employees are protected from retaliation under the First Amendment’s Petition Clause when they complain to the government about matters of purely personal concern.


  • Eugene Volokh discusses the Supreme Court and formal advisory opinions at the Volokh Conspiracy.
  • The First Amendment Center looks at the impact of Garcetti v. Ceballos in a recent case.

Recommended Citation: Nabiha Syed, Tuesday round-up, SCOTUSblog (Mar. 22, 2011, 9:49 AM),