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Wednesday round-up

Activity at the Court remains high in the second week of the February sitting. Yesterday the Court issued three unanimous decisions and heard oral argument in three cases (two of which are consolidated). This post will round up coverage of yesterday’s decisions first and then focus on coverage of oral arguments.

Three unanimous decisions

Yesterday the Court issued decisions in three cases, FCC v. AT&T, Staub v. Proctor Hospital, and Henderson v. Shinseki. FCC v. AT&T has drawn somewhat more notice than the others, but major media outlets have reports on all three decisions.

In FCC v. AT&T, the Court held that corporations do not have a right of “personal privacy” for purposes of Exemption 7(C) of the Freedom of Information Act. That exemption covers law enforcement records whose disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Chief Justice’s unanimous opinion (with Justice Kagan recused) relies heavily on “dictionaries, grammar and usage,” reports Adam Liptak of the New York Times; moreover, Rick Hasen of Election Law Blog observes, it makes “no mention of legislative history.” The opinion is variously described as “lively” (the New York Times), “teacher-like” (SCOTUSblog), “jolly” (Slate), “lacerating” (WSJ Law Blog), “humorous” (the National Law Journal), and “taut” (the Washington Post). Slate’s Dahlia Lithwick has a detailed discussion of the opinion, which she describes as concluding with “what may be the funniest closing sentences in opinion-writing history: ‘The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.’” USA Today, Politico, Wired, AOL Politics Daily, the Wall Street Journal, NPR, the Los Angeles Times, the Associated Press (via the Washington Post), Bloomberg, the PBS NewsHour, the Christian Science Monitor, LAWnLinguistics, Language Log, Courthouse News Service, and JURIST all have coverage of the opinion, as well.

In another unanimous judgment (again with Justice Kagan recused), the Court held in Staub v. Proctor Hospital that an employer may be blamed for workplace discrimination even when the person who fires or demotes a worker (or refuses promotion) does not act out of bias, if the bias of another person in the command chain worked its way into the decision. (Justice Scalia’s decision upholds the so-called “cat’s paw” theory of workplace discrimination liability, an appellation he attributes to a seventeenth-century fable by way of Richard Posner.) Though the case arose under a more narrow federal law prohibiting employment discrimination based on military status (the Uniformed Services Employment and Reemployment Rights Act), NPR’s Nina Totenberg reports that the Court’s reasoning “likely applies to discrimination claims based on race, gender and religion as well, since the law at issue in this case mirrors the language in other employment discrimination statutes.”  Coverage of Staub is available from the Christian Science Monitor, the National Law Journal, SCOTUSblog, the New York Times, Courthouse News Service, the Los Angeles Times, Business Insurance, Bloomberg, and JURIST.

In a separate case involving military personnel, the Court unanimously held (again without Justice Kagan participating) that the 120-day deadline for filing a notice of appeal with the Veterans Court does not have jurisdictional consequences. The New York Times, USA Today. SCOTUSblog, Courthouse News Service, NPR, JURIST, and the Associated Press (via the Washington Post) all have coverage of the decision.

Oral arguments

The Court heard two oral arguments yesterday – in Camreta v. Greene and Alford v. Greene (consolidated), as well as Schindler Elevator Corp. v. US ex rel. Kirk – and coverage focuses on the former. The Court granted certiorari in the Greene cases to consider the precautions that must be taken when questioning children at school about domestic abuse. But as the National Law Journal’s Tony Mauro reports, the argument “quickly turned into a ‘where’s the beef’ discussion of whether a controversy remains between the parties in the case.” As a result, Mauro continues, “it seemed possible that the Fourth Amendment issue might not get resolved because of the procedural posture of the case.” Slate’s Dahlia Lithwick draws a similar conclusion from the argument: “The court seems to agree—almost, dare I say it, unanimously—that it can make this case go away somehow, and leave the really hard questions about the correct constitutional scope for interrogating children in schools for another day.” Mark Walsh at Education Week’s School Law blog, CNN’s Bill Mears, FOX News, and the Associated Press (via the Washington Post) mostly concur with Mauro and Lithwick’s assessments. Still, on the merits, the Los Angeles Times’s David Savage reports that the Justices “took sharp exception . . . to the notion that a search warrant or a parent’s consent was required before a child could be questioned at school by a child-care worker or a police officer.” JURIST offers brief recaps of both of yesterday’s arguments.

Reporting on oral arguments at the Court more generally, two newspaper stories discuss increased “talkativeness” during arguments this Term. In the Washington Post, Bob Barnes reports that “[t]he Supreme Court is talking more and listening less, with new arrivals Justices Sonia Sotomayor and Elena Kagan proving to be aggressive additions to what was already an assertive court.” The Post calculates that argument transcripts this Term are eleven percent longer than last Term’s. (Howard Wasserman at PrawfsBlawg takes note of Barnes’s report.) As Joan Biskupic explains in USA Today, “Sotomayor is far more talkative than was David Souter, the justice she succeeded. . . . Kagan jumps in more regularly, too, than the man who preceded her, John Paul Stevens.” More broadly, Justice Sotomayor and Justice Kagan are “offering a glimpse of how they could reshape the court’s liberal wing,” Biskupic writes.

Finally, at SCOTUSblog, Lyle Denniston previews this morning’s arguments in Bullcoming v. New Mexico (preview here), a Confrontation Clause case, and Ashcroft v. al-Kidd (preview here), a closely watched case involving the government’s ability to use the material witness statute to detain individuals for whom it lacks probable cause to arrest. NPR and FOX News also have previews of the al-Kidd argument, and KOB-TV (New Mexico) previews Bullcoming, as well.


  • In the National Law Journal, Tony Mauro reports that high-tech and automotive companies and retailers lobbied the Obama Administration to refrain from participating in Global-Tech Appliances v. SEB S.A., an infringement case that was argued last week. The Solicitor General did not file a brief in the case and did not participate in the argument.
  • David Ingram of the Blog of LegalTimes reports that two Democratic congressmen “announced legislation [yesterday] that would shake up the ways that U.S. Supreme Court justices handle ethical questions.”
  • At SCOTUSblog, John Elwood tracks the relisted cases from Monday’s order list.
  • On her Court Beat blog, Joan Biskupic reviews Monday’s decision, and in particular Justice Scalia’s dissent, in the Confrontation Clause case Michigan v. Bryant. She describes Justice Scalia as having “lost it” “because this is one area where Scalia had made progress over the past decade with his originalist approach, to narrow the grounds for exceptions to the confrontation guarantee.”
  • At ACSblog, Sarah Crawford of the National Partnership for Women & Families and Emily Martin of the National Women’s Law Center discuss two amicus briefs on behalf of women’s organizations that were filed yesterday in the class-action case Wal-Mart v. Dukes, to be argued later this month.
  • Also at ACSblog, Frank LoMonte of the Student Press Law Center discusses Nevada Commission on Ethics v. Carrigan, which is scheduled for argument in April. LoMonte argues that the case “portends grave risk for the constitutionality of every open-government and ethics law in the nation.”

Recommended Citation: Adam Chandler, Wednesday round-up, SCOTUSblog (Mar. 2, 2011, 9:12 AM),