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Wednesday round-up

Yesterday the Supreme Court issued its decision in Virginia Office for Protection and Advocacy v. Stewart and heard oral argument in American Electric Power Co. Inc. v. Connecticut. The latter grabbed many more headlines than the former, and even just a sampling of those headlines illustrates the general agreement by reporters that the six states seeking limits on greenhouse gas emissions faced an uphill battle at the Court:

  • Justices Skeptical of States’ Global Warming Lawsuit (USA Today)
  • Supreme Court Indicates It Will Dismiss 6-State Global Warming Lawsuit (Los Angeles Times)
  • Supreme Court Wary of Empowering Judges To Order Greenhouse Gas Cuts (Christian Science Monitor)
  • Justices Skeptical in Emissions Case (Wall Street Journal)
  • States’ Emissions ‘Nuisance’ Argument Seems To Fall on Deaf Ears in Supreme Court (Greenwire (via the New York Times))
  • U.S. Supreme Court Signals Rejection of State Climate-Emissions Lawsuits (Bloomberg)
  • Court Casts Doubt on States’ Global Warming Suit (Associated Press (via the Wall Street Journal))

Indeed, according to reporters, the states’ argument received a “chilly reception” (NPR), “ran into a buzz saw” (NBC News), and garnered “seemingly unanimous skepticism” (New York Times) at the Court yesterday. Adam Liptak reports for the New York Times that “[n]o one questioned the basic premise of the suit — that greenhouse gas emissions contribute to global warming. But there was essentially no support for the states’ position that courts are the proper forums in which to regulate the problem.” Lyle Denniston, writing for SCOTUSblog, agrees that “this particular lawsuit seemed doomed,” but he adds that “the Court’s biggest task [is] figuring out how to say so without shutting the courthouse door entirely to such claims.” During the expanded “80-minute argument, the court showed little inclination to focus on the standing question,” according to Lawrence Hurley of Greenwire (via the New York Times); “[i]nstead, the justices were keen to reach the merits over whether the Clean Air Act and EPA rulemaking had displaced the federal common law.” The Washington Post’s Bob Barnes similarly observed that, “[a]lthough the issue before the justices was whether the case could go to trial before a district judge, they continually strayed into questions about how a federal judge could go about deciding such a case.” The WSJ Law Blog, ABC News, Fox News, Reuters (via the Los Angeles Times), the Volokh Conspiracy, JURIST, and Legal Planet (also here) have additional coverage of the argument.

Yesterday, in Virginia Office for Protection and Advocacy v. Stewart, the Court held that a federal court can hear a lawsuit for prospective relief against state officials brought by an independent agency of the same state. “While the majority maintained that the suit was a novelty, the dissent likened the case to cannibalism or patricide,” writes Barbara Leonard for Courthouse News Service. At the Atlantic, Andrew Cohen describes the footnote in Justice Scalia’s majority opinion that responds to those analogies as “[a]n instant classic.” At Bench Memos, Ed Whelan notes the decision’s “very unusual alignment: Justice Scalia wrote the majority opinion, which was joined by Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor. The Chief Justice wrote the dissent, joined by Justice Alito.” (Justice Kagan was recused.) Because of that voting pattern, Kent Scheidegger of Crime & Consequences observes, Justice Kennedy’s concurrence (joined by Justice Thomas) “should have a bit more clout than most concurrences, as Justices Kennedy and Thomas are necessary votes for the majority. Had they joined the dissent, it would have been a 4-4 affirmance by an equally divided court.” The Richmond Times-Dispatch, ABA Journal, UPI, the Associated Press (via the Washington Post), and JURIST all have coverage of the decision.

Monday’s argument in the patent infringement suit Microsoft v. i4i Limited Partnership is still in the news as well. (See yesterday’s round-up for prior coverage.) While Computerworld reports that Microsoft’s attorney is “downplay[ing] the impact on patent law if the jurists rule for the company,” Jesse Emspak of the International Business Times reports that the case “could have ripple effects throughout the technology industry.” In addition, Jess Bravin of the Wall Street Journal and Ronald Mann, writing for SCOTUSblog, offer their recaps of the argument.


  • Wired highlights a new cert. petition, in which the “Obama administration is urging the Supreme Court to allow the government, without a court warrant, to affix GPS devices on suspects’ vehicles to track their every move. . . . The petition, if accepted by the justices, arguably would make it the biggest Fourth Amendment case in a decade — one weighing the collision of privacy, technology and the Constitution.”
  • In an essay for Slate, Dahlia Lithwick writes that “[o]pponents and supporters of abortion appear to have taken the position that Roe v. Wade is no longer the law of the land.”
  • In a one-hour installment at, Professor Ann Althouse and Slate’s Dahlia Lithwick discuss, among other things, diversity on the Court.
  • Reuters (via the Los Angeles Times) reports that U.S. Capitol Police evacuated several streets around the Court yesterday and called in a bomb squad to inspect a suspicious abandoned baby carriage near the Court. They found no threat.
  • And finally, the Princeton Packet tells the story of sixth-grader Charlie Doran and his friendship with retired Justice Sandra Day O’Connor.

Recommended Citation: Adam Chandler, Wednesday round-up, SCOTUSblog (Apr. 20, 2011, 8:25 AM),