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:
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.
Briefly:
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