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Tuesday round-up

Yesterday the Court issued two opinions: in Brown v. Plata, it affirmed a decision by a three-judge district court panel ordering California officials to release state prisoners ; and in General Dynamics Corp. v. United States it vacated a Federal Circuit decision and held that when, to protect state secrets, a court dismisses a contractor’s prima facie valid affirmative defense to the government’s allegations of breach of contract, a proper remedy is to leave the parties where they were on the day they filed suit.

The decision in Plata dominated the news coverage and commentary.  In yesterday’s evening round-up, Kali collected many of the early news stories on the decision.  Additional coverage comes from Michael Doyle of McClatchy Newspapers (via the Miami Herald), Daniel Wood of the Christian Science Monitor, Debra Cassens Weiss of the ABA Journal, JURIST, and Courthouse News Service.  In the New York Times, Jennifer Medina reports that the Plata decision is “sure to set off a fresh round of budget battling in the financially distressed state [of California],” while the editorial board of the New York Times urges the state to use its “limited prison space . . . for people who truly pose a threat to society,” rather than those convicted of “technical parole violations” or “minor, nonviolent crimes.”

Discussion of the case continued in the blogosphere as well.  Writing for ACSblog, Giovanna Shay argues that although the Plata remedy was necessary, “the type of over-crowding described . . . requires, not just conditions litigation, but a criminal punishment overhaul.  Simply put, California needs to lock up fewer people, as does our nation.”  In another ACSblog post, Inimai Chettier takes issue with the dissenters’ “alarmist language” and argues that “[i]mproving prison conditions makes us all safer.”  At Cato @ Liberty, Tim Lynch describes California prison conditions in some detail and concludes that the opinion “make[s] a persuasive case that California’s elected officials have had ample opportunity to address the systemic problems, but have let them fester year after year”;  Ben Kerschberg of Forbes similarly contends that the state “has failed at a systemic level.”

The majority’s use of three photographs to illustrate prison conditions was the focus of additional commentary.  At Balkinization, Jason Mazzone suggests that although the Court included the photographs so that “readers will see for themselves what the conditions within the prisons are like – and thereby understand better the reason for the Court’s endorsement of the extraordinary remedy of a mass release,” the use of the photos might not always have the intended effect:  “Some people who look at the two photographs will see not crowded prisons demanding a judicial remedy but scary criminals who are going to be released into the community before they have served their sentences.”   At his Sentencing Law and Policy blog, Doug Berman considers whether the Court should use visual aids; in another post, he comments on the abundance of rhetoric in all of the Plata opinions.

Yesterday’s decision in General Dynamics garnered comparatively less coverage.  Writing for the New York Times, Adam Liptak both summarizes the decision and links it to last week’s denial of certiorari in Mohamed v. Jeppesen Dataplan, Inc.; he also interviews an expert on “state secrets” who suggests that the two cases collectively “amount[] to ‘an unmistakable and loud signal that all nine of the justices are not about to change the rules of the game in cases in which the government claims that military, intelligence or diplomatic secrets may be revealed.’”  At the Constitutional Law Prof Blog, Steven D. Schwinn echoes this sentiment:  he notes that although the Court’s holding is narrow, the decision may nonetheless “shed some light on the Court’s view of the [state-secrets] privilege outside the narrow facts of this case.”  Additional coverage of the General Dynamics decision is also available at the Wall Street Journal, Fox News, ABA Journal, and JURIST.

Finally, yesterday’s order list also prompted several stories.  In the ABA Journal, Debra Cassens Weiss covers the  grant in Kawashima v. Holder, in which the Court will decide whether a false statement on a corporate tax return is an aggravated felony involving fraud or deceit, which would justify the deportation of a Japanese couple. Courthouse News Service and JURIST also provide coverage.  And several sources reported on the Court’s denial of cert. in Khadr v. Obama, a detainee case, including Lyle Denniston of this blog, Postmedia News (via the Vancouver Sun), Parliamentary Bureau (via the Toronto Sun), and Courthouse News Service.


  • The editorial board of the Los Angeles Times criticizes the Court’s recent decision in Kentucky v. King.
  • At The Conglomerate, Gordon Smith responds to the Chief Justice’s recent criticism of legal scholarship.

Recommended Citation: Conor McEvily, Tuesday round-up, SCOTUSblog (May. 24, 2011, 9:34 AM),