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Tuesday round-up

With four opinions and four grants, yesterday was a busy day at the Court – leading to myriad news stories and a flurry of commentary.

Yesterday’s biggest opinion was one of the biggest of the Term:  Wal-Mart v. Dukes, in which the Court reversed a Ninth Circuit decision that certified a class of over one million female employees alleging gender discrimination by Wal-Mart. By a vote of five to four, the Court held that the case could not proceed as a single class action because the plaintiffs could not show that Wal-Mart had a common policy of discrimination against women; the Court also unanimously agreed that the women could not bring a claim for back pay under Rule 23(b)(2).  Lyle Denniston of this blog interprets the decision as sending a message that “the bigger the company, the more varied and decentralized its job practices, the less likely it will have to face a class-action claim”; Slate, the Los Angeles Times, USA Today, Reuters, Washington Post, San Francisco Chronicle, Christian Science Monitor, Huffington Post, New York Times, and Nina Totenberg of NPR (audio) all have coverage of the decision, while the WSJ Market Beat reports that Wal-Mart’s shares were up one percent after the decision.

Bloggers immediately began to analyze the decision as well.  At PrawfsBlawg, Sergio Campos parses the Court’s interpretation of the commonality requirement,   while at Balkinization, Joey Fishkin suggests that “Dukes raises the disquieting possibility that rather than inviting litigation, subjective and standardless policies might—for a large enough employer—have the perverse effect of insulating the employer from large-scale litigation by helping to defeat class certification.”  At Cato@Liberty, Walter Olson predicts that the “elected branches will have the last word”; relatedly, the Washington Post’s 2chambers blog reports on some responses from Democratic lawmakers.

Also garnering substantial attention was the opinion in American Electric Power v. Connecticut, in which the Court held that, through the Clean Air Act, Congress has entrusted the Environmental Protection Agency with regulation of carbon dioxide emissions, displacing any federal common-law right to abate such emissions from power plants. Lawrence Hurley and Gabriel Nelson of Greenwire (via New York Times) have coverage, as do David Savage of the Los Angeles Times, JURIST, Politico, Financial Times, Bloomberg, Warren Richey of the Christian Science Monitor, and Lyle Denniston of this blog.

The editorial board of the Wall Street Journal also weighs in on the decision, declaring that “the climate tort is finished,”  Steven D. Schwinn of the Constitutional Law Prof Blog analyzes the ruling, as does Jonathan Adler of the Volokh Conspiracy; Adler notes that although the Court “only reached plaintiffs’ federal common law claims,” its opinion “may give federal courts pause before approving the plaintiffs’ state-law-based claims” as well.

In  Turner v. Rogers, the Court held that the Fourteenth Amendment’s Due Process Clause does not automatically require the state to provide counsel during civil contempt proceedings to an indigent parent who faces the prospect of jail time for failure to pay child support.  The Washington Post and the New York Times have coverage, as do Courthouse News Service, JURIST, and the Boston Globe.

In the blogosphere, Concurring Opinions hosted a “flash symposium” on the decision.  Poster Marty Guggenheim argued that in light of the Court’s opinion, “we now know the Due Process Clause has some teeth,” while Jim Baillie discusses whether the case provides an opportunity for more empirical research on the role of counsel. And at Constitutional Law Prof Blog, Steven Schwinn characterizes the decision as a “narrow” addition to the Court’s civil right-to-counsel jurisprudence and its procedural due process jurisprudence.

Finally, in Borough of Duryea v. Guarnieri, the Court ruled by a vote of eight to one that, unless an employee’s petition relates to a matter of public concern, a government employer’s allegedly retaliatory actions against an employee do not result in liability under the First Amendment’s Petition Clause. Lyle Denniston of this blog explains that, as a result of the ruling, “the scope of Petition Clause cases quite closely match the scope of the First Amendment’s Free Speech Clause.” The Pittsburgh Tribune-Review and Barbara Leonard of Courthouse News Service also have coverage of the case, as does Mark Walsh for Education Week’s School Law blog.And at Constitutional Law Prof Blog, Ruthann Robson discusses the decision; she argues that “whether the opinion is ahistorical or not, the Petition Clause has certainly not been expanded” here.

The Court also granted four new cases on Tuesday, as Kali Borkoski reported for this blog.   JURIST provides a brief overview of each case, while Lyle Denniston of this blog discusses the issues in Mayo Collaborative Services v. Prometheus Laboratories, Inc.


  • The Blog of Legal Times reports on a panel on the Roberts Court and the First Amendment, held last weekend at the American Constitution Society’s annual meeting.
  • Both the WSJ Law Blog and National Review Online Bench Memos respond to a recent New York Times article on Justice Thomas and his relationship with a Dallas real estate developer, Harlan Crow, to which James linked yesterday.
  • The editorial board of the Los Angeles Times applauds the Court’s recent decision in J.D.B. v. North Carolina, arguing that “any other decision would have been unconscionable.”

Recommended Citation: Nabiha Syed, Tuesday round-up, SCOTUSblog (Jun. 21, 2011, 9:58 AM),