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Wednesday round-up

Yesterday the Court issued two decisions and released the order list from its May 26 Conference, granting one additional case for next Term. This round-up will present news and analysis of those developments in that order.


The banner headline emanating from the Court yesterday was its decision in the qualified immunity case Ashcroft v. al-Kidd. [Disclosure:  Goldstein, Howe & Russell filed an amicus brief in support of the respondent in the case.]  The Court held unanimously that Abdullah al-Kidd, a U.S. citizen who was arrested as he prepared to board a flight for Saudi Arabia and was detained for sixteen days, may not sue former Attorney General John Ashcroft for alleged misuse of the federal material witness law. (Justice Kagan was recused.) But as Adam Liptak writes in the New York Times, the Court “was unanimous on a single, narrow point” – that the alleged misuse did not violate clearly established law – with the unanimity “mask[ing] deep divisions” evident in three concurrences. Bob Barnes, in the Washington Post, and Joan Biskupic, in the USA Today, echo that reading of the case.  Nina Totenberg recounts the facts of the case in some detail at NPR. The Los Angeles Times, Politico, SCOTUSblog, the Christian Science Monitor, the National Law Journal, the Wall Street Journal (and the WSJ Law Blog), CNN, ABA Journal, Courthouse News Service, Constitutional Law Prof Blog, the Boston Globe, McClatchy Newspapers, the Washington Times, and JURIST all have additional news coverage of the al-Kidd decision.

On the opinion side, the Washington Post editorial board agrees that the immunity component of the ruling is “the right decision,” but it adds that “the government would be wrong to read it as a go-ahead to use material-witness law as a pretext for preventive detention.” The New York Times editorial board largely agrees as well, arguing that “judges must hold the government to much stricter use of the statute.” At Concurring Opinions, Josh Blackman draws a “common thread” between al-Kidd, Brown v. Plata, and McDonald v. City of Chicago: namely, “the Court’s recognition that liberty yields both positive and negative social costs. . . . In some cases, the Court errs on the side of liberty. In other cases, the Court errs on the side of safety.” And at Crime & Consequences, Kent Scheidegger uses al-Kidd as a springboard to discuss the Ninth Circuit’s rate of reversal in criminal cases.

The Court also decided a patent infringement suit yesterday, Global-Tech Appliances, Inc. v. SEB. By a vote of eight to one, the Court held (1) that induced infringement (under 35 U.S.C. § 271(b)) requires knowledge that the induced acts constitute patent infringement and (2) that “deliberate indifference” to a known risk that a patent exists does not satisfy that knowledge requirement. As Greg Stohr and Susan Decker explain for Bloomberg, the decision “set[s] a high bar for claims that one company induced another to infringe a patent” – “the patentholder must prove the defendant knew about the infringement or at least was ‘willfully blind’ to it.” The Court’s rejection of the Federal Circuit’s “deliberate indifference” standard for the more stringent “willful blindness” standard “may have profound implications well beyond the area of intellectual property law,” writes Jason Rantanen at PatentlyO. The Associated Press (via the Washington Post), UPI, Courthouse News Service, the Legal Pulse, and JURIST have further coverage of the decision.


The Court granted certiorari in one case yesterday, Perry v. New Hampshire, in which the Court will “review the admissibility of a witness identification in a case where the suspect was already in handcuffs” (Courthouse News Service). The Associated Press (via the Washington Post) and JURIST report on the cert. grant, while at Crime & Consequences, Kent Scheidegger questions whether the issue in the case should “be federal constitutional law at all.”

Overshadowing the Perry grant, however, was one unusually high-profile cert. denial. The Court refused to hear a follow-up to its decision last year in the “honest services” fraud case Black v. United States. Media mogul Conrad Black had prevailed in that case, but the Court’s denial of certiorari yesterday may send him back to prison. Greg Stohr reports from Bloomberg that “[t]he rebuff leaves Black facing the prospect that he will receive little if any benefit from last year’s ruling.” For additional reports on the denial, see CNN, Courthouse News Service, the WSJ Law Blog, Reuters (via the Los Angeles Times), the Associated Press (via Fox News), and ABA Journal.

Conrad Black’s was not the only newsworthy cert. denial yesterday. Greenwire (via the New York Times), Bloomberg, and Courthouse News Service all report on the Court’s decision not to hear a challenge to the EPA’s ban on the pesticide carbofuran (National Corn Growers v. EPA, No. 10-1031). Also, the Court denied rehearing and lifted its stay of execution in the case of Texas inmate Cleve Foster, “who has twice this year come within hours of receiving a lethal injection” (the New York Times). Texas is now free to set another execution date. The Associated Press (via the Washington Post), the Fort Worth Star-Telegram, UPI, and Crime & Consequences all have more information on the Foster case.

The Court also invited the Acting Solicitor General to file briefs expressing the views of the United States in two cases in which cert. petitions are pending, Ryan v. Gonzales and Farina v. Nokia. At the Volokh Conspiracy, Jonathan Adler notes the CVSG in Ryan v. Gonzales, a habeas case out of the Ninth Circuit; at issue in the case is whether a habeas petitioner is entitled to a stay of the proceedings if the petitioner is not competent to assist counsel. At Crime & Consequences, Kent Scheidegger explains why Ryan v. Gonzales has implications for Donald Verrilli’s nomination to be Solicitor General. Farina v. Nokia is a preemption case about cellphone radiation; Law360 and ABA Journal both discuss the case.


  • The Associated Press (via the Wall Street Journal) reports that Justice Alito owned approximately two thousand dollars’ worth of stock in Walt Disney Co. when he participated in the 2009 case FCC v. Fox Television Stations, to which ABC Inc. (which is owned by Disney) was a party. Justice Alito – who voted against ABC’s interests in the case – acknowledged that “his participation was an oversight.” (Bloomberg also has coverage.)
  • The Associated Press (via the New York Times) also reports that Justice Breyer broke his collarbone in a bicycle accident in Cambridge, Massachusetts over the weekend.
  • Continuing to assess with the implications of last week’s decision in Brown v. Plata, the Los Angeles Times editorial board suggests that California could reduce costs and overcrowding in its prisons by releasing aged and infirm inmates.
  • Finally, at Sentencing Law and Policy, Doug Berman discusses the state of the sentencing docket at the Court.  In a separate post, he reports that yesterday the First Circuit issued an opinion that “creates a crisp circuit split”; in light of the split, he notes, he “would not be too surprised” if the government were to file a cert. petition seeking review of the First Circuit’s decision.

Recommended Citation: Adam Chandler, Wednesday round-up, SCOTUSblog (Jun. 1, 2011, 8:48 AM),