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Updated: Monday round-up

UPDATE:  In the wake of the Court’s orders denying certiorari, Greg Stohr of Bloomberg has articles on three cases: Stewart & Jasper Orchards v. Salazar (the Endangered Species Act), Barr Laboratories v. Cancer Research Technology (patent coverage of generic drugs), and Stryker v. Bausch (patient lawsuits against medical-device makers).

The Court begins its November sitting today.  Reporting and commentary over the weekend focused primarily on today’s arguments in Lafler v. Cooper and Missouri v. Frye, in which the Court will consider the relationship between plea bargain offers and constitutionally sufficient assistance of counsel.  The Brennan Center, Adam Liptak of the New York Times, and Nina Totenberg of NPR preview the cases, as do Anthony Franze and Jeremy McLaughlin for this blog.  The editorial board of the New York Times also weighed in on Frye over the weekend, arguing that “[t]he Constitution’s guarantee of effective counsel . . . means little if it does not include a right to know about plea offers.”

The Court will also hear oral argument this week in Perry v. New Hampshire, involving the question of due process protections against the introduction at trial of eyewitness testimony obtained under suggestive circumstances.  Lyle’s preview of the case for this blog can be found here.  This focus on eyewitness identifications will then continue next week, at oral argument in Smith v. Cain, in which the Court will consider whether the defendant suffered only a harmless violation of his rights when prosecutors withheld information casting doubt on an eyewitness identification.  Robert Barnes of the Washington Post provides coverage. [Disclosure: The author of this post assisted with research for the merits brief on behalf of the petitioner in Perry.]

Michael Doyle of McClatchy Newspapers previews tomorrow’s oral argument in Minneci v. Pollard, in which the Court will consider whether federal inmates may sue employees of a private prison company for violations of the Constitution.  And in the Los Angeles Times, David Savage previews next week’s argument in National Meat Association v. Harris, in which the Court will consider the preemptive effect of the Federal Meat Inspection Act.  Finally, Mike Dennison of the Missoulian previews the arguments in PPL Montana, LLC v. Montana, in which the Court will consider how to determine whether a river is “navigable.”


  • On Sunday, the editorial board of the New York Times discussed the Court and the 2012 presidential election, arguing that “whoever is elected president could shape the court for the next generation.”
  • At ACSblog, Jamie Raskin responds to Joe Nocera’s recent discussion of Robert Bork’s Supreme Court nomination in the New York Times.
  • At Jost on Justice, Kenneth Jost looks at Justice Thomas’s twenty years on the Court and argues that the Justice has called for the Court’s precedents to be overturned “[m]ore than any justice in recent memory — perhaps more than any justice in history.”
  • In the Washington Monthly, Michael O’Donnell reviews Five Chiefs, the recently released memoir of retired Justice John Paul Stevens.
  • At UPI, Michael Kirkland reports on the cert. petition filed recently in Catholic Answers, Inc. v. United States, a case that presents questions about the relationship between religious speech and political speech for purposes of tax exemptions.
  • At Verdict, David Kemp discusses the cert. petition in Kowalski v. Berkeley County Schools, in which a student suspended by the school district for remarks that she made about another student on the Internet from her home computer has asked the Court to review her case.
  • Also at Verdict, Vikram Amar analyzes the possible procedural defects in Fisher v. University of Texas, an affirmative action case currently before the Court on a petition for certiorari that SCOTUSblog discussed in its Community section and that Stephen Wermiel analyzed several weeks ago.


Recommended Citation: Joshua Matz, Updated: Monday round-up, SCOTUSblog (Oct. 31, 2011, 10:00 AM),