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Thursday round-up

Yesterday the Court heard oral arguments in Golan v. Holder and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. [Disclosure: Goldstein & Russell, whose attorneys work for (and contribute to) the blog in various capacities, represents the petitioners in Golan and filed an amicus brief in support of respondent Cheryl Perich in Hosanna-Tabor, but the author of this post is not involved in either case.] Kiera provides links to the transcripts in both of yesterday’s arguments here.

In Golan, the Court is considering whether Congress can restore copyright protection to a work whose copyright protection had previously expired. At this blog, Marty Lederman comments on the oral argument and the case generally, asking whether it isn’t “at least somewhat troubling for Congress to prohibit members of the public from expressing something tomorrow that they were free to express yesterday?”  Meanwhile, Mark Sherman of the Associated Press cites the hypotheticals posed by Chief Justice Roberts and Justice Ginsburg as demonstrating the Court’s “generational divide”. Adam Liptak of the New York Times, Kitty Felde of Southern California Public Radio, James Vicini of Reuters (via the Los Angeles Times), and the AFP also have coverage.

In Hosanna-Tabor, the Court is considering whether and to what extent religious organizations are subject to federal employment discrimination statutes. Jesse Holland of the Associated Press reports that the Court “appeared sharply divided” at argument, while Nina Totenberg of NPR describes the as turning “intellectual somersaults” in grappling with the case. Joan Biskupic of the USA Today, Adam Liptak of the New York Times, Bill Mears of CNN, Warren Richey of the Christian Science Monitor, Lauren Markoe of Religion News Service (via the Washington Post), James Vicini of Reuters, Michael De Groote of Deseret News, Mike Sacks of the Huffington Post, and Lyle Denniston of SCOTUSblog also have coverage.

Yesterday afternoon, Justices Scalia and Breyer testified before the Senate Judiciary Committee on a variety of topics, including the role of judges, the value of televised oral arguments, and the increasing size of the federal judiciary.  Coverage comes from Joan Biskupic of USA Today, MJ Lee of Politico, Emmarie Huetteman of the New York Times, James Vicini of Reuters, David G. Savage of the Los Angeles Times, Mark Sherman of the Associated Press, Douglas Berman at Sentencing Law and Policy, Mike Sacks of the Huffington Post, and C-SPAN. Video of the hearing is available here.

Monday’s order list continues to generate media coverage. David Kravets at Wired Magazine’s Threat Level blog characterizes the denial of certiorari in Vernor v. Autodesk, Inc. as “another erosion of the so called ‘first-sale’ doctrine”, which is “an affirmative defense to copyright infringement” allowing “owners of copyrighted works to resell those copies.” (Thanks to Howard Bashman of How Appealing for the link.) J.M. Brown of the Santa Cruz Sentinel and Fox News both report on the denial of a petition filed by the city of Santa Cruz, which was seeking to block a trial in a First Amendment case brought by a man who was expelled from a city council meeting for giving a silent Nazi salute. Brady McCombs of the Arizona Daily Star reports that the Court let stand a Ninth Circuit decision ordering a rancher to pay $87,000 “related to his assault of illegal immigrants on his ranch in 2004.” And the Public News Service and the Greenspace blog of the Los Angeles Times report on the denial of cert. in a case involving the assessment of fees against developers who create air pollution.

Finally, health care commentary and news continue to roll in. Writing for the Weekly Standard, Jeffrey H. Anderson reviews some of the different ways that the Court could approach the challenges to the Affordable Care Act. Lyle Denniston of this blog reports that lawyers for Liberty University will soon file a petition seeking review of the Fourth Circuit’s decision holding that the Anti-Injunction Act precludes its challenge to the Affordable Care Act. And Jennifer Haberkorn of Politico asks whether the remainder of the Affordable Care Act can survive if the Court holds the health care purchase mandate unconstitutional.


  • Bill Mears of CNN discusses the dynamics of a Supreme Court oral argument.
  • The Associated Press (via the Washington Post) reports that Justice Kagan convinced the national organization of bankruptcy judges to drop “an unusual $100 fee it was planning to charge reporters” to cover her talk to the group later this month in Tampa.
  • Liz Halloran reports for NPR on Fisher v. University of Texas at Austin, a challenge to the use of affirmative action in the University of Texas’s admissions policies.
  • Writing in the Wall Street Journal, Adam White reviews Justice Stevens’s recently released memoir, Five Chiefs.
  • Monica Haymond of Love the Process considers why the Court only considered the limited question of standing in Reynolds v. United States.
  • HR.BLR reports on a recent decision by California’s intermediate appellate court, in the wake of the Court’s recent decision in AT&T Mobility v. Concepcion, which makes clear that “it will take more than just a class action waiver to kill off employment-related lawsuits brought on behalf of groups of employees in California.”
  • Todd Zywicki of The Volokh Conspiracy links to a Federalist Society preview of the October Term 2011.

Recommended Citation: Kiran Bhat, Thursday round-up, SCOTUSblog (Oct. 6, 2011, 9:53 AM),