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Monday round-up

Today, the Court begins the December sitting with oral arguments in two cases.  In Mims v. Arrow Financial Services, LLC, which Ronald Mann previewed for this blog, the Court will consider federal court jurisdiction under the Telephone Consumer Protection Act.  And in First American Financial Corp. v. Edwards, which Christopher Wright previewed for this blog and James Vicini previewed for Reuters, the Court will consider the “injury in fact” prong of Article III standing under the Real Estate Settlement Services Act.

Discussion of the Affordable Care Act turned primarily to debates over judicial recusal, with a focus on Justices Thomas and Kagan.  Lyle summarizes the arguments here, while Mark Sherman of the Associated Press and Robert Barnes of the Washington Post also provide coverage of the debate; Roger Pilon weighs in on the merits of the debate at CATO@Liberty, as does Carrie Severino of the Judicial Crisis Network in an op-ed in the Washington Examiner.  At New York Magazine, Dahlia Lithwick examines Justice Kagan’s first year on the Court, emphasizing that “[p]eople who think Justice Elena Kagan should recuse herself from the looming ‘Obamacare’ case might want to take a closer look at her first term … while Kagan is assuredly a liberal, and likely also a fan of the health-reform law, a close read of her tenure at the Supreme Court suggests that she is in fact the opposite of a progressive zealot.”

Commentators also offered broader thoughts on various aspects of the ACA litigation.  In his column for law students for this blog, Stephen Wermiel provides “[a]n introduction to jurisdiction and remedies, through the lens of the health care cases.”  At the New York Times Economix Blog, Uwe E. Reinhardt emphasizes that, through their constitutional reasoning, “the justices will be making major health policy.”  Blake Aued summarizes the issues in the case for the Athens Banner-Herald, as does Neil Reynolds in his column for the Toronto Globe and Mail.  The editorial board of the Washington Post urges the Court to allow cameras in the courtroom, arguing that the ACA cases “would be a fitting vehicle for the court’s first televised argument.” In a New York Review of Books essay entitled “How the Justices Get What They Want,” Robert Gordon reviews two recent books on the Court to provide historical context for the ACA challenges.  And Julian Pecquet of The Hill reports on an expected flood of amicus briefs in the ACA litigation.

As Lyle reports for this blog, Texas announced over the weekend that it will request an emergency order from the Court today to “delay the implementation of a new redistricting plan for the two chambers of the state’s legislature — a plan drawn up by a three-judge federal District Court for use temporarily as election season begin.”  Bloomberg, The Houston Chronicle, the Election Law Blog, and Constitutional Law Prof Blog all provide coverage.


  • For this blog, Alex Wohl previews Federal Aviation Administration v. Cooper (whether the Federal Privacy Act includes damages for mental and emotional distress), while Michael Dimino previews Setser v. United States (whether a district court may direct that a criminal defendant’s sentence run consecutively with a yet-to-be-imposed sentence that the defendant is expected to receive for a state crime).
  • In the Washington Post, Robert Barnes previews Wednesday’s argument in PPL Montana v. Montana, in which the Court will consider a dispute over how to determine whether a river is navigable.
  • In the Los Angeles Times, David G. Savage reports on Justice Scalia’s role as leader of an “unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving.”
  • At Verdict, Vikram David Amar and Alan Brownstein argue that, even if the Proposition 8 case does reach the Court, “it is still quite unclear … whether the Court will rule on the merits—or instead dismiss the appeal on procedural grounds.”
  • Also at Verdict, Julie Hilden explains why, in her view, the Court is likely to grant cert. to reverse a recent decision by the Third Circuit in an indecency case arising out of Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show.
  • Denise Jewell Gee of the Buffalo News reports on a cert. petition filed by Erie County asking the Court to review a Second Circuit ruling “that the county failed to put policies in place at the jail to prevent the rape.” (Hat tip to Howard Bashman @ How Appealing.)
  • John Lynch of the Arkansas Democrat-Gazette previews Blueford v. Arkansas, in which the Court will consider whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
  • In the Silicon Valley Mercury News, Howard Mintz profiles Karen Golinski and Amy Cunninghis –plaintiffs in a constitutional challenge to the Defense of Marriage Act (DOMA) – and reports on the string of challenges to DOMA that could reach the Court within a few years.


Recommended Citation: Joshua Matz, Monday round-up, SCOTUSblog (Nov. 28, 2011, 9:42 AM),