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Wednesday round-up

The Court continued its busy week yesterday, issuing its first opinion of the Term and hearing oral arguments in two cases – all of which generated a spate of coverage and commentary by Court watchers.

In Greene v. Fisher, a unanimous Court held that for purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA), “clearly established federal law” is limited to the Supreme Court’s decisions “as of the time of the relevant state court adjudication on the merits.”  [Disclosure:  Goldstein & Russell, whose attorneys work for or contribute to this blog in various capacities, represented the petitioner in the case.]  Coverage of the opinion comes from Debra Cassens Weiss at the ABA Journal, Jaclyn Belczyk at JURIST, and the Associated Press (via the Washington Post).  At Crime and Consequences, Kent Scheidegger discusses the decision, commenting that the difference between “the nonretroactivity rule of Teague v. Lane,” and “the rule of generally not relitigating in federal court issues already decided by the state court . . . in [AEDPA].” 

The Court also heard oral arguments yesterday in United States v. Jones and Smith v. Cain, with the former case dominating news coverage.  Kiera has posted the transcripts in both of the arguments here.

In Jones, the Court heard arguments on whether the Constitution permits police to put a GPS tracking device on a car without either a warrant or the owner’s permission.  At this blog, Lyle Dennniston has an extensive report on the argument, observing that the Justices “know just enough about the GPS device to see in it a considerable threat,” while at Bloomberg News Greg Stohr writes that the Justices “raised the specter of George Orwell’s novel “1984”—an observation echoed by Joan Biskupic at USA Today and Adam Liptak of the New York Times among others.  At NPR, Nina Totenberg observes that the case “could have enormous implications for privacy rights in the information age.”  Additional coverage is provided by Mike Sacks of the Huffington Post, Dahlia Lithwick of Slate, Mark Sherman of the Associated Press, James Vicini of Reuters, David Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Julia Zebley of JURIST, Nicole Flatow of ACSblog, Kashmir Hill of Forbes, David Kravets of Wired, Suzanne Choney of MSNBC’s Technolog, Brendan Sasso of The Hill’s Hillicon Valley blog, Bill Mears of CNN, and at NPR’s Talk of the Nation (radio segment).  At the Volokh Conspiracy, Orin Kerr’s “basic reaction was that the outcome was too close to call,” while Jim Harper’s impression at Cato @ Liberty was that “most members of the Court want to rule that the government does not have free reign to attach GPS devices to cars.”  And at the Wall Street Journal Law Blog, Jess Bravin describes one “interesting aspect of the case”:  “the way it scrambles the usual ideological lines.”  And finally, in an op-ed for the Huffington Post, Senator Ron Wyden urges Congress to step in to “provide much needed clarity for law enforcement” on this issue.

The Court also heard arguments in Smith v. Cain yesterday, a case in which a Louisiana district attorney’s office failed to provide defense lawyers with statements from the only witness in a murder trial who could have cast doubt on the inmate’s murder conviction.  Lyle reported on the oral argument for this blog, while Adam Liptak and Jesse J. Holland covered the case for the New York Times and the Associated Press, respectively.

Today the Court will hear arguments in National Meat Association v. Harris and Kurns v. Railroad Friction Products Corp.  Shon Hopwood previews the latter case here for this blog.

Yesterday’s coverage also focused on the D.C. Circuit’s two-to-one opinion in Seven-Sky v. Holder, holding that the individual mandate provision of the Affordable Care Act is constitutional.  As Lyle observes in his coverage of the opinion, the ruling comes just a few days before the Supreme Court is scheduled to consider the constitutional challenges to the new law.  The opinion prompted coverage from nearly every major news outlet, including Joan Biskupic of the USA Today, Tom Schoenberg and Andrew Harris of Bloomberg News, Jennifer Haberkorn of Politico, Nedra Pickler of the Associated Press, Jeremy Pelofsky and Lisa Lambert of Reuters, Noam M. Levey of the Los Angeles Times, Bill Mears of CNN, John Schwartz of the New York Times, N.C. Aizenman of the Washington Post, Warren Richey of the Christian Science Monitor, and Ariane de Vogue of ABC News.  (Thanks to Howard Bashman for providing the last link).  At the Wall Street Journal Law Blog, Ashby Jones remarks that “on its face, the ruling will have little impact” on the Court, but that “any justices on the fence” about the individual mandate could be swayed by the words of the three “highly regarded jurists” on the D.C. Circuit’s panel.

The panel opinion, along with its dissent, also generated a significant amount of commentary from the blogosphere.  At the Volokh Conspiracy, several commentators weighed in on the opinion, including Orin Kerr (here), Stuart Benjamin, Ilya Somin, and Randy Barnett.


  • At this blog Kevin Russell recaps Monday’s argument in Kawashima v. Holder, a case involving the immigration consequences of filing a false tax return.
  • At PrawfsBlawg, John Pfaff discusses his plans to evaluate the Court’s opinions this Term based on “each opinion’s use of empirical evidence.”
  • Daniel Fisher of Forbes reports on Monday’s cert. grant in Magner v. Gallagher.
  • In an op-ed for the Los Angeles Times, Nicholas Goldberg reacts to M.B.Z. v. Clinton, in which the Court heard arguments on Monday.
  • At PrawfsBlawg, Mark Kende discusses Justice Breyer’s “democratic pragmatis[m].”
  • At the Boston Globe, James Alan Fox discusses the Court’s recent decision to examine the constitutionality of mandatory life sentences for juveniles and a Massachusetts law that would eliminate such punishments for juveniles.

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Nov. 9, 2011, 12:37 PM),