Monday round-up

JOSHUA MATZ DEC 5, 2011 9:30 AM

At 10 a.m., the Court will issue orders from its December 2 Conference.  The Justices will then hear oral argument in two cases.  In Caraco Pharmaceutical Laboratories v. Novo Nordisk (which Ronald Mann previewed for this blog), the Court will consider whether a generic drug manufacturer may sue the company that produces the brand-name version of the drug to require it to correct information filed with the Food and Drug Administration.  In Messerschmidt v. Millender (which Michael Smith previewed for this blog and Orin Kerr also analyzed), it will address police immunity for carrying out overbroad search warrants.  At Concurring Opinions, Kyle Graham explores what might happen in subsequent judicial proceedings if the Court rejects the police officers’ qualified immunity claim.

The Court may act as soon as today on a request by Texas to review an opinion by the Fifth Circuit requiring the state to adopt court-ordered interim redistricting maps for upcoming elections to the state legislature and the House of Representatives.  Lyle has covered the controversy extensively for this blog; Ross Ramsey of the Texas Tribune, Michael Kirkland of UPI, and David G. Savage of the Los Angeles Times also provide coverage.  The editorial board of the New York Times also weighs in, arguing that if Texas “really wants to keep the courts out of the process,” it should adopt nonpartisan redistricting commissions.

On Wednesday, the Court will hear argument in Mayo Collaborative Services v. Prometheus Laboratories, a case in which the Court will decide whether the correlation between blood test results and patient health is patentable.  As Lyle notes in his preview, “the case might produce a sweeping new decision on the right to gain a monopoly over a medical diagnostic technique, or it might end with at least a hint that the specific patent in dispute is simply invalid because it may not be enough of a new invention.”  Daniel Fisher of Forbes and Jim Spencer of the Minneapolis Star Tribune also preview the case.

The debate over whether Justices Thomas or Kagan should recuse themselves from the litigation over the constitutionality of the Affordable Care Act continued through the weekend.  In an op-ed in the Wall Street Journal, former federal judge and Attorney General Michael Mukasey argues that “upon even a cursory examination of the facts it is clear that neither justice should step aside.”  The editorial board of the Washington Post also weighs in against recusal, noting that the Justices “must set aside personal preferences when deciding matters of law.”

In this blog, Lyle continues his comprehensive analysis of the health care cases by exploring the close tie between the individual mandate and new obligations for expanded insurance coverage.  At Verdict, Michael Dorf and Neil Siegel argue that the Anti-Injunction Act does not bar the Court’s review of the individual mandate, but they add that, to resolve any doubt, “Congress should enact a special-purpose statute stating that the Anti-Injunction Act does not bar pre-enforcement challenges to the minimum coverage provision until that provision actually goes into effect.”  At his blog Dorf on Law, Michael Dorf analyzes another aspect of the health care litigation and concludes that adjudication this year, in addition to being appropriate under the AIA, would be better on balance for a number of independent reasons.

Briefly:

• Alex Wohl recapped the oral argument in Federal Aviation Administration v. Cooper, in which the Court is considering what kind of damages are available under the Privacy Act of 1974; he concludes that “[t]he Court is clearly split on the issue . . . [and] Justice Kennedy will likely hold the deciding vote.”
• At Verdict, John Dean characterizes “control of the U.S. Supreme Court” as the “Republican Dream” for the 2012 presidential election.
• The Great Falls Tribune previews PPL Montana LLC v. Montana, in which the Court will consider how to determine whether a river is navigable.  (Thomas Merrill previewed the case for this blog last week.)
• At Constitutional Law Prof Blog, Steven D. Schwinn reports that the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts will hold a hearing on Tuesday entitled Access to the Court: Televising the Supreme Court.
• At PrawfsBlawg, Michael O’Hear discusses last week’s grant in Vasquez v. United States, a case about the harmless error standard.
• At Lawfare, Benjamin Wittes reports on the government’s brief in opposition to the cert. petition filed by Uthman Abdul Rahim Mohammed Uthman, a Guantanamo detainee.
• At Politico, Josh Gerstein discusses the prospect that the government could file a cert. petition seeking review of a Ninth Circuit decision overturning the criminal conviction of a man who made internet threats to assassinate then-presidential candidate Barack Obama.
• At the Washington Post, Tara Bahrampour reports on an estate sale at the home of the late Justice Potter Stewart.
• Jessie Balmert of the Newark Advocate reports on the pending cert. petition in Ohio v. D.B., in which the state is challenging a ruling that “eliminated statutory rape charges for juveniles younger than 13.″
• Sam Dillon of the New York Times reports on new guidelines promulgated by the Department of Education that reject “Bush-era interpretation of recent Supreme Court rulings that limited affirmative action in admissions.”
• Jim Fitzgerald of the Associated Press reports on the cert. petition in Bronx Household of Faith v. Board of Education of City of New York, in which a church is seeking review of the Second Circuit’s decision upholding a city policy precluding worship services in public facilities.
• At the Associated Press, Mark Sherman discusses the cert. petition in Reichle v. Howards, a case about qualified immunity and First Amendment retaliatory arrest claims.

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