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Friday round-up

The Court issued three opinions on Wednesday, all of which continue to generate coverage and commentary.

In Maples v. Thomas, the Court held that death row inmate Cory Maples had shown requisite “cause” to excuse his procedural default, which occurred after his lawyer missed a filing deadline in state court. The Atlantic’s Garrett Epps reviews the decision and concludes that “Alito-style conservatism, for good and for ill, may be the wave of this Court’s future.” Also in the Atlantic, Andrew Cohen argues that the case reveals “one of the main ideological fault lines on the Court. Justice Scalia wants certainty and finality on appeal—even if it means injustice to a capital defendant.” And at the American Prospect, Scott Lemieux argues that the case “provides a disturbing look at the death penalty system in the United States and underscores how even people facing execution are often not represented by adequate counsel at any stage of the criminal process.”

In Golan v. Holder, the Court upheld a federal law that returned copyright protection to works that had already entered the public domain. [Disclosure:  Goldstein & Russell, whose attorneys work for and contribute to this blog in various capacities, represented the petitioners in the case.]  At Gizmodo, Andrew Tarantola argues that the Court’s decision “run[s] completely against the spirit of copyright law.” Alison Frankel of Thomson Reuters examines the implications of this decision for congressional efforts to combat online piracy; she concludes that, if Congress passes some version of the Stop Online Piracy Act (SOPA) or the Protect Intellectual Property Act (PIPA), these laws will be difficult to overturn in the courts because Golan “expressly endorses Congressional authority to determine the scope of copyright protection.”

Finally, in Mims v. Arrow Financial Services LLP, the Court held that the Telephone Consumer Protection Act’s grant of jurisdiction to state courts does not deprive federal district courts of federal-question jurisdiction over private enforcement suits. This blog’s Ronald Mann provides analysis of the decision. Mann explains that “the Court stuck with the well-settled rules for federal-question jurisdiction, rejecting the conclusion of most of the courts of appeals that the odd language of [the Act] relegated suits under that statute to state courts.”

The Court also heard oral arguments this week in Filarsky v. Delia and Vartelas v. Holder, among other cases. This blog’s Bradley Joondeph recaps Tuesday’s oral arguments in Filarsky, in which the Court will consider whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a private lawyer rather than a government employee. As Joondeph observes, “a majority of the Justices seemed inclined to hold that Mr. Filarsky – a private attorney who had provided services to a city government – was entitled to the protection of qualified immunity.”

In Vartelas, the Court considered whether the statutory revocation of a lawful permanent resident’s right to make “innocent, casual, and brief” trips abroad without fear of being denied reentry applies retroactively to a guilty plea taken prior to the effective date of the statute. The editorial board of the Los Angeles Times urges the Court to reject the federal government’s argument that it should be able to “apply new laws to old crimes in cases against immigrants who are in the country legally”; the board counters that such “retroactivity would be both unusual and unfair.”


  • At the Vancouver Sun, Randy Boswell reports on the Court’s denial of cert. in Bluman v. FEC, an appeal by two Canadian citizens seeking to overturn an election law that prevents foreign nationals living in the United States from spending money in American political campaigns.
  • The Associated Press reports that a North Texas water district plans to file a cert. petition in a federal lawsuit that seeks access to water supplies in southeastern Oklahoma. The Fort Worth Star-Telegram also has coverage.
  • At the Volokh Conspiracy, Orin Kerr discusses his ideal outcome in the challenge to health care reform.
  • Also at the Volokh Conspiracy, David Kopel discusses an amicus brief that he filed on the question of the Medicaid mandate.
  • Jeff Karoub of the Associated Press reports that, in the wake of Court’s decision in Hosanna-Tabor Church v. EEOC, many people employed by religious organizations are confused about whether the Court’s holding will apply to them.
  • In an article for the New Republic (via NPR), law professors Donald Braman and David Fontana summarize their forthcoming article exploring whether people react differently to a Court decision on a controversial issue, versus an act of Congress.
  • The Associated Press‘s Mark Sherman reports that, in a speech given Thursday night, Justice Scalia told his audience that using the courts, rather than elected legislatures, to assert abortion rights is akin to “sneaking it in through a back door.” The Washington Business Journal’s Ben Fischer also has coverage.


Recommended Citation: Marissa Miller, Friday round-up, SCOTUSblog (Jan. 20, 2012, 10:02 AM),