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Friday round-up

The Court’s recent opinions and cert. grants continue to draw heavy coverage.

The cert. grant in Fisher v. University of Texas at Austin has prompted heated debates about the future of affirmative action and its likely fate before the Court.  Monica Rhor of the Houston Chronicle covers the grant, while Sarah Garland contends in a guest post at the Washington Post’s College, Inc. blog that the fate of the case “will most likely rest with Justice Anthony Kennedy, the swing vote on the court, who has been a vociferous critic of racial quotas, but who has also published some fairly nuanced opinions on race in college admissions.”  Lyle echoes this sentiment at the Huffington Post, speculating that Justice Kennedy “may not yet be ready to cast aside altogether the use of race as ‘one, nonpredominant factor’ in a system that actually treats college admission in an applicant-by-applicant process.”  In the Boston Globe, Mary Carmichael reports on reactions to the grant by university officials in the Boston area.

Turning to the merits of the Fisher case, the editorial board of the Los Angeles Times argues that it would be a “tragedy” to end affirmative action in the name of “colorblindness.”  Writing at the Huffington Post, Michael Roth agrees; he contends that the Court must “continue to allow universities to consider race and ethnicity within a holistic admissions process that aims to create a student body that maximizes learning.”  Striking a different note, Jason J. Riley argues in the Wall Street Journal that “the case for affirmative action … has never been weaker.”  The issues raised by Fisher are also the subject of discussion at the “Room for Debate” blog of the New York Times.

Discussing oral argument in United States v. Alvarez (the Stolen Valor Act case), Laurie Asseo and Greg Stohr report at Bloomberg Businessweek that the argument covered a wide range of topics, from “wartime bravery” to “high school diplomas and lies people tell on dates.”  Other coverage of the oral argument comes from Robert Barnes in the Washington Post, who reports that the Court is “conflicted about prosecuting those who lie about military valor,” while Bill Mears of CNN describes the Justices as “show[ing] a surprising amount of support for the federal Stolen Valor Act.”  In the Wall Street Journal, Jess Bravin also covers the oral argument; he observes that although “Supreme Court justices expressed reverence Wednesday for the valor represented by U.S. military decorations, . . .some questioned whether falsely claiming to have received a medal should be a federal offense.”

Writing for this blog, Thomas Merrill analyzes Wednesday’s unanimous opinion in PPL Montana, LLC v. Montana.  He explains that, although “the state of Montana has been rebuffed in its efforts to claim title to riverbeds in Montana where privately owned hydro-electric dams are located,” the opinion is remarkable primarily because of the “Court’s willingness to review the record evidence – and lots of evidence outside the record besides – to grant what amounts to partial summary judgment for PPL Montana.”  The Great Falls Tribune, Greenwire, and the Helena Independent Record also provide coverage. (Thanks to Howard Bashman at How Appealing for the latter links).

In Douglas v. California Pharmacists Association and two consolidated cases, the Court remanded for further argument before the Ninth Circuit on whether petitioners may maintain their challenges to California statutes reducing the amount of Medicaid reimbursements in light of the approval of the cuts by the Centers for Medicare and Medicaid Services.  At ACSblog, Rochelle Bobroff argues that “luckily, the majority of the Court has preserved court access for the poor, at least for now, although final resolution of the court access question has been left for another day.”  Steven D. Schwinn of the Constitutional Law Prof Blog concurs, summarizing the opinion and concluding with a simple admonition:  “In short, this case isn’t over.  In fact, it looks like it’s just beginning.”  Chris Megerian of the Los Angeles Times PolitiCal Blog reports that the opinion “highlighted the legal minefield that California must navigate while trimming its budget.”


  • David Savage of the Los Angeles Times reports on Wednesday’s decision in Messerschmidt v. Millender, observing that “the case made for unusual allies” insofar as “[t]he American Civil Liberties Union and the National Rifle Assn. backed Millender, and the Obama administration joined in support of the deputies.”
  • Amy discusses this week’s cert. grants “In Plain English.”
  • Writing in the Blog of the Legal Times, Tony Mauro reports on a protest at the Court triggered by the Montana Supreme Court’s recent campaign finance opinion, adding that “it’s a safe bet that a ruling by the Montana Supreme Court has rarely if ever triggered a demonstration in the nation’s capital.”
  • The editorial board of the San Francisco Chronicle weighs in on the recent district court opinion invalidating the federal Defense of Marriage Act (which Lyle covered for this blog); it predicts that, although “courtrooms across the country are sending an unmistakable message,” the issue “won’t likely be resolved until the Supreme Court settles the matter.”
  • Discussing Kiobel v. Royal Dutch Petroleum in an op-ed for the Washington Post, John B. Bellinger, III argues that “the Supreme Court should not interpret the Alien Tort Statute, which was enacted for a different purpose, to allow U.S. courts to sit in judgment over acts that take place in foreign countries, without a clear congressional mandate.”
  • At Fox News, Shannon Bream reports that gun ownership remains difficult to achieve in some parts of the country, notwithstanding the Court’s 2008 decision in District of Columbia v. Heller.
  • In the Atlantic, Ben Heineman, Jr., argues that the upcoming presidential election could “tip the balance of the Supreme Court” and dislodge Justice Kennedy from his position as the “swing vote.”
  • Mitch Stacy of the Associated Press (via the Huffington Post) reports that Peru has asked the Court to block the transfer of a sunken treasure, currently located in the United States, claimed by Spain.
  • Michael Cohn of Accounting Today and Sally Schreiber of the Journal of Accountancy cover the Court’s opinion in Kawashima v. Holder.
  • Rick Hasen of the Election Law Blog reports on a connection between the Court’s campaign finance jurisprudence and the recent oral argument in United States v. Alvarez (the Stolen Valor Act case).
  • At ABC News, Ariane de Vogue reports that “Justice Ginsburg is laying down a marker” in campaign finance by indicating her willingness (joined by Justice Breyer) to reconsider Citizens United in light of subsequent developments.


Recommended Citation: Joshua Matz, Friday round-up, SCOTUSblog (Feb. 24, 2012, 9:54 AM),