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Thursday round-up

The Court heard arguments in two cases yesterday morning, with United States v. Alvarez garnering most of the media’s attention. The case involves a First Amendment challenge to the Stolen Valor Act, which criminalizes lies about having received military decorations. Writing for this blog, Lyle Denniston reports that the government urged the Court to interpret the law narrowly; other coverage comes from Nina Totenberg of NPR, Adam Liptak of the New York Times (who also discussed the oral argument for the paper’s At War blog), David G. Savage of the Los Angeles Times, James Vicini of Reuters, Michael Doyle of McClatchy Newspapers,  Mark Sherman of the Associated Press, Mike Sacks of the Huffington Post, and Warren Richey of the Christian Science Monitor.

Commentary on the argument came from the editorial boards of the Washington Post and New York Times, both of which urged the Court to find the Act unconstitutional. At the Constitutional Law Prof Blog, Ruthann Robson analyzed the argument, concluding that Justice Alito seemed to believe that “Congress has broad authority to criminalize falsehoods” but that the other Justices did not give away their opinions during arguments; at ACSblog, she argued that “federal laws should criminalize fraudsters, not braggarts.”  At the Volokh Conspiracy, Eugene Volokh observed that the Justices appeared interested in the issue of when “knowing lies [should] be restrictable on the ground that they cause emotional distress,” while Douglas A. Berman puts a “sentencing spin” on the arguments at Sentencing Law and Policy.

The Court also heard arguments in Blueford v. Arkansas, in which the Justices will consider whether the Double Jeopardy Clause bars reprosecution on a greater offense when a jury has deadlocked on a lesser-included offense but announces that it has voted against guilt on the greater offense. Jesse Holland of the Associated Press reports that the Justices “seemed divided” on the issue. Michael Hibblen of KUAR (Little Rock, Ark.) also has coverage. Kali has links to the transcripts in both of yesterday’s arguments here.

Before hearing oral arguments yesterday morning, the Court issued three opinions. In Douglas v. California Pharmacists Association and two consolidated cases, the Court remanded the case 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. Lyle Denniston analyzes the opinion for this blog. At PrawfsBlawg, Steve Vladeck contends that the “majority avoided a potentially momentous holding on the availability vel non of injunctive relief to enforce federal statutes.” Michael Doyle of McClatchy Newspapers, David Savage and Chris Megerian of the Los Angeles Times, Julie Rovner of NPR’s Shots Blog, and James Vicini of Reuters also have coverage of the decision.

In PPL Montana, LLC v. Montana, the Court unanimously reversed the Montana Supreme Court’s ruling that the state of Montana owns and may charge petitioners for use of the riverbeds. Greg Stohr of Bloomberg reports that “the decision lifts a legal cloud” for companies that operate on large rivers, although environmentalists warned the decision would “weaken the ability of states to protect fisheries, river ecosystems and recreation areas.” Mark Sherman of the Associated Press, Reuters, Debra Cassens Weiss of the ABA Journal, and Barbara Leonard of Courthouse News also have coverage.

In Messerschmidt v. Millender, the Court reversed the Ninth Circuit and held that the petitioners, a group of police officers, had qualified immunity from civil liability even though they may have used a defective warrant to search a woman’s house after the woman’s son assaulted his ex-girlfriend. Orin Kerr discusses the opinion for this blog and at the Volokh Conspiracy,  while Adam Liptak of the New York Times, Debra Cassens Weiss of the ABA Journal, and Jesse Holland of the Associated Press also have coverage. Kali has coverage of and links to all three of yesterday morning’s opinions here.

Discussion of the Court’s decision to grant cert. in the affirmative action case Fisher v. University of Texas at Austin also continued yesterday.  Writing at Bloomberg View, Noah Feldman discusses the grant in the context of Justice O’Connor’s previous affirmative action opinions. Writing for the New York Times, Tamar Levin discusses the impact that a decision prohibiting the use of race as a factor in college admissions could have on diversity at universities, while at Forbes Michael Bobelian urges the Court to “tread carefully” and not ban affirmative action.

Finally, the Court’s denial of cert. in several petitions also generated several stories. Elizabeth Campbell of the Arlington (Tex.) Star-Telegram reports on the Court’s denial of a petition filed by that city seeking review of the question “whether sidewalks are programs or facilities under the Americans with Disabilities Act.” David G. Savage of the Los Angeles Times reports on the Court’s denial of a petition by another city, Redondo Beach (Calif.), seeking “to reinstate its ordinance barring day laborers from gathering on busy street corners to solicit work from passing drivers.” And Penny Arévalo of the San Juan Capistrano (Cal.) Patch reports that the Court denied cert. in a case involving a teacher who allegedly made disparaging remarks about Christianity in the classroom.


  • Greg Stohr of Bloomberg highlights Justice Scalia’s potentially pivotal role in deciding the upcoming health care cases.
  • The editorial board of the New York Times argues that if the Court grants review in the Montana campaign finance case, “it should call on the state court and the parties to gather data on the impact of Citizens United . . . so that the justices make a decision based on a real case and controversy.” At that paper’s Opinionator Blog, Linda Greenhouse calls the chances of a ruling overturning Citizens United “a long shot, but an intriguing one.”
  • David Kravets of Wired’s Threat Level Blog reports that the government has filed a cert. petition seeking review of a decision by the Second Circuit allowing a challenge to a warrantless surveillance program to move forward.
  • Writing for the Huffington Post, Nan Aaron criticizes the Chief Justice’s Tuesday letter to five senators indicating that the Justices will not formally adopt the ethics code applicable to other federal judges.
  • Also at the Huffington Post, Alex Glashausser discusses the meaning of the word “it” in the Constitution’s Exceptions Clause, arguing that the original meaning of the Exceptions Clause was to permit “Congress to expedite Supreme Court cases, not knock them out.”
  • Andrew Harris of Bloomberg reports that a federal judge in Utah will not consider a bid to block enforcement of that state’s immigration laws until after the Court’s decision in Arizona v. United States.
  • Kevin Russell discusses yesterday’s opinion in Kawashima v. Holder for this blog, while Kelly Phillips Erb does the same at Forbes.
  • Alan Raphael analyzes yesterday’s opinion in Howes v. Fields for this blog.
  • Brian Wolfman discusses Tuesday’s arguments in Taniguchi v. Kan Pacific Saipan Ltd. for this blog, while Michelle Olsen offers her comments on the argument at Appellate Daily.
  • Ronald Mann reports on Tuesday’s arguments in Freeman v. Quicken Loans, Inc. for this blog. Writing at the Huffington Post, Lauren E. Willis contends that the real issue in Freeman is “whether the price people pay for obtaining a mortgage must be transparent.”
  • WFTV 9 Orlando (Fla.) reports that James Saunders, a man convicted of rape in Brevard County when he was 19, will be sentenced for a third time following the Court’s holding in Graham v. Florida that juvenile offenders cannot be sentenced to life imprisonment without parole for crimes other than homicide.
  • At the Huffington Post, former New York City Mayor Ed Koch discusses whether Justice Breyer’s decisions may be affected “by the trauma of being threatened by a machete wielding robber.”

Recommended Citation: Kiran Bhat, Thursday round-up, SCOTUSblog (Feb. 23, 2012, 10:34 AM),