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Wednesday round-up

Yesterday was an active day at the Court, as the Justices heard arguments in two cases and issued orders and opinions in several others.

The biggest news was yesterday’s cert. grant in Fisher v. University of Texas, the challenge to the University of Texas’s use of race in its undergraduate admission decisions.  Lyle provides coverage of the grant for this blog; elsewhere coverage comes from Greg Stohr at Bloomberg, Nina Totenberg at NPR, Adam Liptak at the New York Times, David Savage at the Los Angeles Times, Robert Barnes at the Washington Post, Mike Sacks at the Huffington Post, James Vicini at Reuters, Jess Bravin at the Wall Street Journal, Joe Palazzolo at the Wall Street Journal Law Blog, Mark Sherman at the Associated Press, Warren Richey at the Christian Science Monitor, Jeremy Leaming at ACSblog, Michael Doyle at McClatchy Newspapers, Jaclyn Belczyk at JURIST, and Mark Walsh at the “School Law” blog of Education Week. (Thanks to Howard Bashman for the last link.)

The Court’s grant in Fisher also prompted a significant amount of commentary.  At PrawfsBlawg, Franita Tolson offers her predictions regarding the case, while Paul Horwitz offers “some lighter, but fairly confident, predictions of [his] own.” At the Volokh Conspiracy, Ilya Somin predicts that “the Court is most likely to strike down the Texas program because it is not ‘narrowly tailored’ to its supposed objective of promoting diversity.” At Just Enrichment, Adam Chandler outlines some of the “procedural hurdles” the case might present, while Richard Kahlenberg at Slate describes the case as providing “an opportunity for Barack Obama to embrace a new forward-looking vision of affirmative action.”  Ruthann Robson also has commentary on the case at Constitutional Law Prof Blog.

The Court’s other orders included a cert. grant in Lozman v. City of Riviera Beach, Florida, in which the Court will weigh in on the definition of a “vessel” for purposes of triggering maritime jurisdiction, and invitations for the Solicitor General to file briefs expressing the views of the United States in two cases:  Rubin v. Islamic Republic of Iran and Vance v. Ball State University.  The Court also issued an order allocating oral argument time in the challenges to the Affordable Care Act; Lyle covered that order for this blog, as did Greg Stohr for Bloomberg and Steven D. Schwinn at Constitutional Law Prof Blog.  And the Court denied cert. in E.R.G. v. E.H.G., a case involving grandparent visitation rights, and Spector v. California, in which music producer Phil Spector sought review of his murder conviction.  Warren Richey at the Christian Science Monitor and the Associated Press provide coverage of the former case, while James Vicini of Reuters provides coverage of both cases (here and here).

The Court also issued two opinions in argued cases and two per curiam opinions in non-argued cases yesterday.  Lyle provided early coverage of the opinions for this blog.  In Howes v. Fields, the Court unanimously held that the Sixth Circuit’s categorical rule – that an interrogation is per se custodial, for purposes of Miranda v. Arizona, when a prisoner is questioned in private about events occurring outside the prison – is not clearly established by Supreme Court precedent; the Court divided on whether the inmate was in fact “in custody” for Miranda purposes.  Adam Liptak at the New York Times, Kent Scheidegger at the blog Crime & Consequences, James Vicini at Reuters, and Jesse J. Holland at the Associated Press provide coverage of the opinion.  In Kawashima v. Holder, the Court held by a six-to-three vote that convictions for filing a false tax return are crimes “involv[ing] fraud or deceit” under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies for purposes of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., when the loss to the government exceeds $10,000.

The Court’s first per curiam opinion came in Wetzel v. Lambert.  In that case, the Court vacated a decision by the Third Circuit granting a death row inmate a new trial based on prosecutors’ failure to disclose a document indicating that one of the inmate’s accomplices had identified a third person as a “co-defendant.”  The Court remanded the case for further proceedings on the ground that the Third Circuit had failed to address the state court’s determination that the notations on the document were ambiguous rather than exculpatory.  At Crime and Consequences, Kent Scheidegger has two posts (here and here) discussing the case.  And in Marmet Health Care Center, Inc. v. Brown and Clarksburg Nursing Home & Rehabilitation Center, LLC v. Marchio, the Court vacated a West Virginia Supreme Court of Appeals decision, holding that the state’s categorical prohibition of pre-dispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes is preempted by the Federal Arbitration Act.

The Court also heard arguments in two cases yesterday.  In Freeman v. Quicken Loans, the Court will consider whether Section 8(b) of the Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog, represents the petitioners in the case, but the author of this post is not involved in the case.]  In Taniguchi v. Kan Pacific Saipan, the Court is considering whether a federal statute that allows the prevailing party in a lawsuit to recover costs for compensation of interpreters also allows compensation for document translation costs.  Jaclyn Belczyk of JURIST provides coverage of both cases, while Peter Landers at the Wall Street Journal Law Blog observes that in the latter case, the “Supreme Court [J]ustices seemed pretty sure . . . they knew how to interpret the meaning of the word ‘interpreter.’”  Kali provides links to transcripts of both arguments here.

Today the Court will hear oral arguments in United States v. Alvarez, a challenge to the constitutionality of a federal statute that criminalizes false statements about having received military honors.  Lyle previews the case for this blog, while NPR’s Nina Totenberg, Ariane de Vogue of ABC News, and Jeffrey Toobin of the New Yorker provide additional coverage.  The Court will also hear oral arguments in Blueford v. Arkansas, presenting the question whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.  Anne Bowen Poulin previews the case for this blog, while Alex Kreit previews the case for ACSblog.

In other news, sponsors of California’s ban on same-sex marriage have asked the Ninth Circuit to reconsider the case en banc – a move that would vacate the panel ruling and delay the case’s potential arrival at the Supreme Court.  Lyle provides coverage at this blog; elsewhere, coverage comes from Karen Gullo at Bloomberg, Maura Dolan at the Los Angeles Times, Lisa Leff at the Associated Press, Joe Palazzolo at the Wall Street Journal Law Blog, Eugene Volokh at the Volokh Conspiracy, Ruthann Robson at Constitutional Law Prof Blog, and Howard Mintz at the San Jose Mercury News. (Thanks to Howard Bashman for the last link.)

And finally, Chief Justice Roberts has sent a letter to several members of the Senate Judiciary Committee in which he indicated that the Justices do not plan to adopt for themselves the ethical code binding lower federal court judges.  Providing coverage are Lyle at this blog, Robert Barnes at the Washington Post, Bill Mears at CNN, and the Associated Press.


  • Eric Morath at the Wall Street Journal (subscription required) and the Associated Press report that police inNevis have arrested a suspect in the armed robbery of Justice Breyer.

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Feb. 22, 2012, 9:45 AM),