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Thursday round-up

The Court heard oral arguments in two cases yesterday. In Reichle v. Howards, a case arising from the Secret Service’s arrest of a man who touched former Vice President Dick Cheney and made an anti-war comment in a Colorado shopping mall, the Court considered whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the Tenth Circuit erred by denying qualified immunity to the arresting agents. In his report on the oral argument for this blog, Lyle Denniston indicates that the Justices seemed sympathetic to the agents – a view shared in coverage by Adam Liptak of the New York Times, Mike Sacks of the Huffington Post, and Mark Sherman of the Associated Press. Bob Drummond of Bloomberg, Warren Richey of the Christian Science Monitor, and Ruthann Robson of Constitutional Law Prof Blog also have coverage of the case, which Nina Totenberg previewed yesterday for NPR .

In Vazquez v. United States, the Justices heard oral argument on the scope of the “harmless error” rule of the Federal Rules of Civil Procedure 52(a) and 28 U.S.C. § 2111. At Sentencing Law and Policy, Douglas A. Berman contends that Court’s decision regarding application of harmless error in non-traditional contexts, such as appealed convictions following plea bargains, will affect “how consequential any ruling in Vasquez will become.”

The Justices also announced three opinions yesterday, the details of which Kali covered here. In Missouri v. Frye, the Court held – by a vote of five to four – that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that such a right applies to “all ‘critical’ stages of the criminal proceedings.” And in Lafler v. Cooper, the Court held (by the same five-to-four vote) that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Coverage of and commentary on the two decisions come from Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.

In Sackett v. EPA, a unanimous Court held that landowners may bring a civil action under the Administrative Procedure Act to challenge the EPA’s issuance of an administrative compliance order under Section 309 of the Clean Water Act requiring them to take certain actions with respect to their property. Lyle Denniston analyzes the opinion for this blog, with other coverage coming from Greg Stohr and Mark Drajem of Bloomberg, Robert Barnes and Juliet Eilperin of the Washington Post, Lawrence Hurley of E&E Greenwire, Bettina Boxall and David G. Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Ilya Somin and Jonathan H. Adler of the Volokh Conspiracy, Mark Sherman of the Associated Press, Debra Cassens Weiss of the ABA Journal, James Vicini of Reuters, Nina Totenberg and Steven Chen of NPR, and Mike Sacks of the Huffington Post. At Conglomerate, David Zaring considers what, if anything, the Court’s decision in Sackett means for the SEC.

Tuesday’s opinions in Mayo Collaborative Services v. Prometheus Laboratories, Martinez v. Ryan, and Coleman v. Court of Appeals of Maryland continue to generate coverage and commentary. Ronald Mann analyzes the opinion in Mayo for SCOTUSblog; meanwhile, at Alison Frankel’s On the Case blog for Reuters, Terry Baynes reports that “[l]awyers at the American Civil Liberties Union see the high court’s unanimous decision as a good omen for their own case challenging the patentability of human genes.” Timothy B. Lee of Cato@Liberty, Sandra S. Park at ACSblog, and Michael Risch at also comment on Mayo (hat-tip to Orin Kerr of the Volokh Conspiracy for the last link). At this blog, Steve Vladeck analyzes the Court’s opinion in Martinez, while Nina Totenberg and Steven Chen of NPR cover the decision in Coleman.

Finally, anticipation of next week’s arguments in the health care cases continued. At this blog, Kali linked to several longer advocacy pieces on the constitutionality of the Affordable Care Act, while Lyle previews the severability issue (which will be argued on Wednesday morning) for this blog.  Oyez has an interactive tool explaining the procedural history of the litigation and providing video interviews on key issues, while at the Wall Street Journal (subscription required), Jess Bravin profiles the advocates in next week’s arguments. At The Atlantic, Jack Balkin predicts that the Court will not find the Act unconstitutional, but he also notes that “if all of the conservative justices believed that the health care bill was a harbinger of even more radical possibilities — a new era of mindless statism and pervasive socialism — they might seek to nip things in the bud, and risk the political consequences.” The editorial board of the Christian Science Monitor frames the health care debate as an issue of state sovereignty. Linda Greenhouse of the Opinionator blog of the New York Times, Mara Liasson of NPR, Jeffrey Young and Ruth Schulenberg at the Huffington Post, Ron Pollack and Wade Henderson at the Washington Post, Steve Inskeep and Ari Shapiro of NPR, Jonathan Cohn of the New Republic, David Bernstein at the JURIST Forum, and Douglas French at the Christian Science Monitor also have coverage.


  • At Forbes, Daniel Fisher contends that the Court’s unanimous opinions in in Sackett and Mayo “sent strong messages to Congress to clean up murky laws that brought these cases to their doorstep in the first place.”
  • At the ABA Journal, Debra Cassens Weiss looks back at Monday’s arguments in Southern Union Company v. United States.
  • Jack Elliot, Jr. of the Associated Press (via the Biloxi Sun-Herald) reports that a Mississippi death row inmate has asked the Court to stay his execution, which is scheduled for tonight.
  • In an op-ed for the Los Angeles Times, Erwin Chemerinsky and Eric J. Segall argue that the Court should lift its ban on video cameras.
  • Bonnie Goldstein of the Washington Post’s She The People blog looks at Tuesday’s arguments in Miller v. Alabama and Jackson v. Hobbs through the lens of the 1999 Jonesboro, Arkansas school shootings, during which four children were killed by two classmates.

Recommended Citation: Kiran Bhat, Thursday round-up, SCOTUSblog (Mar. 22, 2012, 9:51 AM),