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Friday round-up

The Court announced four opinions in argued cases yesterday; as it (almost) goes without saying, the Court did not announce its decision in the challenges to the Affordable Care Act.  NPR covered the Court’s non-decision, while Kali posted a round-up of initial coverage of yesterday’s decisions.  Monday is the last day on which the Justices are scheduled to release opinions, but it is likely that they will add at least one additional day (probably Wednesday or Thursday) next week.  The New York Times, the Associated Press, and the Blog of the Legal Times all report on the Court’s possible schedule for next week.

In Federal Communications Commission v. Fox Television Stations, Inc., the Court held that because the FCC had failed to provide Fox or ABC with “fair notice” that “fleeting expletives and momentary nudity could be found actionably indecent,” its indecency standards were too vague and could not be enforced against the broadcasts at issue.  Coverage comes from Fox, the Los Angeles Times, the Associated Press, the New York Daily News, Forbes (here and here), The Hollywood Reporter, Reuters, the Seattle Post-Intelligencer, the Los Angeles Times, Variety, New York Magazine, The New Yorker, Ars Technica, PBS Newshour, the ABA Journal, Hollywood, the Washington Times, The Atlantic Wire, Gawker, Courthouse News Service, Slate, Jezebel, Comedy Central, BBC News, Constitutional Law Prof Blog, and The American Prospect.

Other coverage of and commentary on the decision in Fox came from Edward Wyatt of The New York Times, who reports that the Court’s decision, coupled with current FCC regulations, “leaves broadcasters with little real grasp of what is allowed and what is not.”  The editorial board of The Christian Science Monitor praised the Court’s decision, which in its view “struck the right balance between vice on TV and the vice of legal vagueness,” while the editorial board of The New York Times urged the FCC to “immediately” take the Court’s suggestion to “modify its current indecency policy.”  And the editorial board of the Chicago Tribune weighs in on the decision as well, agreeing that “the FCC should stop trying to micromanage its slice of the broadcast business.”  ThinkProgress, the Wall Street Journal Law Blog, David Orentlicher of Concurring Opinions, Howard Wasserman of PrawfsBlawg, and Tony Perkins (in USA Today) also have commentary on the decision.

In Knox v. SEIU, the Court held that employees who decline to join their public-sector union have a First Amendment right not to be compelled, without notice and the opportunity to object, to pay special assessments for political activities.  Coverage of Knox comes from NPR’s Nina Totenberg, MSNBC, Reuters, the Los Angeles Times (here and here), Financial Times, Forbes, ThinkProgress, the Sacramento Bee, the National Review Online, ABA Journal, UPI, and Courthouse News Service.  Constitutional Law Prof Blog (here and here), Matt Bodie at PrawfsBlawg, National Review Online (here and here), and the San Francisco Bay Guardian all have commentary on the decision.

In Southern Union Co. v. United States, the Court held (in an opinion by Justice Sotomayor) that a jury must find beyond a reasonable doubt any fact that increases the maximum fine for a criminal defendant.  Forbes, Reuters, Courthouse News Service, and Greenwire cover the opinion.  White Collar Crime Prof Blog and the Sentencing Law and Policy Blog offer commentary.

In Dorsey v. United States, the Court held (in an opinion by Justice Breyer) that the Fair Sentencing Act – which reduced the disparities in the length of sentences for crack and powder cocaine offenses – applies to defendants whose crack cocaine offenses occurred before the Act went into effect but were sentenced after the Act’s effective date.  Coverage of Dorsey comes from the Washington Post, the Associated Press (via the Washington Post), the Chicago Sun-Times, Politic365, the Courthouse News Service, the Drug War Chronicle, and the (Columbus) Republic.  At the Sentencing Law and Policy Blog, Doug Berman suggests that the opinion appears to be a victory for Justice Scalia in the ongoing fight over use of legislative history; the ACLU also has commentary on the decision.

Several commentators assess the overall impact of yesterday’s four decisions.  In The Nation, David Cole argues that, although yesterday’s decisions are “a mixed bag, politically,” “one thing is clear—this is not a shy or minimalist Court.”  And in The American Prospect, Scott Lemieux cites the closely divided Dorsey and Knox rulings as evidence that “the Supreme Court should be a bigger issue in the presidential election than it currently is.”

Turning to the Affordable Care Act cases, speculation on the outcome continues to dominate coverage.  Bloomberg reports on a poll of constitutional law professors, USA Today reports on a poll of the general public, and the Wonkblog reports on a poll of former Supreme Court clerks.  The Note (at ABC) reports that Nancy Pelosi remains confident that the Court will uphold the law, while Politico reports that the law’s opponents are preparing to celebrate.  Ariane de Vogue of ABC outlines the issues in the case and the effect that the Court’s decision could have on ordinary citizens, while CNBC discusses its possible effects on small business owners.  Politico reports on interviews with Randy Barnett and Ron Pollack about the implications of a decision invalidating the ACA.  Dianna Ransom of Entrepreneur and George Zornick of The Nation describe possible post-decision scenarios; the Washington Post discusses potential long-term political fallout from the Court’s ruling.  Uwe Reinhardt offers an economist’s take on anticipation of the opinion in The New York Times, Michael Millenson of Forbes compares the health care cases to Brown v. Board of Education, and David Lazarus argues in his column for the Los Angeles Times that a decision invalidating the mandate while leaving the insurance non-discrimination provisions standing would make U.S. health care worse.  Finally, in The New Republic, Emily Bass and Einer Elhauge contend that “even the most conservative Supreme Court Justices have already declared mandates constitutional.”


  • The New Yorker parodies the business of betting on opinion outcomes; it puts at 7:1 the odds that “[the] Court outlaws life without parole for offenders who have purchased health insurance as long as they are under fourteen and haven’t immigrated to Arizona within the past twenty-four hours.”
  • For this blog, Lyle reports that the Bipartisan Legal Advisory Group of the House of Representatives will ask the Court to review the recent First Circuit opinion invalidating Section 3 of the Defense of Marriage Act; CNN and The Advocate also provide coverage.
  • The Tucson Citizen reports on anticipation of the Court’s opinion in Arizona v. United States (the S.B. 1070 case).
  • Looking to next Term, Roger Clegg and Joshua Thompson argue in The Christian Science Monitor that the Court should rule against affirmative action in Fisher v. University of Texas at Austin.
  • Linda Campbell argues in the Columbia Dispatch that “the Court should loosen up on recording rules.”
  • In The New Republic, Jack Goldsmith explains why the Court leaks less than the CIA.
  • Matt Lewis of The Daily Caller suggests that President Obama might learn lessons from FDR about dealing with a loss at the Court.
  • At ACSblog, Alan Morrison discusses a liberal/conservative switch in literalist approaches to statutory interpretation in Christopher v. SmithKline Beecham Corp.  [Disclosure:  The firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represented the petitioners in Christopher.]
  • In the ABA Journal, Mark Walsh discusses reporters’ strategies for covering opinion days at the Court.
  • At the National Review Online’s Bench Memos blog, Ammon Simon outlines (and seeks to rebut) the criticism of the Court that he expects if the Court strikes down part or all of the ACA.
  • In the Washington Post, Ezra Klein argues that “of course the Supreme Court is political.”
  • At Bloomberg View, Stephen L. Carter suggests that everyone should “lighten up about the Supreme Court.”
  • At Slate, Jed Shugerman proposes a constitutional amendment that would require the vote of six Justices to invalidate an Act of Congress.
  • At the Volokh Conspiracy, Orin Kerr offers preliminary thoughts on Florida v. Jardines, a Fourth Amendment case about use of drug detection dogs that will be argued next Term.
  • The Yale Law Journal Online’s “Summary Judgment” series has posted commentary on Lafler v. Cooper and Missouri v. Frye — cases finding ineffective assistance of counsel in plea bargaining — by Judge Gerald Lynch, Judge Jed Rakoff, Nancy King, and Stephanos Bibas.

Recommended Citation: Joshua Matz, Friday round-up, SCOTUSblog (Jun. 22, 2012, 10:50 AM),