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Tuesday round-up

Yesterday, the Court issued one opinion in an argued case and one summary ruling.  It also granted certiorari in two new cases and denied, among others, all seven of the Guantanamo Bay detainee cases.

In Elgin v. Department of Treasury, the Court (in an opinion by Justice Thomas) held that the Civil Service Reform Act, which established a “comprehensive system for reviewing personnel action taken against federal employees,” provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional. Justice Alito filed a dissenting opinion, which was joined by Justices Ginsburg and Kagan.  Courthouse News Service, the ABA Journal, CBS News, the Associated Press (via the Washington Post), and Hispanic Business all provide coverage.  At the Volokh Conspiracy, Jonathan Adler remarks on the “unusual” lineup of votes.

In a summary opinion in Parker v. Matthews, the Court held that the decision of Sixth Circuit, which set aside two twenty-nine-year-old murder convictions, is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”  The Associated Press, Sentencing Law and Policy Blog, and the ABA Journal have coverage of the opinion.  At Balkinization, Mark Tushnet criticizes the Court’s “analysis of the prosecutor’s rhetoric” as “overly simple,” while Jonathan Adler of the Volokh Conspiracy and Ed Whelan of National Review Online both note that the Court has reversed the Sixth Circuit in habeas cases several times in the past few years.

The Court also granted cert. in two cases; Jurist reports on both grants. In Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, the Court will consider the interpretation of Securities and Exchange Rule 10b-5 for misrepresentation cases; Bloomberg Businessweek, Dow Jones Newswires (via Fox Business), Courthouse News Service, the Ventura County Star, and Reuters have coverage.  In Evans v. Michigan, the Court will consider whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact.

Most coverage of the Court focused on the denial of cert. in the detainee cases.  Lyle reports on the denials for this blog; other coverage comes from Laurie Asseo of Bloomberg Businessweek, Nina Totenberg and Ali Frick of NPR, Adam Liptak of The New York Times, Bill Mears of CNN, David G. Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Jess Bravin of the Wall Street Journal, Robert Barnes of the Washington Post, Wells Bennett of Lawfare, the Associated Press (via the San Francisco Chronicle), Mike Sacks of the Huffington Post, and James Vicini of Reuters.  At Constitution Daily, Lyle discusses the denials in more detail, concluding that “[i]t now appears clear that those at Guantanamo will gain no new legal rights from the Court, and thus no added hope for release at any point unless the Pentagon and the State Department, on their own, decide to transfer any individual out of the prison facility.”

In other commentary on the denials, Gerard Magliocca of Balkinization summarizes the message of the denials as “Supreme Court to Gitmo Detainees: Drop Dead.”  And at Lawfare, Steve Vladeck and Benjamin Wittes also discuss the significance of the denials, as does Alex Brown at ThinkProgress.  Finally, the editorial board of the New York Sun weighs in in favor of the denials, noting that “in a time of war, the calculus is different and the burden is shifted.”

The Court also denied cert. in another high-profile petition arising out of the war on terror:  the case of U.S. citizen Jose Padilla, who sought to sue former Secretary of Defense Donald Rumsfeld and other high-ranking officials for his alleged torture in a Navy brig.  In addition to Lyle’s coverage of that case, other coverage came from  Bloomberg Businessweek, the ABA Journal, the Christian Science Monitor, Reuters, and the Associated Press (via the Washington Post).  For this blog, Lyle covered the other remaining high-profile cert. denials.

On the Affordable Care Act front, NPR’s Nina Totenberg has a lengthy report on the Court’s Commerce Clause jurisprudence and what the decision in the health care cases might mean for it. At the Consumer Law and Policy Blog, Brian Wolfman has an audio interview with Harvard Law School Professor I. Glenn Cohen intended to allow readers to “acquaint (or reacquaint) themselves with the basic arguments”; in a second post, Wolfman discusses a Washington Post article reporting that the nation’s largest health insurer, United Healthcare, has indicated that it will retain some of the Affordable Care Act’s important benefits even if the Court were to hold that the Act is unconstitutional.  At Concurring Opinions, Nicole Huberfeld argues that health care may not provide an optimal “vehicle for constitutional change.”

With the Court scheduled to consider the Montana campaign finance case, American Tradition Partnership, Inc. v. Bullock, at its Conference on Thursday, coverage and commentary on the case continue apace.  Adam Liptak of the New York Times considers “how the court will reverse the Montana decision”; at Concurring Opinions, Gerard Magliocca reacts to Liptak’s article.  And in the National Journal, Alex Roarty concludes that if – as expected – the Court reverses the decision of the Montana Supreme Court, it will be “a blow to federalism [that conservatives] can stomach.”


  • For this blog, Lyle reports that principal deputy U.S. Solicitor General Sri Srinivasan was nominated by President Obama on Monday to a seat on the U.S. Court of Appeals for the D.C. Circuit; at The New Yorker, Jeffrey Toobin reports on an interview with Justice O’Connor about the nomination of Srinivasan, her former clerk.
  • At Slate, Dahlia Lithwick discusses the prospect that, “when enough justices believe that they themselves are being assailed and personally threatened by the press, the impact can come to affect legal doctrine.”
  • Alison Frankel of Reuters reports on a brief filed in the Alien Tort Statute case of Kiobel v. Royal Dutch Petroleum – set for re-argument next Term – on behalf of the victims of alleged state-sponsored violence on an oil rig in Nigeria.

Recommended Citation: Joshua Matz, Tuesday round-up, SCOTUSblog (Jun. 12, 2012, 10:08 AM),