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CVSG (and Hold) watch: June wrap-up

John Elwood reviews Friday’s cases.

When your last hand-down day is as dramatic as last Thursday was, anything could seem like an anticlimax.  But the offerings from this last Conference would seem anticlimactic after the keynote speech at an accounting seminar.

Let’s start as usual by examining the fate of last week’s relists.  Two of last week’s first-timers bit the dust.  After rejecting the Solicitor General’s advice three times on Monday, the SG finally got his propers in Corboy v. Louie, 11-336, as the Court took his advice and denied cert. in a case involving a tax break available only to native Hawaiians.  A straightforward use of the widely accepted taxing power to encourage people to become native Hawaiians.  Then there’s Williams v. Wetzel, 11-7882, a capital case out of the Third Circuit concerning the propriety of a federal court denying habeas relief based on evidence considered for the first time in that court.

The Cinderella story from last week’s relists is Retractable Technologies, Inc. v. Becton, Dickinson & Co., 11-1154.  In that patent case, the Court called for the views of the Solicitor General.  As explained last week, Retractable seeks review of a Federal Circuit decision construing the term “body” in a patent claim.  Its petition asks (1) whether a court may depart from the “plain and ordinary meaning” of a term in a patent claim based on language in the patent specification; and (2) whether claim construction, including underlying factual issues, is a purely legal question subject to de novo review on appeal.  I understand that the Federal Circuit has long wrestled with whether to give deference to lower courts on matters of claim construction, so this case is definitely worth watching for when the SG files his brief.  The Court’s lone hold from this week was the final new relist from last week—the conditional cross-petition in Becton, Dickinson & Co. v. Retractable Technologies, Inc., 11-1278.  I’m a bit perplexed why the Justices didn’t just get the SG’s thoughts on Becton’s cross-petition while they were at it, but that’s probably why I don’t rate my own bobblehead.


Finally, nine of last week’s seventeen-some relists implicating Williams v. Illinois were GVR’d.  Looks like the rest of the petitions simply were denied.

The Justices had occasion to revisit some of our favorite holds from the not-so-distant past.  Back in early June when the Court held the “wardrobe malfunction” spectacular of FCC v. CBS, 11-240, for FCC v. Fox, 10-1293, I wondered how the Third Circuit could have concluded that the FCC’s adoption of its new broadcast-indecency regime violated the Administrative Procedure Act when that rationale appeared to have been foreclosed by the 2009 installment of FCC v. Fox.  Well, today I received vindication, of sorts — and when you get to be my age, vindication-of-sorts is the best you can hope for:  while the Court denied cert., the Chief at least ribbed the Third Circuit, saying he was “not so sure” about its conclusion.  Justice Ginsburg also filed her own opinionette suggesting that the FCC might “reconsider its indecency policy,” in case the FCC didn’t take the hint from her concurrence in last week’s FCC v. Fox suggesting that Pacifica should be overruled.   CBS has pledged to use the money it saves from not paying the fine to buy bulky turtlenecks and sensible shoes for future halftime performers.

The petitioner in the other remaining hold from the same Conference likewise whiffed:  Henry Ford Health Center v. HHS, 11-975, asked whether, pursuant to the Affordable Care Act, the Department of Health and Human Services can determine that, retroactive to 1983, time doctors spend conducting research does not count toward a hospital’s “resident count,” which is used to determine Medicare paymentsThe case seemed like a routine hold to avoid tipping the Court’s hand in the health care cases, and as Thursday’s decision left the Affordable Care Act largely intact, the case had come to the end of the line.

Speaking of the end of the line, this is ours.  Assuming there isn’t a large margin of error in the 12.21.12 end-of-the-world prophecy, I’ll be back in the fall with a shiny new relist (and hold) watch that is every bit as entertaining as this one.  Until then, best of luck to the Justices with their summer plans, and I hope you have better hobbies than this during the warm months.

Thanks to Victoria Galvez and Eric White for compiling and drafting this update.

Recommended Citation: John Elwood, CVSG (and Hold) watch: June wrap-up, SCOTUSblog (Jul. 5, 2012, 12:17 PM),