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Monday round-up

This weekend’s coverage of the Court concentrated on developments in the constitutional challenge to California’s ban on same-sex marriage, Fisher v. University of Texas at Austin, and a recent decision by the D.C. Circuit that creates a circuit split on whether the Food and Drug Administration can require tobacco companies to include graphic warnings about the dangers of smoking on cigarette packs.

As this blog’s Lyle Denniston reported on Friday, the challengers to Proposition 8, California’s ban on same-sex marriage, filed their brief opposing review of the Ninth Circuit’s decision in the case.  They urge the Court to deny certiorari on the ground that the case is a poor candidate for review.   Additional coverage comes from Dan Levine of Reuters and the Huffington Post’s Scottie Thomaston.

Now that both sides have filed their opening briefs in Fisher v. University of Texas at Austin, commentators have begun to weigh in.  At the Volokh Conspiracy, David Bernstein criticizes an amicus brief filed by the Association of American Law schools; he argues that the brief’s description of a law school admissions process that considers each applicant’s record holistically portrays an idealized process that exists at few if any law schools.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to or work for this blog in various capacities, represents the AALS as an amicus in this case.]  In his column for Bloomberg View, Noah Feldman argues that none of these briefs discuss the true reason our country still needs affirmative action: it would be “shameful madness to recruit and train an elite that included only a handful of blacks and Latinos.”

Finally, the D.C. Circuit recently held that the FDA cannot require tobacco companies to put graphic warnings on cigarette packages without violating the company’s First Amendment rights, creating a circuit split with the Sixth Circuit and therefore the prospect that the issue could reach the Supreme Court.  Coverage comes from The New York Times, CNN, the Wall Street Journal Law Blog, the Associated Press, and Business Insider.


  • UPI’s Michael Kirkland discusses the prospect that the Court could have to rule on a case that would appear to decide the 2012 presidential election and what effect that ruling might have on the Court’s legitimacy.
  • On Friday a cert. petition was filed in Merck & Co., Inc., v. Louisiana Wholesale Drug Co.  The petition asks the Court decide whether antitrust laws allow a brand-name manufacturer to enter into a settlement of patent litigation with a prospective generic manufacturer, when the settlement includes a payment from the brand manufacturer to the generic manufacturer but does not exclude competition beyond the scope of the brand manufacturer’s patent.  Lyle Denniston covered the filing for this blog.  

Recommended Citation: Marissa Miller, Monday round-up, SCOTUSblog (Aug. 27, 2012, 9:48 AM),