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Thursday round-up

The Court heard argument yesterday in Henderson v. United States, in which it considered whether appellate courts reviewing for plain error in criminal cases should consider the state of the law at the time of appeal or at the time of trial.  Robert Barnes has coverage of the argument for The Washington Post, while Adam Liptak also reported on the argument for The New York Times; Kali posted the argument transcript yesterday.

Tomorrow’s Conference, at which the Justices will consider several petitions involving same-sex marriage, continues to dominate coverage of the Court.  Lyle continues his coverage of the issues involved in the cases for this blog, with a summary of the arguments against same-sex marriage.  Other coverage comes from Adam Winkler for the Daily Beast and Melissa Griffin in her column for the San Francisco Examiner.  Erin Fuchs of Business Insider discusses Baker v. Nelson, the  Court’s 1972 decision holding that there was no “substantial federal question” raised by a state denial of marriage rights to same-sex couples, while Courthouse News discusses San Francisco’s preparations for a possible denial of cert. in the challenge to Proposition 8 (which Lyle covered for this blog on Tuesday). 

Other coverage focuses on Monday’s per curiam decision in Nitro-Lift Technologies, LLC v. Howard, in which the Court summarily vacated an Oklahoma Supreme Court decision preventing arbitration in a dispute over the scope of non-competition agreements in employment contracts.  Writing for the Constitutional Accountability Center, Rochelle Bobroff and Simon Lazarus argue that the decision shows that the Court’s  interpretation of the Federal Arbitration Act is “so entrenched that the Court’s liberal/moderate wing no longer sees the value in continued dissent.”


  • In her column for The New York Times, Linda Greenhouse discusses a recent speech by Justice Alito and how to define “the press.”
  • Todd Cooper of the Omaha World-Herald reports on Nebraska’s efforts to comply with Miller v. Alabama, last Term’s decision invalidating mandatory sentences of life without parole for juvenile offenders. (Thanks to Doug Berman for the link.)
  • Christopher Balogh of Reason Magazine contends that the Court’s decision in Kirtsaeng v. John Wiley & Sons, Inc., in which the Court is considering whether copyrighted works made and sold abroad can be imported into the United States without the copyright owner’s permission, might lead to a “a real-life ‘parade of horribles.'”
  • Emily Bazelon of Slate criticizes the Court’s denial of cert. in Delling v. Idaho, a challenge to that state’s lack of an insanity defense.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in that case.]
  • Annie-Rose Strasser of Think Progress reports that Justice Ginsburg floated the idea of an all-female Supreme Court in her address to the Tenth Circuit Bench & Bar Conference in Colorado last Tuesday.
  • Doug Kendall and Emily Phelps of the Constitutional Accountability Center use the story of Lawrence Guyot, a civil rights pioneer who passed away over the weekend, to argue that the Court should uphold Section 5 of the Voting Rights Act when it considers the issue in Shelby County v. Holder.
  • The Associated Press (via The Republic) reports that the boyhood home of Justice Brandeis in Louisville is to have a historical marker placed on it.

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Nov. 29, 2012, 9:54 AM),