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Wednesday round-up

Yesterday the Court heard oral argument in U.S. Airways, Inc. v. McCutchen, in which it considered whether Section 502(a)(3) of the Employee Retirement Income Security Act authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even when the plan’s terms give it an absolute right to full reimbursement.  Kali links to the transcript of the argument here.  And Jonathan Stempel of  Reuters reports that at the argument, the Chief Justice “dressed down an Obama administration lawyer . . . demanding that he be upfront about policy changes from one president to another.”

Coverage of the Court also looked ahead to upcoming cases scheduled for argument.  At Greenwire, Lawrence Hurley previews next Tuesday’s oral argument in Los Angeles County Flood Control District v. Natural Resources Defense Council, in which the Court will consider whether, when water flows from one portion of a U.S. navigable river through an engineered improvement constructed for flood control as part of a municipal separate storm sewer system into a lower portion of the same river, there can be a “discharge” from an “outfall” under the Clean Water Act. And at Concurring Opinions, Ronald Krotoszynski discusses reactions to the recent cert. grant in Shelby County v. Holder, a challenge to the constitutionality of Section 5 of the Voting Rights Act; he opines that “Congress, if it wishes to see [S]ection 5 of the Voting Rights Act sustained as an appropriate use of power to enforce the Fifteenth Amendment, should have taken the Supreme Court’s warning, issued in 2009, more seriously.”

Coverage continued to focus on the Court’s upcoming Conference, at which the Justices are expected to consider several petitions involving same-sex marriage. Greg Stohr of Bloomberg News and Ariane de Vogue of ABC News both report on the pending petitions, while at this blog Lyle Denniston – in the second post of a four-post series – outlines  the arguments in favor of same-sex marriage.  Lyle also reports, along with Howard Mintz of the San Jose Mercury News, that San Francisco officials yesterday told the Ninth Circuit that they want to be able to move quickly to start issuing marriage licenses to same-sex couples if the Court denies review in the Proposition 8 case.  And at ACSblog, Suzanne B. Goldberg suggests that Windsor v. United States, a petition arising from a Second Circuit decision striking down the federal Defense of Marriage Act, “is now looking, to many, like the leading candidate among cert-worthy marriage cases.”


  • The editorial board of The New York Times addresses delays in claims for disability compensation and pensions at the Department of Veterans Affairs and notes that a veteran’s widow “is hoping that the Supreme Court next year will take a case seeking to empower the Court of Appeals for Veterans Claims to close cases on its own rather than remanding so many back to the departmental maze.”
  • The editorial board of the Los Angeles Times criticized the Court’s decision this week to deny a petition filed by an Idaho man who challenged a state law that precluded him from offering 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.]
  • At his Election Law Blog, Rick Hasen links to an article reporting that an Alabama businessman and Republican donor is asking the Supreme Court to strike down certain limits on donations to federal candidates as violating the First Amendment.
  • John Elwood of this blog previews next week’s argument in Decker v. Northwest Environmental Defense Center (consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center), in which the Court will consider whether channeled runoff from forest roads requires an EPA permit.
  • At Sentencing Law and Policy Douglas A. Berman discusses (and provides excerpts from) an amicus brief submitted to the Court in Alleyne v. United States on behalf of the New York Council of Defense Lawyers.

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Nov. 28, 2012, 11:12 AM),