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Tuesday round-up

Yesterday’s Court coverage centered on the absence of orders on ten petitions involving same-sex marriage. Lyle Denniston of this blog has full coverage of yesterday morning’s orders, which also included the Court’s call for the views of the Solicitor General on Law v. Siegel, a case about a bankruptcy trustee’s ability to impose a surcharge that is levied against property that would otherwise be exempt. Other coverage of yesterday’s absence of action comes from David G. Savage, Matt Stevens, and Jessica Garrison of the Los Angeles Times, Terry Baynes of Reuters, Howard Mintz of the San Jose Mercury News, and UPI. And at the ABA Journal, Erwin Chemerinsky contends that the Court is “highly likely” to accept a same-sex marriage case this Term. The Justices will next consider the petitions at their Conference on Friday, December 7.

Coverage also focused on the Court’s denial of review in two other cases of interest. Terry Baynes of Reuters reports first that the Court denied a petition seeking review of a decision by the U.S. Court of Appeals for the Sixth Circuit that allowed a suit by GM workers against State Street Corporation over lost pension money to proceed, and second that the Court also declined to review the case of a Kentucky lawyer convicted of defrauding clients out of money paid in a settlement with the manufacturer of the drug fen-phen.

The Court heard arguments in two cases yesterday. In Genesis HealthCare Corp. v. Symczyk, the Court is considering whether a workers’ pay case can continue if there is an offer to provide everything that the plaintiff sought, but she also purported to bring her lawsuit on behalf of similarly situated workers. Lyle Denniston covers the arguments for this blog. And in Decker v. Northwest Environmental Defense Center, the Court is considering whether channeling stormwater through ditches and culverts on logging roads requires a permit under the Clean Water Act. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the respondent in the latter case.] Adam Liptak of The New York Times, Robert Barnes of The Washington Post, Mark Sherman of the Associated Press, and Lawrence Hurley of Greenwire also have coverage of the argument in Decker. Transcripts from both arguments are available here.

The Court will hear arguments in two cases this morning. At this blog, Lyle Denniston previews today’s arguments in Sebelius v. Auburn Regional Medical Center, in which the Court will consider whether a statutory time limit for appealing Medicare reimbursements is subject to equitable tolling. And Kevin Russell of SCOTUSblog previews Los Angeles County Flood Control District v. Natural Resources Defense Council, in which the Court will consider whether the flow of water through certain concrete channels created as part of a stormwater control system can support findings of “discharge” or “outfall” under the Clean Water Act.

Finally, in the wake of the Court’s cert. grant last month in Shelby County v. Holder, the debate on the continuing necessity of the Voting Rights Act’s preclearance requirement continues.  Doug Kendall of the Constitutional Accountability Center responds to James Taranto of The Wall Street Journal, arguing that the Voting Rights Act remains relevant today. And NPR features a discussion between scholars on both sides of the debate.


  • The Associated Press (via the Columbus (Ind.) Republic) reports that Richard Dale Stokely, who is scheduled to be executed in Arizona on Wednesday, has asked the Court to stay his execution.
  • Lyle Denniston of this blog reports that the government has switched positions and will no longer defend the Third Circuit’s opinion in Millbrook v. United States, a case involving the waiver of sovereign immunity for the intentional torts of prison guards.
  • At the Huffington Post, Jackie Gardina warns the Court against succumbing to the “states’ right trap” in interpreting Section 3 of the federal Defense of Marriage Act.
  • In an op-ed for The Washington Times, Ilya Shapiro and Timothy Sandefur argue that the Justices should rule for the petitioner in Koontz v. St. Johns River Water Management District, a land-use permitting case.
  • Debra Cassens Weiss of the ABA Journal and Alison Frankel of Reuters add to coverage from yesterday’s round-up of the Court’s Friday grant in Association for Molecular Pathology v. Myriad Genetics, in which the Justices will consider whether the extraction of a human gene from the body for research can be patented.
  • Kenneth Jost of Jost on Justice argues that the Court’s “timidity in confronting” partisan gerrymandering has contributed to distortions of the democratic process.
  • At the Alliance for Justice’s Justice Watch blog, Michael Foreman comments on the “supervisor” liability case argued last Monday, Vance v. Ball State University
  • GOVERNINGWorks has the second part of an interview with Professor Akhil Reed Amar on the topic of the “Constitution’s invitation to understand it and how this relates to issues like privacy and the Supreme Court’s review of same-sex marriage” (video).
  • Howard Fischer of Capitol Media Services (via the Arizona Daily Star) reports on another one of the same-sex marriage cases that the Court will consider at its Friday Conference:  Brewer v. Diaz, a challenge to an Arizona law that denies benefits to the domestic partners of state employees – including same-sex partners, who under state law cannot qualify for the benefits by marrying their partners.
  • Kent Scheidegger of Crime and Consequences critiques Justice Sotomayor’s dissent from the Court’s denial of cert. in Hodge v. Kentucky, a death penalty case in which mitigating evidence was not proffered.
  • USA Today’s Richard Wolf answers a reader question about the recusal of Justices (video).

Recommended Citation: Kiran Bhat, Tuesday round-up, SCOTUSblog (Dec. 4, 2012, 9:33 AM),