The Court had another busy day yesterday, hearing arguments in two cases and releasing opinions in two others.

In yesterday’s first opinion, Smith v. United States, a unanimous Court (in an opinion by Justice Scalia) held that a defendant bears the burden of proof of withdrawal from a conspiracy.   At the Federal Evidence Review, the Editor’s Blog has an extensive analysis of the opinion, which the Associated Press (via The Huffington Post) also covers.

In yesterday’s other opinion, Already, LLC v. Nike, the Court held that Nike’s covenant not to enforce a trademark against Already’s existing products and any future “colorable imitations” mooted Already’s efforts to void Nike’s mark.  Lyle reports on the opinion for this blog; other coverage comes from Jonathan Stempel of Reuters and Daniel Fisher of Forbes.   [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for this blog in various capacities, served as counsel to the respondent in the case.]

The Court also heard oral argument in two cases yesterday.  In the first argument, Missouri v. McNeely, the Court considered whether the exigent circumstances exception to the Fourth Amendment’s warrant requirement allows police officers to obtain nonconsensual and warrantless blood samples in drunk driving investigations. Lyle reports on the argument for this blog, noting that the Court seemed unlikely to allow such warrantless searches across the board.  Most of the other coverage of the argument agreed with Lyle, with Nina Totenberg of NPR describing the Court as “if anything, more skeptical” of the state’s arguments, David G. Savage of The Los Angeles Times, Jess Bravin of The Wall Street Journal (subscription required), and Mark Sherman of the Associated Press all describing the Court as “wary” of the state’s argument, David G. Savage of The Washington Post predicting that the Court is “unlikely” fully to side with the state, and Adam Liptak of The New York Times noting that “several justices expressed discomfort” with the state’s position.  Other coverage found less agreement on the Court, with Greg Stohr of Bloomberg News writing that the argument produced “no clear consensus,” and Bill Mears of CNN describing the Court as “clearly divided.” Orin Kerr discusses the argument at The Volokh Conspiracy, while additional coverage comes from Steve Gosset of the ACLU’s Blog of Rights.

Yesterday’s other argument was in Maracich v. Spears, in which the Court will consider whether the federal Driver’s Privacy Protection Act prevents the use of information from a state’s department of motor vehicles to solicit additional plaintiffs for a lawsuit against car dealerships in that state.  Kali has links to transcripts of both of yesterday’s arguments on this blog.

Other coverage focuses on the challenge to Section 5 of the Voting Rights Act in Shelby County v. Holder, scheduled for argument in late February.  At Slate, Rick Hasen suggests that minority voters in the South will lose “a key bargaining chip” if the Court strikes down the challenged provision, while Mary Orndoff Troyan of Gannett – via USA Today and  Greenville Online – reports on amicus briefs filed in the case by Alabama and South Carolina, respectively. (h/t Rick Hasen)

Other coverage focuses on Monday’s oral argument in The Standard Fire Insurance Company v. Knowles, in which the Court is considering whether the lead plaintiff in a class action lawsuit can defeat removal to federal court under the Class Action Fairness Act by stipulating to damages below $5 million.  Richard Epstein has posted his thoughts on the case for Ricochet (h/t Howard Bashman), while Michael Bobelian of Forbes also has coverage.


  •  In her Opinionator column for The New York Times, Linda Greenhouse reflects on the “tragedy” of Robert Bork.
  • Abbey Sewell and David Savage of The Los Angeles Times have further coverage of Tuesday’s decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, in which the Court unanimously held that the flow of water from an improved part of a waterway into an unimproved part of the same waterway does not constitute a discharge of pollutant under the Clean Water Act.
  • Asher Price of the Austin American Statesman reports on a complaint filed by the state of Texas against New Mexico and Colorado, seeking the Court’s original jurisdiction in a dispute over the 1938 Rio Grande Compact. (h/t Howard Bashman)
  • In her On The Case blog for Reuters, Alison Frankel observes that with the denial of certiorari in Curtis Circulation Company v. Anderson News, the Court declined an opportunity to halt the Second Circuit’s “pushback” against Bell Atlantic v. Twombly and Ashcroft v. Iqbal, the landmark decisions tightening pleading standards.


Posted in Round-up

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Jan. 10, 2013, 9:42 AM),