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Tuesday round-up

Yesterday’s coverage of the Court focused on this week’s oral arguments, Justice Thomas’s comments at yesterday’s oral argument, Justice Sotomayor’s memoir, and the Court’s denial of certiorari in two notable cases.

Yesterday, the Court heard oral arguments in two cases.  Writing for this blog, Lyle Denniston covers the argument in Alleyne v. United States, in which the Court is considering whether the Sixth Amendment requires a jury, rather than a judge, to find facts triggering a mandatory minimum sentence. Lyle reports that the Court’s inquiry gave way to a combative discussion among the Justices, who are divided over the meaning of their decision in Apprendi v. New Jersey, holding that facts increasing the defendant’s statutory maximum sentence must be found by a jury. Additional coverage includes a report by Jonathan Stempel of Reuters and the Associated Press. Most of the coverage of yesterday’s oral argument in Boyer v. Louisiana, a case dealing with an indigent defendant’s right to a speedy trial, focused on Justice Thomas’s apparent joke about his alma mater, Yale Law School, during oral arguments, which ended nearly seven years of silence on the bench. Coverage comes from Tom Goldstein at this blog, Greg Stohr of Bloomberg News, Jess Bravin of The Wall Street Journal, Robert Barnes of The Washington Post, Adam Liptak of The New York Times, Jonathan Stempel of Reuters, David G. Savage of the Los Angeles Times, Tony Mauro of The BLT, and Carlo Dellaverson of NBC News. Pertaining to the merits of the case, the editorial board of The New York Times argues that the outcome of the case “could determine whether [the right to the assistance of counsel] remains robust or a state can dilute it by refusing to pay for a lawyer in a timely fashion.”

Today the Court will hear oral arguments in two cases. In Koontz v. St. Johns River Water Management District, the Court is considering whether the Takings Clause limits the government’s power to approve a permit to develop wetlands on the condition that the applicant contribute funds to restoring wetlands in a nearby, state-owned wildlife preserve. At this blog, Lyle Denniston previews the case. Additional coverage includes reports by Kevin Spear of the Orlando Sentinel (hat tip:  How Appealing) and Barbara Liston of Reuters, as well as a background piece by Alan Garfield in Delaware Online. In the National Law Journal (subscription required), Doug Kendall argues that the core question in the case is “whether landowners have an absolute right to use their property as they see fit, or whether the government can impose limits designed to mitigate the cost of the development to the community at large” and that the Court’s resolution of this case will “reveal a great deal about how the Court under the leadership of Justice John Roberts, Jr. will strike this balance.” Together with co-author Tom Donnelly, Kendall has published two additional op-eds on the case:  at the Constitutional Accountability Center, they argue that Koontz is distorting the facts and law to support a ruling that would undercut efforts to protect the environment, while at the Huffington Post they compare the Takings Clause claims in Koontz and Starr International v. Federal Reserve, in which AIG shareholders are suing the government because, they allege, the conditions attached to the government’s bailout of the company amounted to an unconstitutional taking of their private property.

In Levin v. United States, the Court will consider whether a civilian may bring a battery claim against the United States for injuries allegedly caused by military medical personnel during the performance of their duties, or whether such claims barred by sovereign immunity. At this blog, Kevin Amer previews the case.

Other coverage focused on Justice Sotomayor’s memoir, My Beloved World, which was released today. This morning, NPR is airing the second part of a four-part series, in which Nina Totenberg sits down with Justice Sotomayor to talk about the book, which recounts her family, school life, and career. NPR’s coverage also includes exclusive photos from Justice Sotomayor’s personal collection and a book review by Jason Farago. Other coverage includes reports by Jess Bravin of The Wall Street Journal, Martha Neil of the ABA Journal, and Bill Mears of CNN.

Finally, coverage also focused on the Court’s denial of certiorari in two notable cases. In Republican National Committee v. Democratic National Committee, the Court declined to review a request by the Republican Party to dissolve a thirty-year-old decree designed to prevent voter intimidation at polling stations. Lyle reported on the story for this blog, with other coverage coming from Jonathan Stempel of Reuters, David G. Savage of the Los Angeles Times, the Associated Press, Tal Kopan and Josh Gerstein of Politico, and Warren Richey of the Christian Science Monitor. As Lyle reports on this blog, the Court also denied review of a petition filed by the governor of Rhode Island, who was seeking to decline to hand over a state inmate for federal prosecution, because the state opposes capital punishment that may be imposed in the case.  That question arose in Chafee v. United States and Pleau v. United States. [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the co-counsel to the petitioner in Pleau.] Michelle Smith of the Associated Press also reports on the Court’s denial of certiorari in Pleau.


  • Bloomberg Law has posted a ninety-second video that breaks down the issues in the same-sex marriage cases.
  • Balkinization has two posts from the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries at UCLA School of Law. In his first post, Jack Balkin argues that the Court’s decisions protecting sexual freedom are grounded in the text of the Constitution, but “unwise Supreme Court decisions have obscured their connections.” In the second post, Louise Melling focuses on the lawsuits by various institutions across the country challenging the requirement that they include prescription birth control in the insurance provided to their employees as violating their religious freedom.
  • In an op-ed for the Centre Daily Times, Doug Kendall and Tom Donnelly discuss how Steven Spielberg’s film Lincoln, which showcases the “forgotten heroes” of the Reconstruction era in passing the Thirteenth, Fourteenth, and Fifteenth Amendments, should serve as a reminder to the Court as it considers several civil rights issues this term.
  • Writing for this blog, Lyle discusses the Court’s denial in Hollingsworth v. Perry of a request by the backers of California’s “Proposition 8” – which banned same-sex marriage in the state – to file an oversized brief.
  • Also writing for this blog, Gregory Massing analyzes the Court’s opinion in Smith v. United States, in which the Court unanimously held that a defendant charged with criminal conspiracy must carry the burden of proving that he withdrew from the conspiracy.
  • At the First Amendment Center, Tony Mauro covered the Court’s grant of certiorari in the case of Agency for International Development v. Alliance for Open Society International.
  • Jacob Gershman of The Wall Street Journal, Alison Frankel of Reuters, and Nathan Hale of Law360 (subscription required) (hat tip: How Appealing) report that the U.S. government has asked the Court to decide whether Congress’s decision to block cost-of-living increases for federal judges violates the Compensation Clause of the Constitution.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Jan. 15, 2013, 9:37 AM),