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Friday round-up

Yesterday the opponents of California’s Proposition 8 filed their brief on the merits in Hollingsworth v. Perry.  Lyle has a summary of the briefs for this blog, describing the brief of the two couples challenging the state’s ban on same-sex marriage as “a bold attempt to portray the constitutional idea of marriage equality as a victim of homophobia, and to persuade the Court not to settle for a California-only decision, or for one that moved gays and lesbians only a bit closer to marriage, but rather to give them a right to wed as fully as any other couple has, regardless of race, sex, or sexual orientation.”  David Savage of the Los Angeles Times, Mark Sherman of the Associated Press, Chris Geidner at Buzzfeed, and Ryan Reilly at The Huffington Post also have coverage of the brief.

The United States is scheduled to file its brief on the merits today in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act.  Lyle will provide coverage of that brief once it is available.

Other coverage of the Supreme Court focused on the nine opinions released earlier this week.  In Gunn v. Minton, the Court held that a federal statute granting federal courts exclusive jurisdiction over cases “arising under” any patent statute did not deprive state courts of subject matter jurisdiction over state law claims that alleged legal malpractice in patent law cases.  Additional coverage of Gunn and its implications comes from Kevin Noonan at Patent Docs, the Blog of Legal Times, and the Constitutional Law Prof Blog

JURIST has coverage (here) of the Court’s opinion in Henderson v. United States, in which the Court held that an error qualifies as “plain” within the meaning of Federal Rule of Civil Procedure 52(b) as long as it was plain at the time of appellate review, even if it was not settled at the time of the trial; it also covers the decision (here)  in Johnson v. Williams, in which the Court held that when a state court ruling rejecting some of a defendant’s claims does not expressly address a federal claim, a federal habeas court must nevertheless presume that such a federal claim was adjudicated on the merits.

For this blog, Kevin Johnson covers the opinion in Chaidez v. United States, in which the Court held that Padilla v. Kentucky, a 2010 decision holding that the failure of criminal defense attorneys to inform their defendants of the immigration consequences of a criminal conviction may constitute an ineffective assistance of counsel claim under the Sixth Amendment, does not apply retroactively to cases already final on direct review.  [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 Chaidez.]

And at the Reason Foundation, Sasha Volokh analyzes the Court’s opinion in FTC v. Phoebe Putney Health System, in which the Court held that the “state action” doctrine in federal antitrust law, which provides immunity from those laws to non-state actors implementing a state’s regulatory program, did not apply when the state of Georgia had not clearly established a policy permitting its hospitals to make acquisitions in a way that substantially decreased competition.

Coverage of this week’s oral arguments also continued.  Ronald Mann of this blog and Lawrence Hurley of Reuters both report on Tuesday’s oral argument in Bowman v. Monsanto, in which the Court is considering the application of the doctrine of patent exhaustion to self-replicating technologies.  JURIST has coverage of Wednesday’s oral arguments in McBurney v. Young, in which the Court is considering whether the Dormant Commerce Clause and Privileges and Immunities Clause permit a state to offer lesser rights of access to its public records to citizens of other states than it offers to citizens of its own state, and PPL Corporation v. Commissioner of Internal Revenue, in which the Court is considering whether and when U.S. corporations should receive tax credits for foreign taxes already paid.  Allison Christians also reports on the oral argument in PPL Corporation for this blog.

Other coverage looked ahead to the cases scheduled for argument later this Term, with Shelby County v. Holder, the challenge to Section 5 of the Voting Rights Act, garnering the most coverage.  Sahil Kapur of Talking Points Memo considers the consequences if the Act is invalidated.  At The Huffington Post, Rick Valelly looks at the Act’s historical backdrop and argues that the Court must remain cognizant of the “sensitivity to history that informed the renewal of the Voting Rights Act just six and a half years ago.”  Greg Stohr of Bloomberg looks ahead to next week’s oral argument in Maryland v. King, in which the Court will consider whether the Fourth Amendment permits states to collect and analyze DNA from people who have been arrested and charged with serious crimes, but not yet convicted.  And Alison Frankel, at her On the Case blog for Thomson Reuters, discusses the amici involved in Mutual Pharmaceutical Co v. Bartlett, in which the Court will consider whether federal law preempts state law design-defect claims aimed at generic pharmaceutical products.

Tuesday’s grant of certiorari in McCutcheon v. Federal Election Commission, involving a challenge to the overall limit that a single donor could give to political campaigns over a two-year election cycle, also continues to garner coverage.  Daniel Fisher at Forbes suggests that the Court “took up McCutcheon to reaffirm [its] support for campaign contribution limits,” rather than to strike down such limits.  Writing at Slate, Rick Hasen discusses the case in the context of the Court’s recent campaign-finance decisions, urging campaign-finance reformers “not to give up hope.”


  • For this blog, Jordan Steiker previews next week’s oral argument in McQuiggin v. Perkins, in which the Court will consider whether a claim of actual innocence under AEDPA permits an exception to its timely filing and reasonable diligence procedural requirements.  Kent Scheidegger also previews the case at Crime & Consequences.
  • At the New York Review of Books, Daniel Kevles emphasizes the unique procedural history behind Association for Molecular Pathology v. Myriad Genetics, in which the Court will consider whether human genes are patentable.
  • At the PBS NewsHour (here and here), Gwen Ifill interviews Justice Sotomayor, who spoke about her new memoir and her time thus far on the Court.
  • At The Atlantic, Conor Friedersdorf summarizes Justice Thomas’s visit to Harvard Law School earlier this month, including a public conversation between the Justice and Dean Martha Minow.
  • In the wake of a recent decision by the D.C. Circuit, Neal Goldfarb of LAWnLinguistics parses a provision of the Constitution that many people believe the Justices will be interpreting soon:  the Recess Appointments Clause.

Recommended Citation: Rachel Sachs, Friday round-up, SCOTUSblog (Feb. 22, 2013, 9:49 AM),