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Tuesday round-up

Today the Court resumes hearing oral arguments, and yesterday’s coverage focuses on the cases slated for argument over the next two weeks.

This morning, the Court will hear arguments in two cases. First, in Bowman v. Monsanto, the Court considers the application of the doctrine of patent exhaustion to self-replicating technologies. At this blog, Ronald Mann previews the case and concludes that although “it is surely not easy to predict the doctrinal path that the Court will follow, . . . by far the most likely outcome is one in which the Federal Circuit’s ruling in favor of Monsanto is affirmed.” Additional coverage of the case comes from Dan Charles of NPR (audio), Mark Sherman of the Associated Press, and Adam Cohen at TIME.

Second, Millbrook v. United States will address whether the federal government has sovereign immunity from lawsuits for intentional wrongful acts by prison guards acting as law enforcement officials. Coverage comes from Nina Totenberg at NPR (audio).

At this blog, Lyle Denniston previews McBurney v. Young, a case scheduled for argument tomorrow in which the Court will consider challenges under the Privileges and Immunities Clause and the dormant Commerce Clause to a state law restricting access to public records by out-of-state residents.

Other coverage focuses on cases scheduled for oral argument next week. On February 26, the Court will hear Maryland v. King, in which it will consider whether the Fourth Amendment allows states to collect and analyze DNA of people arrested for, but not yet convicted of, certain felonies. In an academic highlight for this blog, Amanda Frost summarizes contributions by Professor David Kaye, the main author of an amicus brief submitted on behalf of ten scientists which supports neither side but rather “seeks to inform the Court of the possible medical and social significance of the DNA stored in law enforcement databases.” Also at this blog, Orin Kerr observes that it is difficult to predict whether the Court will choose to apply a per se warrant requirement or a reasonableness balancing test, but that “breaking down the conduct into two distinct searches could allow the Court to craft a narrower rule that extends different privacy protections to different kinds of DNA testing from the same sample.”

On February 27, the Court will hear a challenge to Section 5 of the Voting Rights Act in Shelby County v. Holder. Coverage includes reports by Adam Liptak of The New York Times and Sidney Rosdeitcher and James J. Beha at the Brennan Center for Justice. The American Constitution Society has posted the video from last week’s event: A Look at Shelby County: The Future of the Voting Rights Act and an issue brief by David H. Gans and Elizabeth B. Wydra, in which they argue that “the preclearance requirement contained in Section 5 of the Voting Rights Act seeks to enforce the core purpose of the Fifteenth Amendment, and the nearly unanimous, bipartisan decision of Congress to re-authorize it falls squarely within Congress’s broad power to enforce the Fifteenth Amendment.”


  • On WAMU’s Kojo Nnamdi show (audio), reporters Adam Liptak and Joan Biskupic discuss the cases pending before the Court this term and how covering the Court has evolved over the past few decades.
  • Adam Liptak of The New York Times and Mike Dorf at Dorf on Law write about Justice Sotomayor’s change of heart regarding whether to allow video coverage of Supreme Court proceedings.
  • In an op-ed for The Chronicle of Higher Education, Dawinder S. Sidhu raises two concerns with the “critical mass” argument invoked to justify the affirmative action program under challenge in Fisher v. University of Texas.
  • At the Volokh Conspiracy, Sasha Volokh posts a second piece discussing FTC v. Phoebe Putney Health System, a case argued last November in which the Court is considering when states may provide immunity from federal antitrust laws to private firms that they have assigned to perform a public task.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Feb. 19, 2013, 9:03 AM),