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Tuesday round-up

Yesterday’s coverage of the Court focused on the cases scheduled for oral argument this week, the Court’s denial of certiorari in a campaign finance case, and Justice Sotomayor’s rebuke of a prosecutor’s seemingly racist comments at trial.

Today the Court will hear oral arguments in two cases. In Maryland v. King, the Court considers whether the Fourth Amendment allows states to collect and analyze DNA samples from people arrested for serious crimes without first obtaining a warrant. Coverage comes from Nina Totenberg at NPR (audio), Jesse J. Holland at the Associated Press, Lawrence Hurley at Reuters, and Joe Johns at CNN (video). In an op-ed for the ABA Journal, Erwin Chemerinsky observes that “[t]he case powerfully illustrates the deficiencies in traditional approaches to the Fourth Amendment and the need for the court to develop a Fourth Amendment jurisprudence based on protection of informational privacy.”

The Court will also hear arguments in Peugh v. United States, in which it considers whether application of the U.S. Sentencing Guidelines in effect at the time of sentencing violates the Ex Post Facto Clause where the newer guidelines impose a harsher penalty than was in effect at the time the offense occurred. At this blog, Rory Little previews the argument and observes that the ultimate question is whether the presence of judicial discretion in applying what are now “merely advisory” guidelines displaces the protections of the Ex Post Facto Clause.

Coverage also focused on Shelby County v. Holder, the case involving a challenge to Section 5 of the Voting Rights Act, which is scheduled for argument tomorrow. At this blog, Amy Howe provides background of the case to readers in plain English, while Lyle Denniston previews the case and the options before the Court. Coverage includes reports from Nina Totenberg of NPR (audio), Jake Grovum at Stateline, Arian DeVogue at ABC News, and Sean Lengell of The Washington Times, and op-eds from Adam Cohen of TIME, Ed Morrissey at Hot Air (video), Roger Clegg and Joshua P. Thompson at National Review Online, and Elizabeth Wydra at The New York Times. At Balkinization, Nate Persily introduces a paper he jointly authored with Charles Stewart and Steve Ansolabehere concerning racial polarization in the 2012 elections and its relevance to the constitutional challenge at issue in Shelby County.

Yesterday, the Court granted review in two cases, as Lyle Denniston reports at this blog. Burt v. Titlow involves the question of whether a lawyer’s bad advice to a criminal defendant during a plea bargain violated that defendant’s Sixth Amendment right to effective assistance of counsel. Coverage comes from Jonathan Stempel and Lawrence Hurley of Reuters. In Kansas v. Cheever, the Court will consider whether the Fifth Amendment privilege against self-incrimination allows prosecutors to rebut a defendant’s claim of mental incapacity with evidence from a court-ordered mental evaluation of the defendant. Coverage comes from the Associated Press and Hurst Laviana of The Wichita Eagle. Both cases will be argued and decided in the Court’s next term, which begins in October.

Coverage also focused on the Court’s decision yesterday to deny review of Danielczyk v. United States, a case challenging a century-old ban on direct corporate contributions to candidates in federal elections. The petitioners argued that the Court should strike down the law in light of its landmark decision in Citizens United v. FEC. Reports come from the Associated Press, Jonathan Salant at Bloomberg, Warren Richey at The Christian Science Monitor, Peter Overby at NPR, Byron Tau of POLITICO, Brent Kendall of the Wall Street Journal (subscription required), Erin Fuchs at Business Insider, and Robert Barnes of The Washington Post. At Election Law Blog, Rick Hason writes that “[t]he decision not to hear the case is significant, because it means the Supreme Court majority, which has shown hostility to campaign finance limits, has decided not to move as aggressively as it could in further deregulating the campaign finance system.”

In an order denying certiorari in Calhoun v. United States, Justice Sotomayor wrote separately to condemn the racially biased remarks of a federal prosecutor in Texas against criminal defendants in a drug conspiracy trial. In an opinion joined by Justice Breyer, Justice Sotomayor agreed that the decision to deny review was correct because the defendant’s lawyer did not object to the remarks at trial, but she wrote to “dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance” of such remarks. Reports come from Pete Williams of NBC News, Debra Cassens Weiss at the ABA Journal, Eyder Peralta at NPR, Lawrence Hurley of Reuters, David G. Savage of The Los Angeles Times, Tal Kopan at POLITICO, and Fox News.

Coverage of the upcoming same-sex marriage cases continues.  Sheryl Gay Stolberg at the New York Times reports on a brief to be filed by prominent conservatives in Hollingsworth v. Perry, urging the Court to invalidate California’s “Proposition 8” banning same-sex marriage. Additional reports address the impending deadline for the United States to file a brief in the case.  Coverage comes from Scott Horsley of NPR (audio) and Mark Silva of Bloomberg. Sarah Muller at MSNBC discusses the brief filed last week by the United States in United States v. Windsor urging the Court to strike down the federal Defense of Marriage Act.

Finally, other coverage focused on the Court’s recently released opinions. At this blog, Andrew Taslitz writes about the Court’s opinion issued last week in Bailey v. United States, in which it held that a rule permitting police officers to detain persons found on the premises during lawful execution of a search warrant does not extend beyond the premises’ immediate vicinity. Also at this blog, Rory Little summarizes the Court’s opinion in Henderson v. United States, holding that an error may be “plain” within the meaning of Federal Rule of Criminal Procedure 52(b) so long as that error was plain at the time of appellate review. The Gleaner (Jamaica) reports on the Court’s opinion issued last week in Chaidez v. United States, in which the Court held that its decision in Padilla v. Kentucky, which requires defense attorneys to inform immigrant criminal defendants of the deportation risk of guilty pleas, does not apply retroactively to cases which had already become final prior to the Court’s decision in that case.


  • Adam Liptak of The New York Times reports on yesterday’s oral arguments in McQuiggin v. Perkins, a case involving whether the deadline for filing a federal habeas corpus challenge to a state court conviction may be waived where a prisoner claims to have evidence proving his actual innocence.
  • In the PBS/AOL video series “Makers: Women Who Make America” (video), Justice Ginsburg discusses how her marriage to her late husband, Martin Ginsburg, was ahead of its time. (Hat tip: Huffington Post).
  • Krissah Thompson at The Washington Post reports on how Edward Blum managed to get two civil rights cases before the Court this term, Fisher v. University of Texas at Austin, a case in which a white student is challenging a public university’s affirmative action policies, and Shelby County v. Holder, the case challenging Section 5 of the Voting Rights Act. His strategy: seek out plaintiffs, pair them with legal counsel, and bankroll the litigation.
  • The Associated Press reports that the Court yesterday denied review of a petition sought by the state of Virginia seeking to reinstate the death sentence for a convicted killer who claims that his mental incapacity renders him ineligible for the death penalty under the Court’s holding in Atkins v. Virginia.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Feb. 26, 2013, 9:16 AM),