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Wednesday round-up

Yesterday’s press coverage of the Court focused on two opinions released yesterday, cases scheduled for oral argument this week, and the same-sex marriage cases that will be argued later this Term.

In one of the two opinions released yesterday, Clapper v. Amnesty International USA, the Court ruled in a five-to-four decision that challengers to a 2008 federal wiretapping law, which included journalists, lawyers, and human rights advocates, could not show that they had been harmed by the law and thus lacked standing to sue.  At this blog, Lyle Denniston provides a report on the opinion along with a “plain English” explanation.  Additional coverage comes from Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, David G. Savage of the Los Angeles Times, Richard Wolf of USA Today, Warren Richey of The Christian Science Monitor, David Kravets of Wired, Matt Sledge at The Huffington Post, Joe Mullin at Ars Technica (thanks to Howard Bashman for the link), Kent Scheidegger of Crime and Consequences, Julian Sanchez of Cato@Liberty, Ruthann Robson and Steven D. Schwinn at Constitutional Law Prof Blog, Jonathan H. Adler of the Volokh Conspiracy, Jesse J. Holland at the Associated Press, and Lawrence Hurley and Jonathan Stempel of Reuters.  At PrawfsBlawg, Howard Wasserman notes that “[t]here has always been a strong political/ideological valence to standing, particularly as it affects constitutional litigation,” while other commentary comes from Rochelle Bobroff at the Constitutional Accountability Center.

In yesterday’s other opinion, Marx v. General Revenue Corp., the Court held in a seven-to-two decision that plaintiffs who lose suits claiming violations of the Fair Debt Collection Practices Act may be liable to defendants for their costs even though the case was not brought in bad faith.  Erin Fuchs at Business Insider and Brent Kendall of The Wall Street Journal (subscription required) have coverage.

Yesterday the Court also heard oral argument in two cases.  In Peugh v. United States, the Court considered whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.  And in Maryland v. King, the Court heard arguments on whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.  Lyle Denniston provides an report on the argument in King at this blog; additional coverage of the case comes from Greg Stohr of Bloomberg, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, Lawrence Hurley of Reuters, Jesse J. Holland of the Associated Press, Richard Wolf of USA Today, Ariane de Vogue of ABC News, Warren Richey of the Christian Science Monitor, Bill Mears of CNN, Garrett Epps of The Atlantic, and Ian Duncan of the Baltimore Sun.

Kali Borkoski provides links to the transcripts of yesterday’s arguments at this blog.

Also garnering considerable coverage yesterday were the oral arguments the Court is scheduled to hear today, particularly Shelby County v. Holder, in which the Court is considering the constitutionality of the Voting Rights Act.  At this blog, Lyle Denniston previews the oral argument in Shelby and also provides a breakdown of the potential ways the Court could resolve the case.  Other coverage of Shelby comes from Nina Totenberg of NPR, Liz Halloran of NPR, Ken Jost of Jost on Justice, Jess Bravin of The Wall Street Journal, Lawrence Hurley of Reuters, Warren Richey of The Christian Science Monitor, Sean Lengell of the Washington Times, Pete Williams of NBC News, and Ariane de Vogue of ABC News.  Commentary on the case comes from Gilda R. Daniels, Steven D. Schwinn, Ryan P. Haygood, Gabriel J. Chin, and Justin Levitt at ACSblog, Richard Hasen at Reuters, and David Cole at the New York Review of Books, who suggests that “[h]ow the Court decides this case will turn on its view of Congress’s power to enforce the Fourteenth and Fifteenth Amendments.”

The Court will also hear arguments today in American Express Co. v. Italian Colors Restaurant, presenting the issue of whether the Federal Arbitration Act permits courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim.  David Garcia and Leo Caseria preview the case at this blog, with other coverage from Andrew Longstreth of Reuters.

Finally the two same-sex marriage cases that the Court is scheduled to hear later this Term continue to generate press coverage.  As Lyle Denniston reported for this blog, yesterday the plaintiff in United States v. Windsor submitted her brief challenging the constitutionality of the federal Defense of Marriage Act.  Chris Geidner of BuzzFeed also provides coverage of the brief submission.  At Bloomberg, Greg Stohr discusses the prospect that the Obama administration will file a brief in Hollingsworth v. Perry—the challenge to California’s Proposition 8.  And at the Opinionator blog of The New York Times, Andrew Rosenthal discusses a recent amicus brief filed in Hollingsworth by several prominent Republicans in support of gay marriage (which Sarah discussed in yesterday’s round-up); Rosenthal argues that the brief “seems born of political expedience,” less than “courage.”


  • Jon Carroll at the San Francisco Chronicle discusses Justice Sotomayor’s recent remarks on televising oral arguments, arguing that “[i]f the Supreme Court justices really believe in their nobility of purpose, they should be willing to let the public see how they operate.”
  • At this blog, Steve Vladeck reports on Monday’s oral argument in Trevino v. Thaler; Kent Scheidegger of Crime and Consequences also provides a brief discussion of Trevino.
  • At Crime and Consequences, Kent Scheidegger notes that the cert. petition in Stewart v. United States involves “the former lawyer who abused the attorney-client privilege to smuggle messages for the ‘blind sheikh,’ Omar Ahmad Ali Abdel Rahman.”
  • At The Atlantic, Andrew Cohen discusses Justice Sotomayor’s separate opinion regarding Monday’s denial of certiorari in Calhoun v. United States (which Sarah covered in yesterday’s round-up), in which Justice Sotomayor condemned the racially biased remarks of a Texas federal prosecutor against a criminal defendant.
  • Professor Rory Little recaps the Court’s criminal cases in the October 2011 Term for the Criminal Justice Section of the American Bar Association.
  • At The Hill, Kevin Bogardus writes that “[l]obbyists who are active on Washington’s fundraising circuit fear a shakedown is coming if the Supreme Court lifts the cap on contributions to lawmakers and party committees,” as many Court watchers anticipate will happen in the the wake of the Court’s cert. grant in McCutcheon v. Federal Election Commission.

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Feb. 27, 2013, 9:49 AM),