With the Court between oral argument sittings, yesterday’s coverage focused on several upcoming cases.

Greg Toppo of USA Today  interviews David Boies, one of the lead attorneys for the couples challenging California’s Proposition 8 in Hollingsworth v. Perry.  At Balkinization, Jack Balkin notes that “one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year’s time,” and he suggests that the marriage cases illustrate a new modality of constitutional argument, based on how future generations will view an opinion.  Mark Sherman of The Associated Press discusses the Justices’ family backgrounds, observing that the “varied family portraits of the justices are somewhat at odds with the arguments of gay marriage opponents who stress the unique ability of heterosexual couples to have babies as a reason to uphold bans on same-sex marriage.” [Disclosure: Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in this case.]

At Patently-O, Brett M. Fischmann discusses Federal Trade Commission v. Actavis, in which the Justices will consider the legality of reverse payment agreements in patent litigation, and he argues that the Court should resolve “the apparent tensions between the Hatch-Waxman Act, the Patent Act, and the Sherman Act” by giving “substantial priority” to the Hatch-Waxman Act. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented Louisiana Whole Sale Drug Company et al. as an amicus curiae in support of the petitioner in this case.] John Echeverria of the Center for Progressive Reform’s CPR blog discusses Horne v. Department of Agriculture, in which the Justices will consider which federal appellate court – the Federal Circuit or a nonspecialized regional one – should hear a Takings Clause challenge to a federal raisin price stabilization scheme. Meanwhile, at Crime and Consequences Kent Scheidegger argues that the NLRB’s plan to seek Supreme Court review of a decision by the D.C. Circuit limiting the President’s power to make recess appointments (covered in Conor’s round-up yesterday) might present “a case for summary affirmance.”


  • With the fiftieth anniversary of Gideon v. Wainwright looming, Andrew Cohen of The Atlantic reports on the “vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation’s poorest litigants.”
  • At the Volokh Conspiracy, Ilya Somin discusses the arguments for the Court to repudiate its World War II-era Japanese internment decisions.
  • Damon W. Root of Reason  reports that Sackett v. Environment Protection Agency, a Takings Clause decision from last Term, provided the inspiration for author C.J. Box’s new novel, Breaking Point.
  • Erin Geiger-Smith of Thomson Reuters reports on a recent patent seminar, at which retired Judge Arthur Gajarsa suggested that “[r]ecent tension between the U.S. Supreme Court and the Federal Circuit Court of Appeals can be traced to a dispute over what kind of rules framework should be set for patent law.”
  • In his Verdict column for Justia, Mike Dorf discusses Justice Scalia’s “racial entitlement” remarks during oral argument in Shelby County v. Holder, and in a follow-on post at Dorf on Law, he argues that Justice Scalia has not become more “openly partisan” over time; rather, outrage over some of his recent comments can be traced to a “greater distance between the respective liberal and conservative weltanschauungs than in the past.” [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case.]
  • David H. Gans of the Constitutional Accountability Center discusses the argument that the Voting Rights Act should be struck down because it singles out some states for different treatment, arguing that “our Constitution does not contain any principle of equality of states that limits Congress’ exercise of its express constitutional powers.”
  • Writing for Fox News, Curt Levey argues that the odds suggest that at least one conservative Justice will leave the Court before the end of President Obama’s second term.
  • Amy Argetsinger of The Washington Post’s Reliable Source blog reports on an event Monday night at the Shakespeare Theatre’s Harman Hall in which Justice Sotomayor and Rita Moreno discussed their recently released memoirs. (Thanks to Howard Bashman for the link.)


Posted in Round-up

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Mar. 14, 2013, 8:56 AM), https://www.scotusblog.com/2013/03/thursday-round-up-169/