Breaking News

Tuesday round-up

Yesterday the Court issued one opinion and orders from its March 1 Conference. In an opinion by Justice Ginsburg, the Court held in Levin v. United States that a veteran can pursue his lawsuit against the United States alleging that a Navy doctor performed cataract surgery without his consent. Coverage comes from Debra Cassens Weiss at the ABA Journal and The Associated Press.

The Court granted certiorari in one case, Walden v. Fiore, in which it will consider personal jurisdiction and venue issues arising from a lawsuit filed by two professional gamblers in Nevada against a police officer who confiscated their winnings at the Atlanta airport. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.] Reports come from Lawrence Hurley of Reuters and The Associated Press.

The Court also agreed to extend and divide the time allotted for oral arguments in United States v. Windsor, the challenge to the federal Defense of Marriage Act. Fifty minutes will be devoted to arguments on the question whether the Court has jurisdiction to consider the challenge, while one hour will focus on the merits of the challenge. Reports come from Peter Landers at The Wall Street Journal (subscription required) and Chris Johnson at Washington Blade.

Other coverage focused on the amicus briefs filed in the same-sex marriage cases. At Bloomberg View, Cass Sunstein discusses the historic significance of the amicus brief that the federal government filed last week in Hollingsworth v. Perry, in which it argues that California’s Proposition 8 banning same-sex marriage violates the Equal Protection Clause. And at Slate, Emily Bazelon argues that, in reviewing the challenge, “the Justices don’t need to make gay marriage legal everywhere. In fact, a more modest ruling could be much more powerful.” Other coverage of the government’s position in Hollingsworth comes from Sahil Kapur at TPM.

At The Volokh Conspiracy, Dale Carpenter discusses the amicus brief he filed in United States v. Windsor with several other federalism scholars urging the Court to invalidate Section 3 of the federal Defense of Marriage Act, which defines marriage as a union between a man and a woman for purposes of over a thousand federal programs and laws.  At, Damon W. Root considers that brief’s potential impact on Justice Thomas, who, Root argues, “has a tendency to break with the Supreme Court’s conservative bloc when federalism principles are at stake in a case that is otherwise seen to advance a liberal political agenda.”

Finally, Kenneth Jost at Jost on Justice and Ilya Somin at The Volokh Conspiracy discuss the shift in public opinion regarding gay marriage and its potential impact on the Court.


  • At this blog, David Garcia and Leo Caseria report on last week’s oral arguments in American Express v. Italian Colors Restaurant, in which the Court is considering whether the Federal Arbitration Act allows courts to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim.
  • Also at this blog, our “SCOTUSblog on Camera” features the first part of a five-part interview with NPR legal affairs correspondent Nina Totenberg.
  • Writing for Constitution Daily, Abigail Perkiss previews Adoptive Couple v. Baby Girl, scheduled for oral argument on April 16, in which the Court will consider whether a non-custodial parent can invoke the Indian Child Welfare Act to block an adoption that was initiated by a non-Indian parent and already voluntarily and lawfully carried out under state law.
  • Katie Thomas of The New York Times previews Mutual Pharmaceutical Company v. Bartlett, a case scheduled for oral argument on March 19, in which the Court will consider whether federal law preempts a state law design-defect claim against a generic drug manufacturer.
  • At TIME, Adam Cohen reports on two recent decisions by the Tenth and Seventh Circuits reaching different conclusions on the question whether the Second Amendment protects the right to carry a concealed weapon in public, concluding that “[t]he issue will no doubt eventually land in the Supreme Court – and the stakes will be high.”
  • At the Election Law Blog, Christopher S. Elmendorf and Douglas M. Spencer respond to questions from the Chief Justice during last week’s oral arguments in Shelby County v. Holder regarding whether “the citizens of the South are more racist than citizens in the North.” They report that the preliminary results of their study using recent data on the prevalence of racial stereotypes reveal that “the coverage formula of Section 5 [of the Voting Rights Act] does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.”
  • In his Sidebar column for The New York Times, Adam Liptak discusses a recent study of the Court’s increasing invocation of the “floodgates” metaphor in its decisions and the questionable nature of such reasoning in the context of legal interpretation.
  • David Holahan at The Christian Science Monitor and Michiko Kakutani of The New York Times review the latest book by retired Justice Sandra Day O’Connor:  Out of Order: Stories from the History of the Supreme Court.
  • Graydon Royce of the Star Tribune reports on a new play dramatizing the complex, eighty-year relationship between Chief Justice Burger and Justice Blackmun, who started out as childhood friends in St. Paul, Minnesota only to grow apart during their time on the Court.


Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Mar. 5, 2013, 9:29 AM),