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Tuesday round-up

This morning the Court will hear oral arguments in two cases.  In Mutual Pharmaceutical Co. v. Bartlett, it will consider whether federal law preempts a state-law design defect claim against a generic drug manufacturer. Terry Baynes previews the case for Thomson Reuters.  And in Sebelius v. Cloer, it will consider whether a claimant who files an untimely petition seeking compensation for a vaccine-related injury can recover his attorney’s fees and costs.  Ronald Mann previewed both Bartlett and Cloer for this blog last week.

Yesterday marked the fiftieth anniversary of the landmark decision Gideon v. Wainwright, in which the Court unanimously held that states must provide legal counsel for defendants in criminal cases who cannot afford an attorney. Coverage comes from M. Alex Johnson and Vidya Rao at NBC News and Bill Mears at CNN. In The National Law Journal, Jenna Greene looks at the current state of representation for poor criminal defendants.

Much of yesterday’s coverage focused on the oral arguments in Arizona v. Inter Tribal Council of Arizona, Inc., in which the Court is considering whether a federal law adopted to streamline voter registration requirements preempts an Arizona law requiring would-be voters to show proof of citizenship when registering to vote. At this blog, Lyle Denniston reports on the argument, observing that the Court focused almost exclusively on questions of statutory interpretation and spent only the last ten minutes of the one-hour argument on the constitutional issue in the case. In light of the Court’s focus, Rick Hasen predicts at the Election Law Blog that the case is more likely to “turn on issues of statutory interpretation, or the failure to properly present a challenge to the federal form, and it will not be a major constitutional case on the meaning of the Elections Clause.” Writing for the Constitutional Accountability Center, David H. Gans reports that “[a] majority of the Court, including Justice Anthony Kennedy, appeared to recognize that the entire point of having a single Federal Form was to streamline the voter registration process, and that approving Arizona’s law would pave the way for a patchwork of 50 state forms.” The editorial board of The New York Times also weighs in on the case, arguing that the Court “should reject Arizona’s law as invalid and avoid recreating the problem that the federal law was intended to fix.” Other coverage of the case comes from Greg Stohr of Bloomberg, Nina Totenberg of NPR (audio), Jesse Holland of the Associated Press, Richard Wolf of USA Today, Emily Schultheis of Politico, Lawrence Hurley of Reuters, Michael Doyle of McClatchy Newspapers, Bill Mears of CNN, Adam Liptak of The New York Times, Warren Richey of The Christian Science Monitor, and Morgan Whitaker of MSNBC.

The Court also heard oral arguments yesterday in Bullock v. BankChampaign, N.A., the only bankruptcy case of the Term, in which the Court is considering the scope of an exception to the general rule that a person who obtains bankruptcy relief is discharged from any future obligation with respect to preexisting debts. Ronald Mann previewed the case for this blog; other coverage comes from Nick Brown of Thomson Reuters.

Yesterday the Court released orders from its March 15 Conference. At this blog, Lyle Denniston reports that the Court has granted review in three new cases.  In Madigan v. Levin, the Court will decide whether state and local government employees may bring claims alleging age discrimination directly under the Equal Protection Clause and 42 U.S. C. § 1983 instead of bringing their claims under the Age Discrimination in Employment Act. In Kaley v. United States, the Court will consider whether an individual faced with the forfeiture of property that may be the proceeds of a crime has a right to a pre-trial hearing to challenge the basis for possible forfeiture. Reports on the case come from Lawrence Hurley of Reuters, Brent Kendall of Dow Jones Newswires (reprinted in Fox Business), and Debra Cassens Weiss of the ABA Journal. And in U.S. Forest Service v. Pacific Rivers Council, the Court will consider both a standing question and a question of how detailed the government’s environmental impact studies must be when preparing overarching forest management plans, rather than site-specific plans. Reports come from Michael Doyle of McClatchy Newspapers, Lawrence Hurley of Reuters, and Jeremy Jacobs of E&E Publishing.

The Court also denied cert. in a few notable cases: Greg Stohr of Bloomberg, Jonathan Stempel and Lawrence Hurley of Reuters, and Brent Kendall at Dow Jones Newswires (reprinted in Fox Business) all report on the Court’s denial of cert. in Goldman Sachs v. NECA-IBEW Health & Welfare Fund, which left intact the Second Circuit’s holding that a holder of mortgage-backed certificates underwritten by Goldman Sachs had standing to sue the firm on behalf of investors in certificates it did not own.  The Court also declined to review ThomasRasset v. Capitol Records, a challenge to the constitutionality of a $222,000 jury verdict for illegally sharing music files. Coverage of the case comes from Greg Stohr of Bloomberg, David Kravets of Wired, Eyder Peralta of NPR, Steve Karnowski of the Associated Press, and Dan Browning of the Star Tribune. Finally, Richard Wagner at Ballot Access News reports that the Court has declined to review Libertarian Party v. District of Columbia Board of Elections, a case that asked the Court to review whether jurisdictions must count write-in votes for declared write-in presidential candidates. (Hat tip: How Appealing.)

Commentators continue to discuss the same-sex marriage cases scheduled for oral arguments next week: Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which will be argued on March 26, and United States v. Windsor, the challenge to the federal Defense of Marriage Act, which will be argued on March 27. On Friday, Republican Senator Rob Portman announced his support for same-sex marriage in an op-ed in the Columbus Dispatch, but he also warned that “[a]n expansive court ruling would run the risk of deepening divisions rather than resolving them.” Mike Dorf at Dorf on Law responds that such fears of backlash are misplaced and that, “[g]iven the momentum on this issue, the Court can do the right thing without worrying much about any serious blow to its legitimacy.” At Bloomberg View, Josh Borro likewise counters Senator Portman’s argument and posits that “[a]n expansive court ruling would settle the gay-marriage issue for good, eliminating the need for 20 years of state legislative fights that will be painful for gays and hugely politically damaging to the Republican Party.”


  • At Jost on Justice, Kenneth Jost summarizes Justice Ruth Bader Ginsburg’s legacy in advocating for women’s rights and observes that, as she becomes the twelfth Justice to serve past her eightieth birthday, her legacy “will depend in part on whether she makes the right decision about the best time to step aside.”
  • In an essay in The New York Review of Books (subscription required), David Cole reflects on last month’s oral arguments in Shelby County v. Holder, the challenge to the constitutionality of Section 5 of the Voting Rights Act, and he considers “what happens when justices ostensibly committed to [judicial restraint as a] core principle of conservatism confront a long-standing civil rights statute that offends their view that law should be color-blind, even if the world is not.”
  • At this blog, Deepak Gupta previews tomorrow’s oral argument in Dan’s City Used Cars v. Pelkey, in which the Court will consider whether various state law claims against a tow-motor carrier are preempted by the Federal Aviation Administration Authorization Act. Alison Kuzmickas of New Hampshire News (audio) also reports on the case. (Hat tip: How Appealing.)
  • In his Sidebar column for The New York Times, Adam Liptak notes that the Court is scheduled next week to decide whether to grant cert. in Lepak v. City of Irving, a case that raises the question whether the principle of “one person, one vote” should mean that “voting districts should contain the same number of people or, instead, the same number of voters.”

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Mar. 19, 2013, 9:50 AM),