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Tuesday round-up

Yesterday the Court issued three opinions in argued cases and granted cert. in one new case.

In Oxford Health Plans, LLC v. Sutter, the Court held – in a unanimous opinion by Justice Kagan – that an arbitrator’s determination that parties to a contract intended to authorize class-wide arbitration survives judicial review under the Federal Arbitration Act, so long as the arbitrator was arguably construing the contract. Tom Goldstein provided initial coverage of the opinion here. And in an opinion analysis for this blog, Steve Vladeck observes that “[i]f nothing else, Oxford Health drives home the consequences of [a] trend” in the Court’s jurisprudence to shift more decision making into arbitration – namely “that, even when arbitrators misinterpret arbitration agreements on issues as important as whether the parties consented to class-wide arbitration, there won’t necessarily be anything courts can do to fix it.” Other coverage of the opinion comes from Liz Kramer at Arbitration Nation, Ed Mannino at his blog, Jaclyn Belczyk at JURIST, Hera Arsen at the Ogletree Deakins blog, and Deborah LaFetra at PLF Liberty Blog.

The Court also agreed to hear another arbitration case next Term. In BG Group PLC v. Republic of Argentina, it will consider whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisfied. Coverage comes from Jaclyn Belczyk at JURIST.

In a second unanimous opinion, authored by Justice Thomas, the Court in Horne v. Department of Agriculture held that a farmer who is deemed to have violated an agricultural marketing order and seeks to argue that the resulting fine assessed against him is an unconstitutional “taking” can bring his “takings” claim in a regular federal district court without first paying the fine. Tom Goldstein has posted details on the opinion here. In an opinion recap for this blog, Lyle Denniston notes that the opinion could potentially have a broad impact, as it “appeared to mean that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality” under the Fifth Amendment’s Takings Clause, but he cautions that the ultimate impact of the decision “will depend upon how lower courts interpret the language of the Court’s opinion in different factual settings.” Other reports and commentary on the case come from Michael Doyle at McClatchy, Ilya Shapiro at Cato at Liberty, Damon Root at, Jaclyn Belczyk at JURIST, Jeremy Jacobs at Greenwire, and Ruthann Robson at Constitutional Law Prof Blog.

Finally, in Peugh v. United States, the Court divided five to four in holding that the Constitution’s Ex Post Facto Clause prohibits federal courts from applying the version of the U.S. Sentencing Guidelines in effect at the time of sentencing when they impose a harsher penalty than was in effect at the time the offense occurred. Amy Howe has posted details on the opinion here; other coverage comes from Kent Scheidegger at C&C Blog and Jaclyn Belczyk at JURIST.


  • At this blog, Kedar Bhatia lists the twenty-three merits cases from the October 2012 Term that have not yet been decided.
  • Also at this blog, Lyle Denniston reports that the Justice Department has asked the Court remove a case from next Term’s docket because the respondent in the case has given up its claim. The case is U.S. Forest Service v. Pacific Rivers Council, in which the government had asked the Court to weigh in on the scope of its duty to do environmental impact studies when it makes broad plans for managing the national forests, rather than when it makes a site-specific plan.
  • At the National Review Online, Roger Clegg and Ralph Kasarda urge the Court to grant review in Mount Holly v. Mount Holly Gardens Citizens in Action, a case presenting the question whether “disparate impact” causes of action may be brought under the Fair Housing Act.
  • At PrawfsBlawg, Howard Wasserman reports on Monday’s order denying review in Scott v. St. John’s Church in the Wilderness, a case involving a First Amendment challenge to an injunction preventing the depiction of “gruesome” images in the context of political, moral, and religious advocacy in a traditional public forum to protect the sensibilities of children.
  • At The BLT, Tony Mauro reports on Justice Sotomayor’s recent financial disclosure showing that she has earned more than three million dollars for her bestselling memoir, My Beloved World.

Disclosures: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in BG Group PLC v. Republic of Argentina and represented the American Association of Law Schools as an amicus in Fisher v. University of Texas at Austin. Tejinder Singh of Goldstein & Russell, P.C was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Hollingsworth. Kevin Russell was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in United States v. Windsor.

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Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Jun. 11, 2013, 8:35 AM),