Breaking News

Tuesday round-up

Coverage continues of the five opinions in argued cases released by the Court yesterday. Earlier round-ups covering these decisions can be found here and here. A menu of yesterday’s coverage can be found here.

In Fisher v. University of Texas at Austin, the Court reaffirmed that race-conscious affirmative action programs are subject to strict scrutiny review, but stopped short of outlawing such programs altogether. At this blog, Elise Boddie notes that the decision “may suggest that the Court has become concerned about its institutional legitimacy and, therefore, is now wary of issuing sweeping decisions that depart radically from precedent.” Olatunde Johnson and Vik Amar also weigh in at this blog. Additional reports and commentary come from Nina Totenberg of NPR, Mark Walsh at Education Week, Tony Mauro at The National Law Journal, Richard Wolf of USA Today, Jess Bravin of The Wall Street Journal, Josh Douglas at PrawfsBlawg, Curt Levey of the Committee for Justice, Vinay Harpalani at IIT Chicago-Kent Faculty Blog, Beverly Mann at Angry Bear, and Anastasia Killian at PLF Liberty Blog.

At this blog, Kevin Russell reports on the Court’s two five-to-four decisions narrowing the scope of Title VII employee discrimination claims. In University of Texas Southwestern Medical Center v. Nassar, the Court held that employee retaliation claims are subject to a traditional “but for” causation standard, rather than a less stringent standard of proof.  And in Vance v. Ball State University, the Court held that an employee is a “supervisor” for purposes of the employer’s vicarious liability only if he has the power to take “tangible employment actions” against the victim.  Additional coverage comes from NPR’s Nina Totenberg, Mark Walsh of Education Week, Marcia Coyle of The National Law Journal, Richard Wolf of USA Today, and Daniel Fisher of Forbes.

In United States v. Kebodeaux, the Court held that the registration requirement in the Sex Offender Registration and Notification Act (SORNA) is a valid exercise of Congress’s powers under the Necessary and Proper Clause. Steven Schwinn analyzes the opinion for this blog. Other coverage comes from Kent Scheidegger at C&C Blog.

Finally, in Mutual Pharmaceutical Co. v. Bartlett, the Court held that federal law preempts state law design defect claims targeting generic pharmaceutical products.

Other coverage focused on new cases the Court has agreed to review next Term. Tejinder Singh of this blog reports on the Court’s decision to grant review in the consolidated cases Environmental Protection Agency v. EME Homer City Generation L.P., and American Lung Association v. EME Homer City Generation L.P, in which it will review the D.C. Circuit’s decision to invalidate an important provision of the Clean Air Act regulating cross-state pollution. In National Labor Relations Board v. Noel Canning, the Court will review the D.C. Circuit’s decision invalidating President Obama’s 2012 recess appointments to the NLRB. Reports come from Jeremy Leaming of ACSblog and Marcia Coyle of The National Law Journal.


  • At this blog, Tejinder Singh reports on yesterday’s summary reversal in Ryan v. Schad, a capital case in which the Court held that the Ninth Circuit abused its discretion by failing to make its prior judgment final and effective immediately upon the denial of a petition for certiorari. Other coverage comes from Kent Scheidegger at C&C Blog.
  • Michael Fox at Ogletree Deakins reports on last Thursday’s decision in American Express Co. v. Italian Colors Restaurant, in which the Court held that the Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.
  • Mark Walsh of Education Week reports on the Court’s denial of cert. in Jefferson County School District R-1 v. Elizabeth E., which asked the Court to consider whether the Individuals with Disabilities Education Act requires a school district to pay for a residential placement that is required to treat a child’s mental illness.
  • At The National Law Journal, Tony Mauro reports on the disagreement between Justice Kagan and Justice Alito in Descamps v. United States, a decision released last Thursday in which the Court made it harder for the federal government to use the fact of a prior criminal conviction to increase a criminal sentence.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represented the American Association of Law Schools as an amicus in Fisher v. University of Texas at Austin and was among the counsel to the NACDL as amicus curiae in Descamps.

If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] so that we can consider it.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Jun. 25, 2013, 8:13 AM),