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Monday round-up


  • Michael Kirkland of UPI discusses last week’s order granting Senator Mitch McConnell’s motion to share in the argument time in NLRB v. Noel Canning, the challenge to the president’s recess appointments to the NLRB.  He observes that, as a result of the order, “in the next couple of months the Supreme Court is caught in a vortex of the struggle for power between Democrats and Republicans.”
  • Federal Evidence Review analyzes last week’s decision in Kansas v. Cheever, in which the Court unanimously held that, when a defense expert who has examined the defendant testifies that the defendant lacked the necessary mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.
  • At Inter Alia, the online companion to the Yale Law and Policy Review, Brian Christopher Jones uses United States v. Windsor and the Defense of Marriage Act to illustrate the debate over the significance of short titles in interpreting legislation.  He contends that “the fact that the Supreme Court engaged in such high-profile bickering over a law’s short title demonstrates the need for accuracy and impartiality in statutory naming.”
  • At Sentencing Law and Policy, Doug Berman discusses last week’s order in a Missouri capital case, in which the Court (over the dissent of four Justices) vacated the stay entered by the Eighth Circuit and allowed the execution to proceed; he “wonder[s] if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who’ve already gotten to live on death row for decades, enough is enough.”
  • At DiversityInc, Daniel Levy discusses the October oral arguments in Schuette v. Coalition to Defend Affirmative Action, in which the Court is considering whether Michigan violated the Equal Protection Clause when it amended its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.  He argues that, “[b]ased on the justices’ questions and (even worse) the answers, the court appears ready to decide the wrong case. Listening to the argument, one would think Michigan’s universities used ‘affirmative action’ or ‘racial preferences’ in their admissions policies. They do not.”
  • As Lyle Denniston reported for this blog on Thursday, Aereo, Inc. responded to a petition for certiorari filed by the television broadcasting industry, which is challenging the Second Circuit’s ruling that Aereo’s streaming of television programs on the Internet does not violate the industry’s copyrights, by agreeing that the Court should grant review.  Dan Levine of Reuters reports on a white paper released last week by Cablevision, which pays the broadcast industry retransmission fees; the company argues that “the broadcasters were asking the U.S. Supreme Court to go much further and undo the legal underpinnings of cloud-based content services.”

[Disclosure:  Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on amicus briefs in Windsor and Schuette, but I am no longer affiliated with the firm.]

Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (Dec. 16, 2013, 8:40 AM),