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Monday round-up

Last week the Court issued its decision in Environmental Protection Agency v. EME Homer City Generation, upholding the agency’s regime to regulate interstate air pollution.  Jeremy P. Jacobs of Greenwire reports on some of the legal issues that remain unsettled after the decision, while at Federal Regulations Advisor Leland Beck highlights two points regarding the case’s contribution to administrative law.  At his Election Law Blog, Rick Hasen discusses Justice Antonin Scalia’s recent mischaracterization, in his dissent, of an earlier case that he authored; Hasen then uses the mistake as a jumping-off point from which to discuss “another kind of mistake: where a Court opinion mischaracterize[s] the law in a way that changes the law in a major way, perhaps through inadvertence.”  And at Jost on Justice, Kenneth Jost contends that, although “[s]ome legal observers dismissed the mistake as a mere typo, . . . it was more than that. Scalia fixed in his mind an image of the EPA as an out-of-control bureaucracy and misremembered the past to align with his view of the world.”  And Beverly Mann discusses the mistake and the case at Angry Bear.

The Wall Street Journal’s Jess Bravin interviewed Justice Ruth Bader Ginsburg, who once again reiterated that she has no plans to retire.   More excerpts from the interview are available here.


  • In an op-ed for USA Today, Scott Ward and Patrick Purtill discuss the challenges to the Affordable Care Act’s contraceptive mandate and the prospect – raised by Justice Anthony Kennedy at oral argument – that, if the mandate is upheld, for-profit employers could also be required to pay for abortions.  They contend that arguments in favor of the mandate “erode our first freedoms” and “drive religious individuals from the marketplace . . . .  This is not the free exercise of religion our Constitution guarantees.”
  • In an op-ed for the New York Post, Norman Lamont — a former U.K. Chancellor of the Exchequer — urges the Court to grant review in Arab Bank v. Linde, a case involving the authority of U.S. courts to punish a foreign bank for failure to turn over financial records that are protected by foreign financial secrecy laws.  The Court asked the Solicitor General to file a brief expressing the views of the United States last fall.
  • At Crooks and Liars, Parker Higgins focuses on comments made by Chief Justice John Roberts during the oral argument in the cellphone privacy cases, in which the Chief Justice expressed skepticism that many law-abiding people carry more than one cellphone.  Higgins suggests that if the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.”
  • In a post at The Media Institute, Doug Lichtman weighs in on American Broadcasting Companies v. Aereo, and in particular on the question whether a ruling against Aereo might somehow endanger “cloud computing.”  He contends that there “is a black-letter-law answer to the question about cloud computing.  The answer is that cloud storage providers might well infringe the public performance right, but Congress has already absolved those providers from liability under Section 512” of the Digital Millenium Copyright Act.

Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (May. 5, 2014, 8:17 AM),