Wednesday round-up

By Amy Howe
on May 28, 2014 at 7:19 am

If Memorial Day is the unofficial start to summer, the day after Memorial Day appeared to be the unofficial start of the home stretch for the Justices, who issued orders (along with a per curiam opinion) and four opinions in argued cases yesterday morning.

The biggest news of the day was the Court’s decision in Hall v. Florida, in which the Court held – by a vote of five to four – that Florida’s requirement that defendants show an IQ test score of 70 or below before being permitted to submit additional intellectual disability evidence is unconstitutional.  Lyle Denniston covered the opinion for this blog; other coverage comes from Nina Totenberg of NPR, Adam Liptak of The New York Times, Mark Walsh at Education Week’s School Law Blog, and Max Slater of JURIST.  Commentary on the decision comes from Noah Feldman, who argues at Bloomberg View that, “[o]n closer examination . . . the decision is less satisfying than it appears”; from Kent Scheidegger at Crime and Consequences, who observes that there “is already a movement afoot to remove IQ ceilings from the definition of intellectual disability altogether” and argues that the movement “must not succeed” in the context of eligibility for the death penalty because “[t]there is no other objective measure”; and from Richard Re at Re’s Judicata, who in light of the decision considers “whether the national consensus analysis . . . is worth retaining.”  

In Wood v. Moss, the Court held that two Secret Service agents who ordered that protesters be moved away from the outdoor area at which President George W. Bush was eating are entitled to qualified immunity from the protesters’ lawsuit alleging viewpoint discrimination in violation of the First Amendment when there was a legitimate security rationale for the removal of the protesters.  Lyle Denniston covered the decision for this blog; commentary on the decision comes from Howard Wasserman at PrawfsBlawg, who contends that, although the unanimous opinion by Justice Ginsburg “[s]ounds simple enough, . . . inside the opinion is a lot of really bad stuff”; from Ruthann Robson at the Constitutional Law Prof Blog, who argues that the decision is “important” because “[i]t further narrows the space for claiming First Amendment violations by Secret Service officers” but also “preserve[s] some room for claimants to proceed (and perhaps even prevail) on a First Amendment Bivens action against individual Secret Service officers engaged in viewpoint discrimination”; and from Adam Steinman at Civil Procedure & Federal Courts Blog, who discusses the extent to which the opinion sheds light on pleading standards.

In Plumhoff v. Rickard, the Court held that the use of deadly force by police officers to stop a high-speed chase did not violate the Fourth Amendment.  Lyle Denniston reported on the decision for this blog; other coverage comes from Rebecca Buckwalter-Poza and Nina Totenberg of NPR (who also cover the decision in Wood) and Jaclyn Belczyk of JURIST.

And in Michigan v. Bay Mills Indian Community, a divided Court held that tribal sovereign immunity bars Michigan’s lawsuit against an Indian tribe seeking to enjoin the tribe’s operation of a casino on non-Indian lands.  I provided initial reporting on the decision for this blog (with more to come later today); other coverage comes from Jaclyn Belczyk of JURIST and Matthew L.M. Fletcher at Turtle Talk.

Before issuing opinions, the Court also released orders from its May 22 Conference, granting one case and calling for the views of the Solicitor General in a pair of related petitions; it also issued a per curiam opinion in Martinez v. Illinois.  Lyle had full coverage of yesterday’s orders and the Martinez opinion for this blog, while Jaclyn Belcyzk had similar coverage for JURIST.

Briefly:

• In an op-ed for Politico Magazine, Senators Rand Paul and Chris Coons weigh in on the cellphone privacy cases currently pending before the Court.  They contend, that “[a]s a matter of text and history,” the “Fourth Amendment says that” the government does not have “the authority to search phones without a warrant. . . .  We hope the Supreme Court agrees.”
• At Hamilton and Griffin on Rights, Leslie Griffin weighs in on Department of Homeland Security v. MacLean, in which the Court will consider how a court should determine whether the information that a whistleblower made public was barred from disclosure outside the agency.
• Writing for The Week, Andrew Cohen reviews Scalia, A Court of One, Bruce Murphy’s biography of Justice Antonin Scalia.