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Monday round-up

Welcome back! Today the Court officially begins the October Term 2014.  In an interview with Here & Now of NPR and WBUR Boston, Nina Totenberg previews the Term (and sings about the Court!).  Other previews come from David Savage of the Los Angeles Times, Richard Wolf of USA Today (who has another preview here), Marcia Coyle and Tony Mauro of The National Law Journal (registration or subscription required), Adam Liptak of The New York Times, Robert Barnes of The Washington Post, and Chris Geidner of BuzzFeed.

Writing for this blog, Rory Little previews today’s oral argument in Heien v. North Carolina, in which the Justices will consider whether a police officer’s mistake of law provides the individualized suspicion that the Fourth Amendment requires to stop a car; in his column for The Atlantic, Garrett Epps weighs in on the case, which he predicts “will test just how much protection the Fourth Amendment offers to citizens who are guilty or innocent—or just trying to get somewhere.”  And at Re’s Judicata, Richard Re considers a possible “middle-of-the-road solution” that could “give the government a partial victory on the legal standard applicable in future cases, while affording the defendant a victory in the case at hand.”

Tomorrow the Court will hear oral arguments in Holt v. Hobbs, in which it will consider whether an Arkansas policy that prohibits a Muslim inmate from having a half-inch beard violates a federal statute intended to protect the religious rights of prisoners.  I previewed the case for this blog, while Kali Borkoski takes a closer look (video) at prison grooming policies more broadly; other coverage comes from Mark Walsh at the ABA Journal.  In a post at the National Constitution Center’s Constitution Daily, Jeffrey Shulman suggests that “[w]hat makes this case interesting . . . is not the merits of the department’s justifications for its grooming policy, but the burden of proof under which the department will have to labor. It’s the burden of proof that will decide this case—and in all likelihood make the decision an easy one.”

Other coverage of the Court looks ahead to other cases slated for oral argument later on this Term.  At Written Description, Lisa Larrimore Ouellette previews next week’s argument in Teva Pharmaceuticals v. Sandoz, in which the Court will consider whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo or only for clear error.  Two different articles look ahead at next month’s oral argument in the securities case Omnicare, Inc. v. Laborers District Council Construction Industry Pension Council: Stephanie Russell Kraft focuses on the Solicitor General’s role in the case at Law360 (registration or subscription required), while A.W. Chip Phinney III and Joel D. Rothman preview the case at The National Law Review.

Still other coverage and commentary focus on the eleven new cases that the Court added to its docket last week. At the blog of the National Conference of State Legislators, Lisa Soronen discusses the cases granted from the Court’s “Long Conference” that may affect states.  At PrawfsBlawg, Steve Vladeck discusses the grant in Armstong v. Exceptional Child Center.  He notes that the case presents “the exact same question that the Supreme Court had before it–and narrowly ducked–two years ago in Douglas v. Independent Living Center of Southern California . . . . And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs–or, as I’ll explain below, the future availability of remedies under Ex parte Young.”  And at, Jenee Desmond-Harris weighs in on Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, in which the Court will once again consider whether the Fair Housing Act allows lawsuits based on discriminatory effects, rather than intent; she argues that, “if the Supreme Court decides to make proof of intent a requirement to win housing discrimination cases, it would essentially gut enforcement of the FHA.”

Late last week the Justices also fielded requests for them to step into disputes over voting in North Carolina and Wisconsin.  Lyle Denniston has more details on those developments for this blog, while Rick Hasen discusses the North Carolina case here and here at his Election Law Blog.


  • At Coverage Opinions, Randy Maniloff interviews Laurence Tribe about (among other things) future vacancies on the Court and President Barack Obama as a Supreme Court Justice.
  • In a post at ACSblog, Kareem Crayton looks at the use of Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate based on race, in the wake of the Court’s 2013 decision in Shelby County v. Holder, in which the Court struck down the formula used to determine which state and local governments must receive pre-approval for any changes to their voting procedures.
  • At Article 8, Daniel Hensel criticizes recent comments by Justice Antonin Scalia about the separation of church and state.
  • At Jost on Justice, Kenneth Jost reviews The Case Against the Supreme Court, the new book by Erwin Chemerinsky.
  • At USA Today, Richard Wolf looks at the Court and same-sex marriage, writing that, “even after the high court rules — most likely by striking down state bans on gay marriage at the end of its term in June — the fight won’t be over. Another clash looms over the issue of religious freedom.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Omnicare.]

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Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (Oct. 6, 2014, 8:36 AM),