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Tuesday round-up

The Court issued two decisions in argued cases yesterday. Its decision in Dart Cherokee Basin Operating Company v. Owens, in which it held that a notice of removal requires only a plausible allegation that the amount in controversy exceeds the state court’s jurisdictional threshold, garnered the most commentary. Adam Steinman summarizes the five-four decision at the Civil Procedure and Federal Courts Blog, while at the Ogletree Deakins blog, Hera Arsen and Rafael Nendel-Flores observe that, although “it remains to be seen how faithfully U.S. district courts will apply [yesterday’s] decision, it may become a landmark decision for class action defendants that previously found the CAFA removal door virtually impossible to open.” At Mayer Brown’s Class Defense Blog, Archis Parasharami and Thomas Wolf argue that the Court’s “holding that it was proper to reach the merits is significant,” while James Pfander weighs in on the decision at PrawfsBlawg. And at Re’s Judicata, Richard Re discusses the “‘you, too!’ fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite” – in connection with yesterday’s ruling.

In Heien v. North Carolina, the Court held that a police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop under the Fourth Amendment. Rory Little covered the decision for this blog, with other coverage coming from Nina Totenberg of NPR. Commentary on the case comes from Noah Feldman for Bloomberg View, who characterizes the Court’s rationale that “police ignorance is excusable only when the crime for which the defendant was convicted is different from the nonexistent crime for which he was stopped and searched” as “iffy.”

Justices Elena Kagan and Antonin Scalia were not on the bench yesterday.  Instead, the two appeared together at the Ole Miss law school, where they discussed everything from the Supreme Court bar to Justice Scalia’s legacy of “textualism.” Coverage comes from Richard Wolf of USA Today (via The Clarion-Ledger) and Jeff Amy of the Associated Press (via the Northeast Mississippi Daily Journal).

Yesterday the Court also issued additional orders from its December 12 Conference. Among other things, it let stand a decision by the U.S. Court of Appeals for the Ninth Circuit blocking the enforcement of an Arizona law that restricts the use of the abortion pill RU-486. Lyle Denniston covered the order list for this blog, with other coverage of the Arizona order coming from Nina Totenberg of NPR, Pete Williams of NBC News, and Howard Fischer of Capitol Media Services (via the Arizona Capitol Times). Fischer also reports (via the Arizona Daily Star) that the Court declined to review a Ninth Circuit ruling requiring the state to provide incontinence briefs to lower-income adults who need them.


  • In another column for Bloomberg View, Noah Feldman discusses last Friday’s grant in Toca v. Louisiana, in which it will consider whether its 2012 decision prohibiting mandatory sentences of life without parole for juveniles convicted of murder applies retroactively. He contends that “[t]he doctrine the Supreme Court applies when it ordinarily declines to make its decisions retroactive to convicted defendants is one of the strangest and most horrifying doctrines in the entire body of constitutional law.”
  • At Real Clear Politics, Bill Scher argues that “it might be the perfect time” for Justice Anthony Kennedy to retire, on the ground that “to let a Democratic president and a Republican Senate name his successor would be a fitting bookend to a historic and consequential tenure begun in 1988 thanks to a Republican president and a Democratic Senate.”
  • At PrawfsBlawg, Josh Douglas predicts that when the Court next takes on a voter identification case, it will “largely defer to a state in its election-related processes and will probably uphold whatever law it reviews.  But that is unfortunate,” he contends, “because it is both doctrinally wrong and practically dangerous.”
  • At the Appellate Practice Blog of the International Municipal Lawyers Association, Lisa Soronen explains why the Court’s cert. grant earlier this month in Walker v. Texas Division, Sons of Confederate Veterans “may have implications beyond the specialty license plate context”: “Lower courts have struggled to determine whether government websites, advertisements on city buses, memorial bricks and tiles at public schools, etc. are government speech or private speech.”
  • In the Arizona Daily Star, Howard Fischer of Capitol News Services has the latest updates on Arizona’s request for the Court to block a Ninth Circuit decision requiring it to issue driver’s licenses to “dreamers” – young adults who came to this country illegally as children.


Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Dec. 16, 2014, 9:00 AM),