Wednesday round-up

AMY HOWE JUN 24, 2015 7:45 AM

Tomorrow the Court is scheduled to issue one or more opinions in argued cases.  At Cato at Liberty, Ilya Shapiro looks at the remaining cases on the Court’s docket, while I do the same in Plain English for this blog.  At his Election Law Blog, Rick Hasen discusses some of the early overviews of the Term and concludes that “it is true that the term is trending liberal,” but he cautions that we shouldn’t “expect the Court to stay this way, not even into next term (or next week).” 

Other coverage and commentary focus on decisions from earlier this week.  In City of Los Angeles v. Patel, the Court held that a Los Angeles ordinance which allows police to inspect hotel guest registries without advance notice or a warrant is unconstitutional because it does not provide an opportunity for precompliance review.  At Hamilton and Griffin on Rights, Leslie Shoebotham analyzes the opinion, which she describes as “more than a hotel ordinance case,” while at Dorf on Law Michael Dorf suggests that there is a logical tension between Justice Sotomayor’s majority opinion in Patel and her dissent in Horne v. Department of Agriculture, in which the Court held that a raisin marketing program which requires raisin growers to hand over part of their crops to the federal government violates the Constitution.  Other commentary comes from Kevin Walsh at Mirror of Justice.  At Nahmod Law, Sheldon Nahmod weighs in on the decision in Kingsley v. Hendrickson, in which a divided Court held that a pretrial detainee bringing an excessive force claim must show only that jail officers’ use of force was objectively unreasonable.  He describes the opinion as a “sound one,” reasoning that “it would have been fundamentally unfair for pretrial detainees, who by definition have not been convicted of anything, to be governed by a subjective inquiry of the sort the governs excessive force claims brought under the Eighth Amendment by those already convicted.”

At the George Washington Law Review’s On the Docket, Peter Smith and Robert Tuttle analyze last week’s decision in Walker v. Texas Division, Sons of Confederate Veterans and observe that, “[a]t a time of renewed attention to the divisive character of the Confederate flag, the majority  . . . succeeded in permitting Texas to block its display on state-issued plates.  But to the extent that the liberal justices in the majority are concerned about the proliferation of state-sponsored religious messages, their approach . . . will offer only slight assistance.”  And in The Wall Street Journal, Jess Bravin reports on efforts to remove the Confederate flag from license plates in other states.

Briefly:

• At Balkinization, Linda Greenhouse and Reva Siegel discuss the current challenges to Texas abortion restrictions and argue that the Court’s 1992 decision in Planned Parenthood v. Casey “has now been the law of the land longer than Roe.  The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago.”
• At ACSblog, Ilya Somin discusses Kelo v. City of New London, which came out ten years ago this month, and argues that “the decision may well go down in history as the beginning of the end of the era when most simply assumed that the Constitution allows the government to condemn Americans’ property for almost any reason it wants.”
• At the George Washington Law Review’s On the Docket, Christy DeSanctis analyzes last week’s decision in Brumfield v. Cain and notes that Justice Clarence Thomas’s discussion of the victim’s son in his dissent “is reminiscent of Justice Thomas’s discussion in his confirmation hearings of Richard Wright’s Native Son” and his own memoir, in which “he recognized that his own difficult circumstances early in life could have rendered him, too, a tragic figure.”
• In Paste Magazine, John Ruch analyzes Monday’s decision in Kimble v. Marvel Enterprises, in which the Court declined to overrule its 1964 precedent holding that a patent holder cannot recover royalties for the use of its invention after the patent term expires; he concludes that, although it is “a fun opinion,” Justice Elena Kagan’s opinion for the Court “gets the moral of the Spidey origin story totally backward. As every true believer knows, Spider-Man’s mistake was not abusing his power—it was using it too sparingly.”

 [Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the hotel/motel owners in Patel. However, I am not affiliated with the firm.]

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