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Tuesday round-up

Yesterday the Court issued its opinion in DIRECTV v. Imburgia, holding that the interpretation by the California Court of Appeals of a service agreement that included a binding arbitration provision with a class arbitration waiver is pre-empted by the Federal Arbitration Act.  Ronald Mann covered the decision for this blog; other coverage comes from Daniel Fisher of Forbes and Jaclyn Belczyk of JURIST.  Commentary comes from Liz Kramer of Arbitration Nation, Justin Sadowsky at Dubitante, and Deborah LaFetra at Liberty Blog.  

At his eponymous blog, Lyle Denniston reports on the petition for review that Samsung filed in its dispute with Apple, noting that, “[a]fter years of battling in lower courts between the nation’s No. 1 and No. 2 makers of smartphones, that billion-dollar-plus feud over patent rights reached the Supreme Court on Monday — maybe only the first of several potential appeals.”  Other coverage of the filing comes from Steve Lohr of The New York Times, Ashby Jones and Daisuke Wakabayashi of The Wall Street Journal, Susan Decker of Bloomberg, Andrew Chung of Reuters, Mark Sherman of the Associated Press, Andrew Nusca of Fortune, Tim Bradshaw of the Financial Times, and Tony Mauro of The National Law Journal.

Other commentary focuses on last week’s grant of review in the Clean Water Act case U.S. Army Corps of Engineers v. Hawkes.  At the Liberty Blog of the Pacific Legal Foundation (which represents the respondent in the case), Reed Hopper contends that under the Army Corps of Engineers and “EPA’s new and expansive interpretation of ‘waters of the United States,’ the Act potentially covers literally millions of landowners across the Country” and he adds that PLF looks “forward to litigating this case to vindicate the rights of landowners nationwide.”  At NFIB, Luke Wake contends that “a landowner should have every right to contest an illegal assertion of jurisdiction over his or her land.”

Yesterday the Court issued an order in favor of an Alabama woman, temporarily blocking an Alabama Supreme Court order that took away her rights (awarded by a Georgia court) to the children that she was raising with her same-sex partner before the couple broke up.  The Court also issued additional orders from its December 11 Conference, adding another case to its merits docket for the Term.  Lyle Denniston covered both sets of orders for this blog, while Alexis Wheeler covered the order in the Alabama case for JURIST; Jaclyn Belczyk covered the grant for JURIST.

Continuing coverage of Evenwel v. Abbott, the Texas “one person, one vote” case, comes from Tony Mauro of the Supreme Court Brief (subscription required), who explains that, during the oral arguments, “another segment of the nonvoting population emerged as a key part of the calculus: children.”  Commentary comes from the editorial board of the Austin-American Statesman, which urges the Court to “leave well enough alone. The Constitution and established practice favor representative apportionment by total population, not voting population.”

Last week’s arguments in the challenge to the University of Texas at Austin’s consideration of race in its undergraduate admissions process continue to garner commentary.  At Slate, Richard Kahlenberg compares comments by Justices Antonin Scalia and Samuel Alito and their possible impact on Justice Anthony Kennedy, suggesting that “Scalia denigrated the abilities of black students, which is likely to backfire with Kennedy, while Alito championed the ability of working-class black and Latino students to do well and become leaders in society—an approach far more likely to positively influence the swing justice.”  And Tanya Lewis of Business Insider reports that, in “the wake of Supreme Court Justice Antonin Scalia’s apparent endorsement of the claim that affirmative action hurts black scientists, professional physicists have written a letter to the Supreme Court denouncing the claims.”

At ACSblog, Erwin Chemerinsky looks back at Bush v. Gore, decided fifteen years ago.  He argues that the ruling “is a powerful reminder that Supreme Court decisions are a product of who is on the bench and their ideology and views.  This, of course, is true in all areas of constitutional law, but rarely has it been as obvious – or as important – as in Bush v. Gore.   And in another post at ACSblog, Rick Hasen notes that “a key federal circuit has resurrected Bush v. Gore as precedent: the Sixth Circuit. In a number of cases out of Ohio, the perennial battleground state in presidential elections, the Sixth Circuit has found lack of uniform rules in the state to raise Bush v. Gore problems.”


  • At Cato at Liberty, Ilya Shapiro discusses the amicus brief that Cato filed in support of a petition challenging the Supreme Court’s requirement that regulatory takings claims first be exhausted in state courts.
  • At The Economist, Steven Mazie looks back to last week’s oral arguments in Harris v. Arizona Independent Redistricting Commission, the challenge to Arizona’s legislative maps, and observes that “at least a few Supremes seem to be entertaining the idea that there may be sharp limits on partisan political considerations as well, at least where voter equality is at stake.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in DIRECTV and among the counsel to the petitioner in Samsung. However, I am not affiliated with the law firm.]

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Dec. 15, 2015, 8:41 AM),