Tuesday round-up

ANDREW HAMM FEB 23, 2016 2:50 PM

Today the Justices heard oral arguments in two cases. Rory Little previewed the Hobbs Act case Taylor v. United States for this blog. Ronald Mann previewed the patent-damages cases Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer, Inc. for this blog, with other coverage coming from Marilyn Odendahl of The Indiana Lawyer.

Yesterday was the Court’s first day back in session since the death of Justice Antonin Scalia. Lyle Denniston covered Chief Justice John Roberts’s tribute to the late Justice for this blog, with other coverage coming from Tony Mauro of The National Law Journal (subscription or registration required). Mark Walsh provided a “view” from the Courtroom for this blog, with additional coverage focused on Justice Clarence Thomas from Jon Schuppe of NBC News and Ariane de Vogue of CNN.

Yesterday the Justices heard oral arguments in Kingdomware Technologies, Inc. v. United States, a dispute over the scope of set-asides for veteran-owned small businesses in the competition for contracts with the Veterans Administration. Amy Howe analyzed the arguments for this blog, while Steven Koprince provides “first impressions” of the argument in a post at SmallGovCon. Danielle Blevins of Talk Media News concludes that the “outcome of this case will hinge upon the Court’s interpretation of the statute,” and that it is in “cases like this the loss of Justice Scalia will be felt the deepest.”

The Justices also heard oral arguments in Utah v. Strieff, a case involving the scope of the exclusionary rule. Orin Kerr analyzed the arguments for this blog, while Danielle Blevins of Talk Media News predicts that “[i]f the liberal justices can get five votes, a potentially groundbreaking shift in criminal law jurisprudence will occur on the Court.”

For Greenwire, Robin Bravender previews the Court’s arguments tomorrow in Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing, challenges by Maryland and New Jersey to aspects of the Federal Energy Regulatory Commission’s regulatory reach. Lyle Denniston previewed the arguments as well for this blog. In his column for The American Lawyer (subscription or registration required), Michael Goldhaber discusses the law around climate change more generally and posits whether “Scalia [will] be remembered as the vanished robe that saved the globe.” In an op-ed for The Washington Times, John Block discusses the petition in American Farm Bureau Federation v. Environmental Protection Agency and urges the Court to “put a stop” to the EPA’s Clean Power Plan.

Next week the Court will hear arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas abortion regulations. Andy McDonald of The Huffington Post, Laura Bradley of Slate, and Melissa Locker of Time discuss John Oliver’s commentary on the case for his television program, Last Week Tonight. Sandhya Somashekhar of The Washington Post characterizes the case as “the most significant challenge to an argument that has become central to the antiabortion cause: that abortion hurts not just a fetus but also its mother.”

The editorial board of The Washington Post proposes term limits for the Justices and suggests that the “first step to a more stable, more legitimate federal judiciary might be the paradoxical one of allowing politicians to shake up the courts more often than they can now.” Rodney Wilson at The Huffington Post proposes three constitutional amendments: filling federal judiciary vacancies, the meaning of “natural born citizen,” and an analogue to the 1970s Equal Rights Amendment.

Briefly:

• Tony Mauro of The National Law Journal (subscription or registration required) profiles four former Scalia clerks set to argue this Term – John Bash, Curtis Gannon, Paul Clement, and Shay Dvoretzky.
• At The Washington Post’s Monkey Cage blog, Amanda Hollis-Brusky argues that originalism will “live on in the work of Justice Clarence Thomas,” “the jurist least afraid to follow originalism to its logical conclusion,” and in the Federalist Society, an organization which “might actually prove to be [Scalia’s] most important and enduring legacy.”
• Ian Millhiser of Think Progress outlines “four potential strategies the White House may deploy” in selecting a nominee for the Court – the “olive branch,” the “conventional superqualified nominee,” the “non-traditional resume,” and the “declaration of war.”
• In two posts at The Weekly Standard (here and here), Adam White discusses the Scalia’s life by looking at both Scalia’s past writings that have received little public attention and his time at the American Enterprise Institute.
• At PrawfsBlawg, Howard Wasserman suggests that the consequences for First Amendment cases may be less than often assumed if a Democratic appointee were to fill the vacancy left by Scalia’s death.

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