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Thursday round-up

Coverage of Tuesday’s oral arguments continues. In Ars Technica, Joe Mullin discusses the argument in Samsung Electronics v. Apple, a dispute over the proper scope of a damages award for design patent infringement, noting that groups “that have been pushing for patent reform have already released statements hopeful that the high court will at least tone down the massive verdict.” Coverage of the argument in Pena-Rodriguez v. Colorado, which involves racial bias in jury deliberations, comes from Robert Barnes at The Washington Post, who reports that “Justice Elena Kagan called it ‘the best smoking-gun evidence you’re ever going to see about race bias in the jury room,’” and Adam Liptak at The New York Times, who notes that the argument was “marked by testy exchanges.” Commentary on Pena-Rodriguez comes from Elizabeth Wydra, who in The Huffington Post urges the court to “rule in favor of Peña-Rodriguez to make clear that racial prejudice has no place in our judicial system.” Steve Vladeck provides this blog’s analysis of the argument in Manrique v. United States, which centers on an appeal of a restitution award.

Constitution Daily reports on Hernandez v. Mesa, a case granted this week that stems from the cross-border shooting of a Mexican citizen, noting that the court “added a question about determining if the parents had a constitutional right to sue a Border Patrol officer” who shot their son. Additional coverage of Hernandez comes from Rob O’Dell at AZCentral, who observes that a “final decision by the Supreme Court could provide a definitive ruling whether those who are injured or killed by Border Patrol agents while in Mexico can sue for damages in the United States,” and that there “have been at least six such cases since 2010.” Also for Constitution Daily, Lyle Denniston reports that two of the three cases the court added to its docket this week involve the “Bivens remedy,” named for a 1971 case in which the court allowed a lawsuit against federal agents based on a constitutional violation; he observes that the “two cases have the potential for a major new statement by the court, perhaps an attempt to put the Bivens remedy so far out of reach that it would become, in essence if not in specific terms, a constitutional nullity.”

In Slate, Mark Joseph Stern explores reactions to Justice Ruth Bader Ginsburg’s characterizations of refusals by professional athletes to stand for the national anthem as “’dumb,’” “’disrespectful’’’ and “’arrogant’”; in Stern’s view, Ginsburg has never been the “totem of tough, pure progressivism” her “Notorious RBG” sobriquet might suggest, but is instead “a justice—admirable but imperfect, like any icon—who argues passionately for minority rights in the abstract without fully understanding how each new generation puts those principles into practice.” Another take comes from Dave Zirin in The Nation, who asserts that it “is stunning that a person who has demonstrated such erudition, thoughtfulness and, when necessary, righteous rage, can be so slapdash, condescending, and completely absent of empathy.”


  • In Time, Ryan Beckwith reports that the Supreme Court is included on an official list of topics for the third presidential debate, to be held on October 19.
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen discusses a “friend of the court” brief filed by the State and Local Legal Center in two upcoming mortgage discrimination cases; the brief argues that cities should have standing under the Fair Housing Act to sue banks for discriminatory lending practices because “discriminatory lending diminishes a city’s tax base” and “foreclosed properties are expensive.”
  • In his eponymous blog, John Barrett responds to a recent New York Times op-ed by Gabe Roth that chides the court for not applying its rulings to its own practices; Barrett points to flaws in Roth’s “list of particulars” and observes that it “only sets back public discourse, and it probably makes the Justices less receptive to sound reform proposals, to claim falsely that the Court is broken.”
  • At Syracuse University College of Law’s website, Gregory Germain discusses last week’s insider trading case, Salman v. United States, arguing that the court “must find a way to make family tipping illegal, and to distinguish between proper disclosure and wrongful tipping in a meaningful way.”
  • In an op-ed in the Washington Examiner, Samuel Green weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a pending cert petition involving a First Amendment challenge to a Colorado public accommodations law by a bakery owner who refused to provide a wedding cake for a same-sex couple, arguing that Colorado officials “use the law to force creative professionals to express messages that violate their deepest beliefs and to ban them from expressing the messages they desire.”
  • In her column for The New York Times, Linda Greenhouse argues that “legislating from the bench,” including the Supreme Court bench, “once despised on the political right,” is now “celebrated,” and that the “judge as bogeyman has now become judge as savior – at least when intervening to block executive branch action or to strike down a regulatory requirement in the name of free speech.”
  • Katie Reilly reports in Time that in an interview with Charlie Rose, Justice Ruth Bader Ginsburg “stressed the importance of having nine justices on the Supreme Court” and noted that the Senate could still confirm Chief Judge Merrick Garland in a lame-duck session after the election.

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Oct. 13, 2016, 7:09 AM),