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Tuesday round-up

Today the Supreme Court will hear oral arguments in three cases. First on the schedule is Samsung Electronics v. Apple, a high-stakes dispute over the proper scope of a damages award for design patent infringement. Ronald Mann previewed the case for this blog, as do Jaeeun Shin and Dara Brown for Cornell’s Legal Information Institute. Advance coverage comes from Adam Liptak at The New York Times, Dave Lee at BBC News and Jeff John Roberts at Fortune. Next is Pena-Rodriguez v. Colorado, which involves racial bias in jury deliberations; Amy Howe provided this blog’s preview, and Karen Ojeda and Nicholas Halliburton preview the case for Cornell. In the afternoon, the court will hear argument in Manrique v. United States, centering on an appeal of a restitution award; Steve Vladeck previewed the case for this blog; Emily Rector and Kimberly Petrick do the same for Cornell.

Commentary on last Wednesday’s argument in Buck v. Davis, a death penalty case involving racial bias and ineffective assistance of counsel, comes from Peter Montgomery at The American Prospect, who observes that to “civil-rights activists protesting racially tinged police violence around the country, the question of whether courts may consider claims of the supposedly disproportionate danger that African Americans pose to society have taken on added urgency.” At the Alliance for Justice, Arusha Gordon also weighs in on Buck, remarking that “none of the justices at the hearing questioned the “indefensible” nature of the testimony at Buck’s trial (indefensible being Justice Alito’s language).” The World and Everything in It (podcast), covers the oral arguments in Buck and in Shaw v. United States, the federal bank fraud case that was also argued last week.

In The Washington Post, Robert Barnes reports that the “Supreme Court finally got a moment from the presidential candidates” during Sunday night’s debate, “with Hillary Clinton saying she would appoint justices who would lead the court in a different ‘direction,’ and Donald Trump saying his nominees would be in the mold of the late Justice Antonin Scalia.” At (subscription or registration required), Tony Mauro reports that Clinton “suggested Sunday night she might avoid lawyers who worked at ‘a big law firm and maybe clerked for a judge’ without ‘real life experiences’ in picking nominees for the U.S. Supreme Court if she is elected.” Additional coverage of the candidates’ discussion of possible Supreme Court nominees comes from Cristian Farias at The Huffington Post and Chris Geidner at Buzzfeed.

At Yahoo News, Sarah Boxer reports that in a recent interview with Katie Couric, Justice Ruth Bader Ginsburg called pro football players’ recent refusals to stand for the national anthem “’dumb and disrespectful.’” Ginsburg went on to state that “’I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act.’” Nick Wagoner at ESPN has more coverage of Ginsburg’s remarks. Commentary comes from Victoria Massie at Vox.

At CrimProfBlog and the UC Hastings College of the Law’s faculty blog, Rory Little takes another look at Manuel v. City of Joliet, a case argued last Wednesday that asks whether a claim of malicious prosecution for wrongful post-indictment detention can be brought under the Fourth Amendment, pointing out that concentrating on the word “unreasonable,” and then separating out the implications that constitutional standard may have” for other issues surrounding the contours of the claim, clarifies the case. In Justia’s Verdict blog, Vikram Amar also discusses Manuel, observing that “once we say (as we have) that the Fourth Amendment protects not only against a wrongful initial arrest, but also the time between arrest and indictment, it is not at all clear why an indictment would cause its protection to vanish.”


  • In The Economist, Steven Mazie takes a look at the Supreme Court term that began last week, noting that “despite the dearth of doozies,” “the docket does feature significant disputes, including a large handful involving race,” and predicting that until confirmation of a new justice ends the current 4-4 deadlock, the court “will probably duck pending petitions from a transgender Virginia high-schooler who wishes to use the boy’s washroom and from a Colorado baker who refuses to make cakes for gay couples.”
  • At The American Prospect, Lincoln Caplan points out that 2016 marks the court’s “48th year in a row under the leadership of a conservative chief justice appointed by a Republican president,” arguing that “the Court has been at least as influential in the rightward shift of American law and policy as elections and the presidents and legislatures they elected” and observing that if “she is elected, Hillary Clinton will have the chance to transform the Court and its application of the Constitution.”
  • In his Sidebars blog, Randall Eliason looks at Shaw v. United States, last Tuesday’s bank fraud case, observing that “it’s very possible the government could win the legal fight over the definition of bank fraud and still lose the case based on flawed jury instructions,” and that “however it ultimately comes out, Shaw will be instructive in one more area: the importance of sound prosecutorial charging decisions.”
  • In his Forma Legalis blog, Jason Steed recaps all five oral arguments from last week and predicts the likely outcomes in the cases.
  • At Crime and Consequences, Kent Scheidegger discusses last week’s renaming of George Mason University’s law school as the Antonin Scalia Law School, stating that “Justice Scalia was a giant of the law and a leader in producing an important change in direction for our judicial system.”
  • The editorial board of USA Today weigh in on the stalemate over the nomination of Judge Merrick Garland, maintaining that “Senate Republicans are shirking their constitutional responsibility to advise and consent on judicial nominations.”
  • At the Pacific Legal Foundation’s Liberty Blog, Wen Fa discusses the cert petition filed last week on behalf of Nebraska financial advisor and tea party activist Bob Bennie, who states that government regulators retaliated against him after he criticized President Barack Obama, arguing that without “the Court’s intervention in this case, Bennie would be denied his First Amendment rights forever.”
  • At his eponymous blog, Ross Runkel reports that the court last week “decided not to decide whether obesity is a disability only when it results from an underlying physiological disorder or condition.”
  • At Empirical SCOTUS, Adam Feldman examines “the Justices’ relative support for the federal government” in 134 cases decided since October Term 2010, concluding that “the Justices’ low levels of support for the federal government on the whole and the differential levels of Justice support both insinuate that some assumptions of the Justices’ predispositions may be overstated.”
  • In Time, Katy Steinmetz reports on a recent study by several linguists of Justice Ruth Bader Ginsburg’s speech patterns; when the linguists compared Ginsburg’s “accent features as an advocate in the ’70s to those she first uttered after returning to the court as a justice in 1993, they found the later sounds to have become significantly more ‘New Yorky,’” concluding that “the sounds of her youth have come back in part because one of the most powerful women in America doesn’t have to fret so much about what people think these days.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Oct. 11, 2016, 6:44 AM),