Wednesday round-up

By Adam Chandler
on Feb 23, 2011 at 9:41 am

The Court began its February sitting yesterday with a flurry of activity. It heard oral argument in two cases (Bond v. United States and United States v. Tinklenberg), it issued decisions in two cases (Bruesewitz v. Wyeth and CSX Transportation, Inc. v. Alabama Department of Revenue), it granted certiorari in two cases (Pacific Operations Offshore, LLP v. Valladolid and Stok & Associates v. Citibank), and it called for the views of the Acting Solicitor General in two cases (Osage Nation v. Irby and City of New York v. The Permanent Mission of India to the United Nations). This round-up will summarize and collect coverage of these developments, in that order.

Oral Arguments: Bond v. United States (09-1227) and United States v. Tinklenberg (09-1498)

The oral argument in Bond v. United States was the premier event at the Court yesterday, pairing a soap-opera-like tale of jealousy and revenge with a Tenth Amendment question. Heavy news coverage followed. As Slate’s Dahlia Lithwick explains, the primary question at issue in the case is less than glamorous:  because “the 3^rd Circuit . . . ruled that [the plaintiff] lacked standing to challenge her conviction, finding that only states, not individuals, can bring challenges under the 10^th Amendment[,] . . . oral argument in today’s case suffocates under an airless blanket of ‘standing doctrine.’ And standing doctrine is where all interestingness goes to die.” Still, Lyle Denniston reports for this blog that “[t]he Court definitely had difficulty staying focused on” the standing question; moreover, he continues, the argument “showed the Justices keenly interested in some of the most fundamental questions about the nature of the government that was created under the U.S. Constitution.” But putting the merits of the petitioner’s claim to one side, journalists and commentators generally agreed that “[t]he outcome of the case on the standing point did not seem in much doubt” (the New York Times) by the end of the argument. That is, there appeared to be consensus on the Court that the petitioner, Carol A. Bond, has standing to challenge her conviction. The Wall Street Journal, the Philadelphia Inquirer, the Washington Post (also here), NPR, CNN, the Associated Press (via NPR), UPI, ABC News, Fox News, ACSblog, the WSJ Law Blog, and Constitutional Law Prof Blog have further coverage of the case.

Although yesterday’s second argument—in the Speedy Trial Act case United States v. Tinklenberg—did not attract as much coverage as Bond, it too garnered attention.  In particular, at the end of the argument, it had been five years since Justice Thomas had last questioned a lawyer from the bench during an oral argument. NPR (also here), USA Today, CNN, ABC News, and the Los Angeles Times all have articles marking the milestone. The editorial board of the Los Angeles Times rejects criticism of Justice Thomas’s silence, countering that “[t]here is no requirement that justices speak at oral argument” and that “observers who want to hear the justice’s voice should read his opinions.”

Decisions: Bruesewitz v. Wyeth (09-152) and CSX Transportation, Inc. v. Alabama Department of Revenue (09-520)

Of the two decisions the Court issued yesterday, Bruesewitz v. Wyeth earned the lion’s share of coverage. In an opinion for six justices by Justice Scalia (with Justice Kagan recused), the Court held that the National Childhood Vaccine Injury Act of 1986, which created a no-fault program to provide compensation for vaccine-related injuries, preempts all design-defect lawsuits against vaccine manufacturers. CNN’s Bill Mears writes that “[i]t was clear the high court struggled over precisely how the federal statute should be interpreted”; moreover, as the Washington Post’s Bob Barnes notes, the case produced an unexpected line-up: “[Preemption] questions often divide the court on ideological grounds, but in this case, liberal Justice Stephen G. Breyer joined the court’s consistent conservatives.” The Wall Street Journal’s editorial page lauded the decision, calling it “an important strike against a scare campaign that has caused too many parents to put their children at risk by refusing to inoculate them.” Additional coverage is available from the New York Times, the Wall Street Journal, the Pittsburgh Post-Gazette, USA Today, the Christian Science Monitor, the WSJ Health Blog, NPR’s Shots blog, CBS News’s Crossroads with Jan Crawford blog, the Associated Press (via NPR), Bloomberg, Reuters, the Washington Times, and Courthouse News Service.

In CSX Transportation, Inc. v. Alabama Department of Revenue, the Court held that a railroad can challenge state taxes that are imposed on railroads, but not their main competitors, as discriminatory under the Railroad Revitalization and Regulatory Reform Act of 1976. Justice Thomas, joined by Justice Ginsburg, dissented. The ABA Journal, the Birmingham Business Journal, Dow Jones Newswires (via the Wall Street Journal), Courthouse News Service, and JURIST all have reports on the decision.

Orders: Two Grants, Two CVSGs, and Some Notable Denials

The Court added two cases to next Term’s docket, granting certiorari in Pacific Operations Offshore, LLP v. Valladolid and Stok & Associates v. Citibank. The former presents a question about workers compensation under the Outer Continental Shelf Lands Act, and the latter asks when a waiver of arbitration becomes binding under the Federal Arbitration Act. Business Insurance and Courthouse News Service cover the grant in Pacific Operations Offshore, while Courthouse News Service covers Stok. JURIST briefly describes both cases.

In addition, the Court sought the views of the Acting Solicitor General on two pending cert. petitions, Osage Nation v. Irby and City of New York v. The Permanent Mission of India to the United Nations. Tulsa World and the Associated Press (via NewsOn6 (Tulsa, OK)) have coverage of Osage Nation.

Notable denials include cases about:

• a Nevada law barring brothels from advertising in newspapers (the Las Vegas Review-Journal, Courthouse News Service);
• the No Child Left Behind Act, which the State of Connecticut alleged carries an unfunded mandate (Education Week, the Associated Press (via the Chicago Tribune), Courthouse News Service);
• Ten Commandments displays in Kentucky courthouses (the Christian Science Monitor, Courthouse News Service, the Louisville (KY) Courier-Journal);
• frozen Argentinean assets (Reuters, Dow Jones Newswires (via Nasdaq));
• the “critical habitat” designation of 8.6 million acres of land in four Western states, intended to protect the Mexican spotted owl (Greenwire (via the New York Times), the Associated Press (via the Los Angeles Times));
• the Sixth Amendment precedent Almendarez-Torres v. United States (1998) (Sentencing Law and Policy);
• non-unanimous state jury verdicts (the Associated Press (via the San Francisco Chronicle));
• the State of Utah’s challenge to an ineffective assistance of counsel ruling by the Utah Supreme Court (Salt Lake Tribune);
• retail price restraints imposed by manufacturers (Dow Jones Newswires (via the Wall Street Journal, Courthouse News Service); and
• campaign finance disclosures (Election Law Blog, Courthouse News Service).

*          *          *

Briefly:

• The Louisville (KY) Courier-Journal and the Associated Press (via the Lexington Herald-Leader) preview this morning’s argument in the sentencing case Freeman v. United States.

• Beginning tomorrow night, HBO will air the one-man play Thurgood, which depicts the life of the late Justice Thurgood Marshall.  The play, which stars Laurence Fishburne, was filmed during a live performance at the Kennedy Center in Washington, DC. The San Francisco Chronicle, NewsOK (Oklahoma, City), and Monsters and Critics all have reviews of the play as it will be aired on HBO.

• The Associated Press (via the Houston Chronicle) and the Crime & Consequences blog report on the Court’s refusal to stay the execution of Texas death row inmate Timothy Wayne Adams, who was executed yesterday.

• ACSblog highlights a new “Issue Brief” by law professor David Franklin assessing the extent to which the Court is friendly toward business interests and skeptical of regulation (particularly regulation through litigation).