Thursday round-up

By Amanda Rice
on Nov 11, 2010 at 11:17 am

Yesterday the Court heard oral argument in two cases:  CSX Transportation, Inc. v. Alabama Department of Revenue, which asks whether a state’s exemption of railroad competitors from a generally applicable sales tax constitutes discrimination against railroads; and Flores-Villar v. United States, which asks whether a citizenship-transmission requirement that treats mothers differently from fathers constitutes unconstitutional gender-based discrimination. The argument transcripts are available here.

Flores-Villar garnered the lion’s share of the media attention, with most journalists and commentators predicting that the Court will uphold the requirement. Robert Barnes of the Washington Post suggests that although a majority of the court “may be bothered” by the challenged statute, it “seemed unlikely” that the Court would overturn it. The Los Angeles Times, the Associated Press, MSNBC, Courthouse News Service, and Constitutional Law Prof Blog also have coverage of the oral argument. At the Huffington Post, Marcia Greenberger of the National Women’s Law Center discusses the case and argues that “the Court got it wrong in 2001 in Nguyen v. INS” and should strike down “the gender distinction in Flores-Villar.” Courthouse News Service and JURIST have coverage of the argument in CSX.

On Wednesday, the United States filed an opposition to the application by a gay rights group, the Log Cabin Republicans, that has asked the Court to lift the stay (issued by the Ninth Circuit) of the district court’s order blocking enforcement of the military’s “don’t ask/don’t tell” policy.  The government urged the Court to allow the policy to continue while the appeal is pending. The San Francisco Chronicle, CNN, Bloomberg, SCOTUSblog, Politico, ABC News’s  “The Note” Blog, and the Associated Press have coverage.

Finally, the Court appointed Stephen McAllister, the former Solicitor General of Kansas, to brief and argue Bond v. United States as an amicus in support of the judgment below after the respondent in the case, the United States, conceded that the petitioner has standing to challenge her conviction on the ground that the law under which she was convicted exceeds Congress’s powers.  Crime and Consequences Blog’s Kent Scheidegger and SCOTUSblog’s own Lyle Dennison have coverage of the Court’s decision to appoint McAllister.

Briefly:

• ACSblog and Concurring Opinions have further commentary on Tuesday’s oral argument in AT&T Mobility Services v. Concepcion, the arbitration class action case.

• Barry Meier of the New York Times and Kris Maher of the Wall Street Journal report on the most recent developments in the case underlying Caperton v. A.T. Massey Coal Company, Inc., et al., the Court’s 2009 judicial recusal case. On Tuesday, Mr. Caperton refiled his case in Virginia after the West Virginia court again overturned his jury award.

• At the Crime and Consequences Blog, Kent Scheidegger discusses Tuesday’s oral argument in Cullen v. Pinholster. He points out that oral argument “raised an issue that was not briefed,” the meaning of the word “‘claim’ for the purpose of 28 U.S.C. §2254(d),” and argues that “the Court ought not decide it without briefing.”

• The WSJ Law Blog’s Ashby Jones and CNN’s Bill Mears discuss the insights gleaned from former President George W. Bush’s new book, Decision Points, about Bush’s Supreme Court nominations.

• At Dorf on Law, Mike Dorf considers the potential implications of the order in which three gay rights cases, Perry v. Schwarzenegger, the California same-sex marriage case, Gill v. Office of Personnel Management, the DOMA case, and Log Cabin Republicans v. United States, the Don’t-Ask-Don’t-Tell case, reach the Supreme Court.

• At Slate, Heather Gerken discusses the likelihood of redistricting in light of the recent elections and considers whether the Court might potentially “strike down Section 5” or “cut back on Section 2” of the Voting Rights Act.

• At the Volokh Conspiracy, Orin Kerr responds to Professor Noah Feldman’s Slate piece on Justices Sotomayor and Kagan (which Adam covered in yesterday’s round-up).

• Ken Paulson of the First Amendment Center has an op-ed in USA Today about Schwarzenegger v. Entertainment Merchants Association, the violent video games case. Paulson argues that “[i]t’s not the U.S. Supreme Court’s job to decide what’s “appropriate” for kids.” (Thanks to How Appealing’s Howard Bashman for the link.)