Tuesday round-up

By Nabiha Syed
on Apr 26, 2011 at 8:05 am

Coverage of the Court’s last week of oral argument continues to focus on today’s argument in Sorrell v. IMS Health, as James mentioned yesterday (and in which Goldstein, Howe and Russell represents one set of respondents). In Sorrell, the Justices will consider whether the First Amendment allows a state to bar the sale or marketing of information derived from nonpublic prescription records. Frank Pasquale of Balkinization explains that “while IMS v. Sorrell is often characterized as a direct clash between privacy and the First Amendment, it is better characterized as a more complex struggle over the ethical conduct of commerce, medicine, and marketing”; he argues that the “secrecy of the data mining business itself should weigh heavily in the minds of the justices as they consider Sorrell.” At Forbes, Cory L. Andrews opines that because “Vermont’s academic detailers are free to use such data, while drug companies cannot,” the law should be struck down as unconstitutional. Nina Totenberg of NPR summarizes the competing arguments in the case, as well as possible implications, while at BBCNews, Andrew Cohen provides background on the issue of data mining.

Other coverage of the Court centered upon the Court’s denial of cert. before judgment in Virginia v. Sebelius, Virginia’s challenge to the Patient Protection and Affordable Care Act.  As JURIST, AP, USAToday, Los Angeles Times, Washington Post, and Politico all note, the denial was expected; the Court rarely intervenes before an issue has been addressed by the lower courts. Adam Liptak of the New York Times notes that it “appears almost certain that all nine justices will hear cases challenging the law when they reach the court in ordinary course, probably in the term that starts in October”; on that note, Ilya Shapiro at Cato@Liberty observes that “there does not as yet seem to be a ‘smoking gun’” that would require Justice Kagan to recuse herself.   The Christian Science Monitor and CNN also discuss the denial, as does Lyle Denniston of this blog.

As Lyle also reports, yesterday the Court did not act on the petition in Khadr v. Obama, the one remaining Guantanamo detainee case on its docket. And the Court heard oral argument yesterday in two cases, Erica P. John Fund v. Halliburton and McNeill v. United States; JURIST has coverage of both cases, while the Conglomerate offers a round-table on questions raised by Erica P. John Fund.

Briefly:

• In an opinion piece at USAToday, Richard W. Garnett explains why Hosanna-Tabor Church v. EEOC “could prove to be among the court’s most important religious-liberty cases in many years.”
• David Hudson of the First Amendment Center argues that Chief Justice Roberts “has proven to be more of a First Amendment defender — at least in certain contexts — than many imagined.”
• The editorial board of the Wall Street Journal observes that the theory of climate tort in last week’s American Electric Power Co. v. Connecticut was so “unconvincing… that not a single Justice seemed persuaded when the Supreme Court heard oral arguments last Tuesday—even some of the liberals questioned the theory with Scalia-like vigor.”
• And finally, Steven Schwinn of this blog analyzes last week’s decision in Virginia Office of Protection and Advocacy v. Stewart.