Monday round-up

By James Bickford
on Jun 27, 2011 at 8:38 am

The Court is scheduled to issue orders and its final remaining opinions this morning.  Jamie Dupree of the Atlanta Journal Constitution reviews the cases that the Court is expected to decide today.  He opines that “this year, there is no gigantic, historic case for the final week of the Supreme Court term”; by contrast, he notes, next year “could be a Constitutional Blockbuster.”  Mark Sherman of the Associated Press (via Kansas City Star) also reviews the Term (and agrees with Dupree that the Term lacks a “historic” case), while Dahlia Lithwick, Walter Dellinger and Paul Clement conduct their annual Supreme Court roundtable at Slate.

Meanwhile, the Court’s recent decisions are still being debated.  At PrawfsBlawg, Sergio Campos discusses the Court’s opinion in Wal-Mart v. Dukes; he contends that “[t]he problem with requiring a merits determination before granting class certification is that the plaintiffs need class certification in order to develop the merits.”  But at Cato@Liberty, Walter Olson interprets the decision as a welcome “sign that the current Supreme Court leans toward a principle of ‘individualism’ in applying the rules of civil litigation.”  Marcia Coyle of the Blog of Legal Times reports that the Senate Judiciary Committee will hold a hearing this week to consider the effect that the Court’s decisions in Wal-Mart, Janus Capital and AT&T Mobility will have on “Americans’ access to justice and . . . corporate behavior.”  In the Los Angeles Times, David Savage writes that this Term the Court “has once again shown itself to be highly skeptical of large lawsuits against big business, regardless of whether the suits are intended to protect workers, consumers or the environment.”

Continuing the ongoing discussion at Concurring Opinions of the Court’s decision in Turner v. Rogers, in which the Court held that there is no automatic right to counsel for an indigent parent at a civil contempt hearing, Michael Millemann writes that the “majority opinion is useful in my view in organizing the vigorous national efforts, on several complementary fronts, that should and will continue to implement the constitutional right of civil litigants to access to the courts,” while Richard Zorza summarizes and interprets the Court’s opinion.

Brandon Garrett of ACSBlog takes a close look at last week’s decision in Bullcoming v. New Mexico, in which the Court held that the Confrontation Clause prohibits prosecutors from introducing a forensic lab report containing a testimonial certification through the in-court testimony of an analyst who did not sign the document or observe the test.  [Disclosure:  Goldstein, Howe & Russell represented the petitioner in the case.]  He concludes that “in the perspective of the array of problems facing forensics today, its importance quickly fades.”

Also at ACSBlog, Elizabeth Wydra of the Constitutional Accountability Center discusses last week’s decision in PLIVA v. Mensing, in which the Court held that federal regulations governing generic drug manufacturers preempt state-law tort claims alleging a failure to provide adequate warning labels.   She argues that “if a generic drug manufacturer doesn’t even try to comply with federal drug safety law and state failure-to-warn standards, it is difficult to see how it is ‘impossible’ for the manufacturer to comply with both sets of laws.”

The editorial board of the Boston Globe criticizes the Court’s recent decision in Janus Capital Group v. First Derivative Traders, writing that “the 5-4 ruling, which lets Janus and similar companies hide false information in a complicated organization chart, can only undermine public confidence in the mutual fund industry over time.”

At the First Amendment Center, Tony Mauro discusses last week’s decision in Sorrell v. IMS Health, Inc. [Disclosure:  Goldstein, Howe & Russell represents a group of respondents in the case.]  He writes that “[s]omething big happened… in the case of Sorrell v. IMS Health Inc. But it may take awhile to figure out exactly what that something is.”  At Cato@Liberty, Jim Harper explains why, in his view, the Court’s decision “is not the privacy case some are making it out to be, it’s not the outrage some are making it out to be, and it’s not the last word on data use in our society.”And at Forbes, Adam Thierer praises the Court’s decision for “acknowledging that speech is speech.”

Finally, the Justices themselves are also a subject of debate as the Term winds down.  At the Volokh Conspiracy, Randy Barnett writes that “activists have moved from impugning the character of conservative Supreme Court nominees to delegitimating them as sitting justices.”   At his Jost on Justice blog, Ken Jost raises questions about the Court’s handling of judicial ethics, while Paul Horwitz criticizes Barnett’s post at PrawfsBlawg.  Also at Volokh, Jonathan Adler (who links to a recent article in the Washington Post) suggests that Justices Alito and Sotomayor are far from “polar opposites on the Court.”  Finally, on Saturday the Chief Justice spoke at the annual conference of the U.S. Court of Appeals for the Fourth Circuit.  CSPAN has video of his speech.  The Associated Press (via Stamford Advocate) reports that the Chief Justice remains concerned about the potential effect of allowing cameras into the Court.

Briefly:

• Mark Tushnet of Balkinization discusses what he characterizes as an “exceedingly annoying rhetorical trope” deployed in several recent First Amendment opinions.
• In a Washington Post op-ed, Justin Driver argues that the Court might find a constitutional right to same-sex marriage if it is presented with the issue.
• Michael Kirkland of UPI discusses FCC v. Fox, one of the petitions that the Court considered at its Conference last week, in which the Second Circuit deemed the FCC’s determinations of indecency impermissibly vague.