Tuesday round-up

SARAH ERICKSON-MUSCHKO JUL 2, 2013 10:32 AM

Yesterday’s coverage continues to feature commentary on and analyses of the final opinions of the Term.

At this blog, Marty Lederman discusses the impact of last week’s decision in United States v. Windsor (striking down a provision of the Defense of Marriage Act) on pending cases in Michigan challenging a recently enacted state statute and a provision in the state constitution that, taken together, effectively limit benefits to married opposite-sex couples.  In an op-ed for the U-T San Diego, Harold Johnson criticizes the Court’s ruling in Hollingsworth v. Perry on the ground that it “gives politicians an indirect, backdoor veto – the power to pull the plug on a successful ballot measure simply by leaving it undefended in court.” USA Today’s Susan Page reports on recent polling figures in the wake of the Court’s decisions in Windsor and Hollingsworth showing unprecedented levels of support for legally recognizing same-sex marriages.

Also at this blog, Tejinder Singh reports on last week’s decision in Koontz v. St. Johns River Water Management District, in which the Court held that the government must show a nexus and rough proportionality between its demand on the landowner and the effects of the proposed land use whenever it engages in land-use regulation, while Ronald Mann analyzes the Court’s opinion in Mutual Pharmaceutical Co. v. Bartlett, holding that state-law design-defect claims which turn on the adequacy of a drug’s warnings are pre-empted by federal law.

Walter Olson of the Cato Institute (audio) and Deborah Wald of California Lawyer discuss the legal implications of the Court’s holding in Adoptive Couple v. Baby Girl, in which the Court held that the Indian Child Welfare Act does not bar the termination of the biological father’s parental rights. At PrawfsBlawg, Cynthia Godsoe and Kim Pearson posted the last part of a four-part series discussing the decision.

Other commentary focused on the Court’s holding in Shelby County v. Holder, in which the divided Court invalidated Section 4 of the Voting Rights Act, which established the formula used to determine which state and local governments are covered by Section 5’s preclearance requirement. Jonathan Wood at PLF Liberty Blog commends the Court’s application of the equal sovereignty principle as “improv[ing] the political process and promot[ing] a more effective federalism,” while Margaret Russell of California Lawyer warns that “the [societal] effects of the decision are immediate and – without congressional intervention – will be long-term and monumental.”

Several reports examined themes in the opinions of this Term as a whole. In his column for Bloomberg View, Noah Feldman discusses Justice Scalia’s recent criticism of “the younger conservatives who were supposed to be the heirs to his mantle: Chief Justice John Roberts . . . and Justice Samuel Alito.” Writing for Slate, Richard Hasen discusses the strategy that could explain the decision by some of the liberal Justices to join the majority opinions restricting affirmative action and opening the door to attacks on federal voting laws. MoloLamken published its annual Supreme Court Business Briefing, summarizing the Court’s decisions this term that affect corporations doing business in the United States and abroad, while Leland Beck summarizes this Term’s administrative law cases at Federal Regulations Advisor. At ThinkProgress, Ian Millhiser discusses the implications of the Court’s recent Title VII and arbitration rulings for workers.

Briefly:

• As Lyle Denniston reports at this blog, yesterday the Court announced that Scott Harris, the Court’s legal counsel, will succeed William Suter as the Clerk of Court on September 1.
• Also at this blog, Lyle reports that a cable television company in New York has asked the Court to order the National Labor Relations Board to cease pursuing labor disputes until the constitutionality of the Board’s membership is resolved. The request follows the Court’s announcement last week that it had granted review in National Labor Relations Board v. Noel Canning, a challenge to the constitutionality of the president’s recess appointments to the NLRB.
• Ilya Shapiro reports on the amicus briefs filed on behalf of the Cato Institute in Kaley v. United States, in which the Court will consider whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges (here) and Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions (here).
• Jessica Gresko of the Associated Press reports that as of Monday, the Court has amended its rulebook to require those arguing before the Court to be lawyers and discusses the case of the last non-lawyer to argue before the Court in 1978.

Disclosures: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among on an amicus brief in support of the respondent in Shelby County v. Holder; Tejinder Singh of the law firm Goldstein & Russell, P.C. was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Hollingsworth v. Perry; Kevin Russell of the law firm Goldstein & Russell, P.C. was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in United States v. Windsor.

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