Thursday round-up

By Amanda Rice
on Apr 21, 2011 at 8:13 am

On Wednesday, the Court issued its decision in Sossamon v. Texas and heard oral argument in United States v. Jicarilla Apache Nation.

In Sossamon, the Court held that states do not consent to waive their sovereign immunity to private lawsuits for money damages under RLUIPA when they accept federal funding. Justice Thomas wrote for the majority opinion, and Justice Sotomayor filed a dissent that was joined by Justice Breyer. Justice Kagan was recused. The opinion is available here. SCOTUSblog’s own Lyle Denniston notes that “the opinion, somewhat threateningly, implied that there may be a significant question about Congress’s authority under its spending or commerce regulation power even to pass the kind of law at issue in this case: a law seeking to compel states to respect the religious rights of persons in prisons and other state-run institutions.” The ABA Journal, UPI,  Courthouse News Service, JURIST, Crime and Consequences, Sentencing Law and Policy, and the Associated Press have additional coverage of the decision.  [Disclosure:  Goldstein, Howe & Russell represented petitioner Harvey Sossamon in the case.]

In Jicarilla Apache, the Court is considering whether the attorney-client privilege allows the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe. JURIST has coverage of the argument, and the transcript is available here.

Monday’s oral argument in American Electric Power Co., Inc. v. Connecticut continues to generate commentary. At ACSBlog, Douglas Kysar suggests that the Justices’ “focus[] on displacement in their questioning, rather than on standing or political question” is “good news for environmentalists and other progressives.” He predicts that “[w]e may lose this one, but at least we will lose in the least bad way.” Alice Kaswan discusses the displacement argument at CPRBlog, while Walter Olson defends the political question argument at Cato @ Liberty,. The Volokh Conspiracy’s Jonathan Adler identifies two problems for the state parties assuming “the case is not dismissed on Article III standing or political question grounds.” The National Review Online also has coverage.

Briefly:

• The Associated Press notes that “Justice Elena Kagan’s leather backed chair was empty this week for the 26th and final time this term,” and points out that “Kagan’s absence has been important only once in the 19 cases the court has decided without her” so far.
• At her Opinionator blog for the New York Times, Linda Greenhouse observes that, unlike at this time of year during the last two terms, “all seems blissfully quiet on the Supreme Court vacancy front.”
• Dorf on Law’s Mike Dorf discusses Tuesday’s decision in Virginia Office for Protection and Advocacy v .Stewart, in which the Court held that Ex Parte Young permits a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state. Dorf concludes that it is “[a]n interesting little case that hints at bigger issues than it decides.”
• At her Court Beat blog, Joan Biskupic writes that an “Antonin Scalia” requested to follow her on Twitter and reminisces about “other fake Scalias that have come [her] way over the years.”
• Glenn Lammi of WLF’s Legal Pulse highlights the amicus briefs filed in Sorrell v. IMS Health Inc., the prescription drug records case in which the Court will hear argument next Tuesday.  [Disclosure:  Goldstein, Howe & Russell represents three of the respondents in Sorrell.]