Thursday round-up

By Cormac Early
on Oct 4, 2012 at 10:05 am

The Court heard argument in two cases yesterday.  In Johnson v. Williams, the Court is considering whether a habeas petitioner’s federal claim has been adjudicated “on the merits” for the purposes of 22 U.S.C. § 2254(d) when a state court denies relief without explicitly referring to a federal law claim raised by the petitioner.  Lyle posted his oral argument recap here; Tom posted his follow-up reactions here.  Jonathan Stempel has further coverage for Reuters (via WHTC).  Kent Scheidegger’s thoughts on the argument are available at the Crime and Consequences blog.

The Court also heard argument in Arkansas Game and Fish Commission v. United States, which raises the question of when government actions that repeatedly cause flooding on private property constitute a taking.  Lyle’s argument recap can be found here.  Ilya Somin has posted his reactions over at the Volokh Conspiracy.  Further coverage comes from Robert Barnes of the Washington Post, Bill Mears of CNN, and Jonathan Stempel of Reuters (via the Chicago Tribune).

Adam Liptak has coverage of both arguments – and a common theme between them – for the New York Times, and Kali has posted both transcripts here. 

Next Wednesday’s argument in Fisher v. University of Texas at Austin, the challenge to race-based affirmative action at public universities, continues to drive coverage.  Over at ACSblog, Joshua Civin argues that the university’s use of race in admissions promotes the individual dignity of students, while Justin Pope of the Associated Press reports on a study asserting that race-neutral alternatives have succeeded in bringing “meaningful diversity” to public universities in “at least some” of the nine states that ban affirmative action. Over at the Constitutional Accountability Center, David Gans and Josh Blackman have posted a video in which they discuss their brief in support of the university, while Sidney S. Rosdeitcher and James J. Beha II have posted an argument preview for the Brennan Center for Justice.

Briefly:

• John Elwood has posted the latest edition of his Relist (and Hold) Watch series for this blog.
• For this blog, Howard Wasserman has a recap of Tuesday’s argument in Kloeckner v. Solis, which raises the issue of whether the Federal Circuit or a U.S. District Court has jurisdiction when the Merit Systems Protection Board decides a case involving disputed termination and unlawful discrimination claims without resolving the discrimination issue.
• Ronald Mann has a recap of Tuesday’s argument in United States v. Bormes, in which the Court will decide whether the Little Tucker Act, 28 U.S.C. §1346(a)(2), waives the sovereign immunity of the United States for damages actions arising out of violations of the Fair Credit Reporting Act, for this blog.
• Anthony J. Franze and R. Reeves Anderson have an article in the National Law Journal discussing the Court’s reliance on amicus briefs in the last Term.
• In the New Yorker’s Daily Comment blog, Jeffrey Toobin argues that the outcomes of four state ballot initiatives involving same-sex marriage in November will affect the Court’s decision-making in its pending marriage cases.
• Reynolds Holding and Richard Beales of Reuters Breakingviews report that Supreme Court clerks can stand to make more money over the long run if they forgo lucrative clerkship bonuses at large law firms and instead start their careers working for the government.
• Chris Geidner of Buzzfeed has produced a list of “12 Reasons to Pay Attention to the Supreme Court This Year.”
• For her On The Case blog at Thompson Reuters, Alison Frankl reports on Standard Fire Insurance Co. v. Knowles, in which the Court will decide whether the named plaintiff in a state class action case can defeat removal to federal court under the Class Action Fairness Act by stipulating that the damages he seeks on behalf of absent class members will not exceed $5 million.
• Over at ACSblog, Jeremy Leaming reports on a new film by the Alliance for Justice called “Unequal Justice: The Relentless Rise of the 1% Court,” which argues that the Roberts Court is excessively pro-business.
• Don Tartaglione of the Blog of Legal Times reports on a new poll concluding that two thirds of voters say that Supreme Court appointments will be an important factor in deciding their vote in the presidential election, and that voters believe President Obama would choose better justices than Mitt Romney.
• Over at Concurring Opinions, Gerard Magliocca notes that the audio recording of the opinion announcement in the healthcare case is now available via Oyez.
• Brian Wolfman of the Consumer Law and Policy blog highlights a recent report by the New York City Bar Association which argues that the Justices should have to explain publicly their decisions on recusal requests and motions to disqualify.
• Darryl Brown has a post at PrawfsBlawg considering the possibility of “geographic separation of powers,” by moving the Court to “a small regional city far from D.C.”
• Also at PrawfsBlawg, Howard Wasserman has a post arguing that the oral arguments in both Kiobel v. Royal Dutch Petroleum (the Alien Tort Statute case) and Lozman v. City fo Riviera Beach, Florida (the floating home case), confused the issues of jurisdiction and cause of action.
• At Lawfare, Wells Bennett comments on the Court’s decision to deny cert in Suleiman v. Obama, a Gauntánamo Bay habeas case.