With the onslaught of litigation resulting from Target’s data privacy breaches, there is an increased focus on the appropriateness of class action certification, Lexology reports. Courts must sort out which groups to include, making tough calls to include or exclude those who have the potential of suffering an injury, but have not, as of the date of the filing. In the Target breach, for example, decisions will have to be made whether to include cardholders whose information was stolen, but not used as of the date of the case, and those whose information was stolen and used, but were reimbursed for any losses. The blog suggests that the U.S. Supreme Court may provide guidance soon on these issues. In an unrelated case from the Sixth Circuit Court of Appeals, the court is considering whether individuals who have suffered no injury as of the date of filing can be included in a class alleging their washing machines caused mold and mildew.

The U.S. Supreme Court has agreed to review whether warrantless searches of the contents of cell phones violate the Constitution. The justices granted review in two closely watched cases: Riley v. California, stemming from a decision by the California Court of Appeal, and U.S. v. Wurie, an appeal from a decision by the U.S. Court of Appeals for the First Circuit. The Blog of the Legal Times has more.

The U.S. Supreme Court heard arguments yesterday in a case challenging the Massachusetts law that created buffer zones prohibiting protestors from standing within 35 feet from the entrance of an abortion clinic. Protestors sued over the limits on their activities at Planned Parenthood health centers in Boston, Springfield and Worcester, claiming the law is an unconstitutional infringement on free speech. According to the Washington Post, predicting outcomes is difficult because Chief Justice John G. Roberts, who probably is key to the court’s ultimate decision, kept his own counsel. Normally an active participant in the court’s major cases, the justice did not pose a single question to the three lawyers who argued the case.

This week, the high court also refereed the dispute between President Barack Obama and Senate Republicans over the president’s power to temporarily fill high-level positions without Senate approval — a practice that has accelerated in recent years due to partisan gridlock in Congress. The Supreme Court appeared on Monday to lean toward Congress in the fight over presidential recess appointments, politicalticker notes. A ruling by the court against the Obama administration could invalidate hundreds of decisions by the National Labor Relations Board — the federal agency at the center of this legal storm.

U.S. Supreme Court Justice Ruth Bader Ginsberg said Tuesday that Supreme Court justices should work as long as they can and shouldn't manipulate their retirement so a like-minded president can appoint their successor, the Associated Press reports on WRCB Channel 2. Some liberals have recently called on the 80-year-old Ginsburg to retire so President Barack Obama can choose her replacement. If she stays beyond his term, it would leave open the possibility that a Republican would name the liberal justice's successor.

The U.S. Supreme Court will allow the National Security Agency’s surveillance of domestic telephone communication records to continue for now, CNN reports. Without comment yesterday, the justices rejected an appeal from privacy rights group The Electronic Privacy Information Center, which filed its petition directly with the high court claiming a secret federal court improperly authorized the government to collect electronic records.

The U.S Supreme Court heard arguments yesterday involving the collapse of energy giant Enron to determine who is protected from retaliation after blowing the whistle on the company’s misdeeds. In an appeal brought by two former employees of the companies that run the Fidelity family of mutual funds, the workers claimed they faced retaliations after they reported allegations of fraud affecting Fidelity funds. They argued that a provision of the Sarbanes-Oxley Act protects their whistle-blower activity, WRCB News 3 reports.

Retired Supreme Court Justice Sandra Day O’Conner officiated the wedding of a gay couple at the Supreme Court yesterday, the Associated Press reports. Justice Ruth Bader Ginsburg officiated at a weekend ceremony at the court in which two New Yorkers, including a former Ginsburg student at Columbia Law School, were married. Ginsburg has officiated three same-sex weddings. WRCB News 3 has more.

A constitutional showdown over the U.S. government’s warrantless surveillance program may be headed back to the Supreme Court, the Tennessean predicts. For the first time, the Department of Justice (DOJ) notified a criminal defendant that terrorism-related charges against him stemmed from the Foreign Intelligence Surveillance Act. The case of Jamshid Muhtorov, a refugee from Uzbekistan living in Colorado, now appears destined to become the test for whether the program can pass constitutional muster. The DOJ maintains the previously secret program does not violate the Fourth Amendment’s protection against illegal searches because it picks up U.S.-based individuals only while targeting those overseas.

The Supreme Court yesterday refused to hear an appeal asking courts whether the rezoning of metro Nashville schools in 2009 was a pretext for segregation. Frances and Jeffrey Spurlock sued after their daughter was taken out of a predominantly white school with a good academic record and offered the choice of two failing schools. Attorneys for the school system argued the rezoning was not racially motivated but sought to increase parental involvement by putting kids in neighborhood schools. The Memphis Daily News has the story. 

The U.S. Supreme Court heard oral arguments yesterday in the case of McCutcheon v. Federal Election Commission, which tests the constitutionality of limits on overall contributions to federal candidates and to party and political action committees. According to several news outlets covering the proceeding, the court appears ready to strike down the limit on contributions to candidates. Other sources, however said the justices were “sharply divided” and asked a lot of questions about “the nuts and bolts” of campaign finance. The case was brought by Alabama businessman Shaun McCutcheon and the Republican National Committee. The ABA Journal links to stories about the case.