Commentary on the Citizens United decision lingers in the headlines of Supreme Court coverage.
The topic was revived as a news item by President Obama's sharp criticism of the decision in his State of the Union address last night. As the Huffington Post and Politico report (with video clips), six of the Justices were in the audience; one of them, Justice Alito, was seen to mouth the reply, "No, that's not right." At the Volokh Conspiracy, Orin Kerr notes that, after the awkwardness of that moment, "it will be interesting to see how many Justices attend [the SOTU] next year"; in any event, he suggests that perhaps they should not attend at all. At the BLT, Tony Mauro offers two historical angles on the event. First, he notes that attendance by the Justices has been sporadic. Second, the State of the Union addresses have mentioned the Supreme Court by name only nine times, and even then rarely in criticism. In an online column for the New York Times, Linda Greenhouse suggests that what Justice Alito found "not right" was Obama's statement that the ruling "reversed over a century of law" "“ a charge commonly made in the media "“ when in fact the early twentieth-century law banning direct political contributions by corporations was not at issue in Citizens. Elsewhere, the New York Times briefly mentions another inaccuracy in the president's remarks about the Court's ruling.
The Atlanta Journal-Constitution hosts a discussion of the campaign finance decision, with Senator Mitch McConnell and law professor Floyd Abrams supporting the ruling and Fred Wertheimer, president of Democracy 21, criticizing it. A Newsweek opinion article by Jonathan Alter accuses the conservative Justices of hypocrisy: in his view, they departed from their usual position of judicial restraint with regard to the states when they struck down corporate campaign spending laws in twenty-two states. On the other side, George Will at the Washington Post argues that the heated criticism of Citizens is hyperbolic and based on inaccurate predictions about the number and type of corporations that will likely take advantage of the ruling, while briefly shunning the idea of public election financing as "wildly unpopular."
The AP (via the Washington Post) notes that, in light of Citizens, the conservative legal foundation the James Madison Center for Free Speech has urged the F.E.C. to formally and quickly throw out its rules limiting expenditures so that corporations and unions can start spending for the next election cycle.
As reported by this blog's Lyle Denniston, USAToday and the AP (via ABC News), yesterday the D.C. Circuit heard the first major test of the Citizens decision in a case involving a political advocacy group, SpeechNow. As the USAToday article notes, the same Court last year struck down the $5,000 cap on individual contributions by EMILY's List, a group that supports abortion rights.
Several other Court cases made it into the news yesterday and this morning. The BLT reports that Senator Arlen Specter has filed an amicus brief in Samantar v. Yousuf, a case testing whether foreign citizens can bring civil claims of torture in U.S. courts. Senator Specter claims that Congress passed the statute at issue "“ the Torture Victim Protection Act of 1991 "“to "provide redress for egregious acts that infringe human rights and are an affront to human dignity." [Disclosure: Akin Gump represents the respondent in this case.]
As a guest on the Peter Jennings Blog, Lyle Denniston, the reporter for this blog, commented on the recent per curiam opinion in Porter v. McCollum, which promoted Post-Traumatic Stress Syndrome for veterans as an argument against the death penalty in a capital case.
The Volokh Conspiracy again covers the Court's denial of cert. in Noriega v. Pastrana, this time with a post by John Elwood on Justice Thomas's restraint from commenting on the merits of the case in his dissent, which Elwood thinks may have been an attempt to win other Justices to his side before cert. was denied.
Justice O'Connor congratulated winners in Above the Law's competition to play Do I Have A Right?, one of the online games at Justice O'Connor's civic education program, Our Courts.
Briefly: The Christian Science Monitor analyzes the likelihood that the California Prop. 8 case will be appealed to the Supreme Court. Right Side News reports on the Court's denial last week of a case that blocked the Federal Energy Regulatory Commission (FERC) from asserting its power to override transmission decisions made by states. The AP (via the L.A. Times) has a piece on the State of Delaware's appeal to the Court of restrictions on its sports-betting lottery.