Yesterday at the Court featured not one but two highly anticipated events: the opinion in Salazar v. Buono, an Establishment Clause challenge to a cross in a public park on Establishment Clause grounds; and the oral argument in Doe v. Reed, a case brought by Washington State ballot initiative petition signers trying to conceal their identities. Tony Mauro at the BLT provides an overview of the day at the Court here.
Most of the coverage of the Salazar decision focused on the deep division of the Court and the narrowness of the holding. The Justices produced six separate opinions, as Adam Liptak at the New York Times reports. Jess Bravin of the Wall Street Journal highlights Justice Kennedy’s assertion in his opinion that the decision does not make any “sweeping pronouncements,” while Ashby Jones at the WSJ Law Blog discusses the case's “less-than-riveting impact.” At ACSblog, however, Reverend Barry Lynn expresses concern that the ruling might lay the groundwork for a broader ruling; he suggests that several members of the majority were moving toward the position that “[t]he cross, the central symbol of Christianity for two millennia, isn’t necessarily always religious.” Similarly, Robert Barnes of the Washington Post interprets the opinions of the five more conservative Justices, collectively, as signaling "broader openness to the idea that the Constitution does not require the removal of religious symbols from public land." At NPR, Nina Totenberg interviews experts with different views of the ruling's impact (see the text version here). The Christian Science Monitor spoke with veterans who support the cross, which was intended as a war memorial.
At the Los Angeles Times, David Savage observes that the case was the first separation-of-church-and-state case to come before the Court since the confirmation of Chief Justice Roberts. After summarizing the reasoning of the dissents at Bench Memos, Ed Whelan briefly comments on a few “stark” differences between the opinions. Greg Stohr at Bloomberg and Joan Biskupic at USA Today also have news reports on the opinion. At Crime and Consequences, Kent Scheidegger criticizes the concurrence by Justices Scalia and Thomas, in whose view respondent Buono lacked standing to challenge the cross; Scheidegger complains that “[s]plintered opinions that fail to provide such answers constitute a failure of the institution.”
Assessing yesterday’s oral argument in Doe v. Reed, Dahlia Lithwick at Slate discerned a split between “tough-skinned” Justices, like Justice Scalia, who believe that political acts such as petition signing require “civic courage” and those who believe that political processes ought to be shielded. Like Lithwick’s, recaps of the argument by Marcia Coyle at the National Law Journal, McClatchey, and the Constitutional Law Prof Blog focus on the hard questioning faced by James Bopp, who argued on behalf of the petitioners in the case. The local Seattle Times reports that the Justices focused on the implications of finding a broad constitutional right to privacy that would exempt any petition from disclosure. Lyle Denniston of this blog writes that, after the argument, “the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right.” Adam Liptak of the New York Times, Robert Barnes of the Washington Post, Jess Bravin of the Wall Street Journal, and Joan Biskupic of USA Today agree that the Court appeared skeptical of the petitioners’ argument. While agreeing that the Court looks unlikely to find a broader constitutional right in the case, this blog‘s publisher Tom Goldstein anticipates that the Court may not order disclosure of the signatories of the Referendum 71 petition at issue in Doe. Pointing to a question Justice Kennedy asked during the argument, Rick Hasen at Election Law Blog expresses satisfaction that Kennedy, at least, appeared to accept an “information” interest that may be made in future cases regarding campaign finance disclosure requirements. Because Doe is the last case Justice Stevens is will hear argued, barring any unexpected additions to the Court’s calendar, Jesse Holland of the Associated Press reports on his activity during the argument.
Monday’s oral argument in Rent-A-Center v. Jackson — involving whether an arbitrator can settle the legitimacy of an agreement to arbitrate — gained some late mileage on blogs yesterday. PrawfsBlawg‘s Matt Brodie concludes that the Court is likely to affirm the lower court, thereby denying the arbitrator’s authority. Elizabeth Wydra comments at ACSblog that this ought to be the outcome, while criticizing the Court for what she sees as its generally pro-arbitration stance.
Another review of Bill Barnhart’s and Gene Schlickman's forthcoming biography of John Paul Stevens is at the Christian Science Monitor.
Rick Hasen, Eugene Volokh, and Steve Simpson recently recorded a podcast for the Federalist Society on the Court’s decision in Citizens United. At the Conglomerate, Tamara Piety discusses the likely impact of Citizens United on a series of civil RICO cases filed by the United States against tobacco companies; petitions for certiorari in the case are currently before the Court.
Jonathan Siegel at PrawfsBlawg notes that Bilski v. Kappos, which was argued in the November Sitting, has not yet been decided.
Commentary about the nomination:
Yesterday Newsweek ran a series of posts by experts on each of four potential nominees to replace Justice Stevens: Benjamin Wittes describes Merrick Garland as the "obvious choice" if President Obama wants to "promote his judicial values and re-establish himself . . . as a post-partisan president"; Rob Warden concludes that Diane Wood "has been unusually effective at building consensus with colleagues of all philosophical stripes"; General Barry McCaffey notes that Janet Napolitano would bring a "balanced and experienced perspective" to the Court; Charles Ogletree predicts that, if nominated, Elena Kagan "over the next quarter century would have a profound impact on the direction of the court's jurisprudence"; and Jonathan Alter posits that there is something "larger than life" about Elizabeth Warren.
Yesterday David Savage had a piece in the Los Angeles Times about three of the potential nominees – Garland, Kagan, and Wood – and their views of executive power. Nathan Koppel at the Wall Street Journal discusses Wood’s record of rulings related to abortion, noting that “[l]awyers who have reviewed Judge Wood’s rulings said that while she often leans left on social issues, she typically issues restrained opinions that build on existing law.”
At Balkinization, Rick Pildes predicts that, if the Court strikes down the Sarbanes-Oxley Act (Free Enterprise Fund v. PCAOB) and the conviction of Jeffrey Skilling (Skilling v. United States), in addition to the part of the McCain-Feingold campaign finance law overturned in January, the confirmation process for Stevens’ successor is likely to focus on economic issues rather than the traditional social ones.
The Ninth Justice reports the results of its public opinion poll regarding the criteria that President Obama should use in choosing a nominee. According to a recent FOX News poll, seventy percent of voters indicate that it would not matter to them if there were no Justice with a Protestant background.
In the Los Angeles Times, Meghan Daum comments, tongue-in-cheek, that Wood should be the nominee because she plays the oboe.