Plans for a legislative response to the Court’s decision in Citizens United v. FEC were much in the news yesterday. Ryan Grim of The Huffington Post reports that “House Democrats are forming a Citizens United task force to decide on the best set of legislative push back[s].” The BLT has a post on yesterday’s House Judiciary subcommittee hearing on the issue, headlined by Harvard’s Laurence Tribe as a witness. In a separate post, the BLT’s David Ingram writes that the idea of banning books looms over the debate: “In two congressional hearings today, advocates for corporate and union spending in campaigns ridiculed the idea that the federal government can ban books, suggesting that they plan to use the specter of extreme censorship to try to block any new legislation.” NPR has a report on yesterday’s hearings, and Yale’s Heather Gerken—author of yesterday’s post on this blog about Justice Kennedy and race—links to her submitted testimony at Balkinization (which is also highlighted at ACSblog).

Read the rest of this entry »

Last week at the Supreme Court of the United States was certainly a huge one, especially given the decision in Citizens United. But one of the things we SCOTUSbloggers love about the Court is that every week brings its own new, interesting developments.

Take Monday’s short-as-can-be decision in Briscoe v. Virginia.  Now, I and others on this blog have discussed the case from any number of angles (see here, for example).  But for those of you watching and reading out there, Monday’s decision may have slipped right by you – that is how unexpected it was to some of us, in the timing at least.   Why?  Well, because the case was only argued two weeks ago, as discussed here.   Usually, it takes the Court a while to reach agreement about the proper outcome of a case, then draft an opinion. As I discussed last week when explaining why we waited for quite some time for the Citizens United decision, these decisions are extremely important and far-reaching.   But in Briscoe, the Court decided the case quickly and definitively in what Richard Friedman, one of the attorneys in the case, has called a G . . . . VR.

Read the rest of this entry »

Commentators continue to weigh in on last Thursday’s decision in Citizens United v. FEC.  In Slate, Barry Friedman and Dahlia Lithwick characterize the timing of the decision as “terrible” in light of the nation’s economic woes, and they describe the outcome as somewhat unexpected given the conservative-leaning Court’s recent decisions to uphold the Voting Rights Act (in NAMUDNO) and disparate-impact tests (in Ricci).  Kenneth Jost also criticizes the Court’s decision as overly broad, opining that such expansive decisions should be reserved for instances in which the Court needs to protected endangered constitutional rights.  And at The New York Times, Adam Liptak describes Justice Stevens’s “full-throated” and disappointed dissent, noting that his recent opinions have been united by the theme that the Court has “lost touch with fundamental notions of fair play.”

Read the rest of this entry »

(UPDATE: Further new material added at 1:32 p.m.)

Over the vigorous dissents of two Justices, the Supreme Court refused on Monday to clarify whether individuals in custody by the U.S. government may rely on the protections of the Geneva Convention for prisoners of war — an issue left at least partly unresolved by the Supreme Court’s ruling in 2008 in Boumediene v. Bush and earlier detainee cases. The denial came as the Court appeared to clear the way for the extradition of the former Panamaian dictator, Gen. Manuel Antonio Noriega, to France for a trial on illegal drug charges.

Read the rest of this entry »

In the wake of last week’s oral argument in United States v. Comstock, an opinion piece at the Wall Street Journal speculates on the ramifications of a possible reversal by the Court; allowing the federal government to commit sex offenders in the name of public safety, it writes, could “sanction the notion that any appealing idea may be justified as necessary and proper.”

Read the rest of this entry »

Below, Professor Lisa McElroy continues her coverage from the previous post of last week on SCOTUSblog and at the Court.

In Part II of my Plain English posts for the week, we will take a look at the major cases the Court heard, decided, or granted this week.

First, the Prop 8 controversy.  As you may know, in June, California’s Supreme Court granted same-sex couples the right to marry under the California Constitution.  However, in November, California voters adopted an initiative called Proposition 8, eliminating that right.  Now some advocates of same-sex marriage are suing in federal court in California, arguing that Prop 8 violates the federal constitution and seeking to reinstate the right for gays and lesbians to marry in California.

Read the rest of this entry »

(Restored from Monday post)

Analysis

When the author of a Supreme Court opinion insists that the ruling had already decided an issue raised in a sequel case, the obvious question is: why was the second one granted?  Justice Antonin Scalia, the author of last June’s controversial, 5-4 decision in Melendez-Diaz v. Massachusetts, had an answer on Monday when the Court heard Briscoe, et al., v. Virginia:  “Why is this case here except as an opportunity to upset Melendez-Diaz?”

Read the rest of this entry »

The beginning of the much-publicized District Court trial of Proposition 8 leads Supreme Court coverage early this week.  NPR and the WSJ run extensive previews of the California trial.  Both feature speculation on how the current Court might rule on the issue should it reach that stage of the appeals process; NPR’s coverage notes that while opponents of Prop. 8 are concerned that the “conservative-leaning Supreme Court might be reluctant to strike [it] down,” the measure’s proponents worry about the matter passing through the more liberal Ninth Circuit.

Read the rest of this entry »

Tony Mauro of The National Law Journal observes that, at the Supreme Court, “there is a sense that the term is just now beginning to take shape.”  He previews the more anticipated upcoming cases scheduled for this term, and notes that the Court may release an opinion in Citizens United v. FEC as early as this Tuesday.  The Washington Post also reports that a decision in Citizens United could soon be released, explaining that, if the majority opinion overturns current campaign finance laws, some Justices may be drafting extended dissents, and this could explain the current delay.  Alternatively, it may be that no opinion has both provided clear guidance on the future of campaign finance laws, and drawn a majority of votes on the Court.   The Huffington Post also covers the case.

On the subject of campaign financing and Citizens United, the New York Times examines current election-cycle fundraising and spending, noting that although the Court has not yet released an opinion, “Democrats in the House and the Senate have begun lamenting its expected result” – cutting away restrictions on campaign financing  The Times tabulates recent campaign spending by both Democrats and Republicans, and also writes about the A.F.L.-C.I.O and N.R.A.’s interests in the case.

Read the rest of this entry »

Welcome back from the holiday recess!  This week the Court will release opinions on both Tuesday and Wednesday.

The Court will also hear oral arguments in the following cases:

Monday, Jan. 11:

1. Alabama v. North Carolina (132 Original) — enforcement of a regional pact on disposal of radioactive wastes
2. Briscoe v. Virginia (07-11191) — Confrontation Clause, Melendez-Diaz

Tuesday, Jan. 12:

1. United States v. Comstock (08-1224) — the constitutionality of continued imprisonment of a sex offender, after that individual has completed serving a prison sentence for the crimes
2. Abbott v. Abbott (08-645) — scope of “rights of custody” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction

Wednesday, Jan. 13:

1. American Needle Inc. v. NFL (08-661) — the National Football League, its teams, and their licensing agent’s function as a single entity for purposes of the Sherman Act
2. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (08-1200) — application of “bona fide error” defense of the Fair Debt Collection Practices Act to mistakes of law

The next private conference of the Justices is scheduled for this Friday, January 15.

Finally, merits briefs in the cases listed below the jump are due this week.

Read the rest of this entry »

The following is a “plain English” summary of the Court’s and blog’s activities last week by Professor Lisa McElroy of Drexel University’s law school.

Happy New Year!   Although the Court did not get busy with official business until the Conference on January 8, there was plenty going on at 1 First Street, N.E., this week, as well as in some of the courts of appeals.  Most of the cases the Supreme Court hears start in the federal district courts or federal agencies, go to the federal courts of appeals (also known as circuit courts), and then go on from there to the Supreme Court, although some are cases from state courts presenting questions of federal law.

On Monday, the Court published the list of oral arguments for the “March sitting.”  The Supreme Court typically hears oral argument on Mondays, Tuesdays, and Wednesdays for two weeks each month.  Most arguments take place in the mornings between 10:00 and 12:00, and each case is usually allotted an hour (thirty minutes per side).  However, arguments occasionally take place in the afternoon as well and some cases (like this Monday’s original action, Alabama v. North Carolina) are granted extended argument time.

Also on Monday, Lyle wrote about the dismissal of a case addressing whether prosecutors are liable for money damages if they purposefully arrange for false testimony.  Why did the Supreme Court dismiss the case?  Well, even though the parties had already briefed and argued the case, they agreed to settle, which they can do at any time.  Because the Constitution says that federal courts can only hear an actual “case” or “controversy,” as opposed to settled lawsuits, the Supreme Court had to dismiss the case.  Some scholars have been upset that the Court did not get the chance to decide the case because it presented such an important issue.

Read the rest of this entry »

The Supreme Court will hear oral argument at 11:30 a.m. Monday on Briscoe, et al., v. Virginia (07-11191).  Arguing for Mark A. Briscoe and Sheldon A. Cypress will be Richard D. Friedman, a law professor at the University of Michigan.  Virginia’s state Solicitor General, Stephen R. McCullough, will argue for Virginia, with 20 minutes allotted.  For the federal government, as amicus supporting Virginia, and allotted 10 minutes, will be Leondra R. Kruger, an assistant to the U.S. Solicitor General.  (Briefs and other documents in the case can be found at ScotusWiki, at this link.)

———————

Less than seven months after the Supreme Court made one of the most controversial rulings in recent years on criminal law, Melendez-Diaz v. Massachusetts, the Justices have the option of reconsidering that decision — and, in fact, 26 states and the District of Columbia have urged that the decision be overruled outright.  In Briscoe, et al., v. Virginia, the Court at least will consider limiting the scope of the decision last June, which barred crime lab reports from being offered as criminal evidence unless a scientist who prepared such a report is available for questioning by the defense.  The specific issue now is whether the prosecution or defense must take the initiative to summon the scientist for questioning — a seemingly narrow issue, but one that defense lawyers who appealed the case argued could have a strong impact on the right won in Melendez-Diaz.

Read the rest of this entry »

American Needle v. NFL, in which the Court will consider whether the National Football League and its teams are one entity for purposes of federal antitrust law, is getting a lot of attention prior to its oral argument next Wednesday. The January edition of the ABA Journal asserts that a ruling in favor of the league would give it – as well as Major League Baseball, the National Basketball Association, and the National Hockey League – “almost total control over nearly every aspect of operations on and off the field, including repeated disputes over franchise location, players union relations, individual player contracts and televised delivery of games.”  On the other hand, Tom Van Riper at Forbes argues that such a ruling is unlikely to cause major ripples in sports, especially for the players’ unions; Van Riper notes that the Major League Baseball Association has enjoyed an antitrust exemption for years without significant loss to its players. The New York Times also previews the case.

Read the rest of this entry »

The following post is our first by Professor Lisa McElroy, of Drexel University’s law school.  Lisa has agreed to write Plain English posts for us on occasion that will recap the blog’s recent activity in terms understandable by non-lawyers.

It has been quiet at the Supreme Court this and last week, because the Court is on its Winter break.  Nothing official will be happening at the Court until January 8, when the Justices will meet for their private “Conference” to discuss pending petitions.  When we next hear from the Court will depend on its plans for those petitions.  If they intend to hear argument in those cases this Term, they may issue an Orders List that afternoon listing the granted cases.  Otherwise, they will announce the Orders on Monday the 11th.

One interesting detail about Conference:  The most junior justice sits nearest the exit and is responsible for answering the door, sending messages out, and so on.  Justice Breyer held this unenvied post for longer than almost any other Justice in history – over eleven years.  (He missed setting the record by only twenty-nine days but was saved by Justice Alito’s appointment).

Read the rest of this entry »

Nolo’s Employment Law Blog discusses City of Ontario v. Quon, the case in which the Court will examine whether text messages sent to or from a government-owned pager are protected by the right to privacy.  Jessica Dweck at Slate’s Double XX blog notes that, as a judge on the Second Circuit, Justice Sotomayor once ruled in favor of an employer who searched a worker’s computer to investigate potential misconduct, and she speculates that Justice Sotomayor will similarly vote in the government’s favor in Quon.  Speaking of Justice Sotomayor, the AP reports on her trip to Puerto Rico, where she has been surprised by her celebrity, but disappointed that her image has been commercialized.

In the Washington Post, Robert Barnes and Maria Glod report on a new study by the Death Penalty Information Center indicating that fewer new death sentences were handed out last year than in any other year since 1976, when the death penalty was reinstated.   According to legal experts cited in the article, recent Supreme Court rulings – including two barring the execution of juveniles and the mentally retarded – have contributed to the decline.   Download the full report here.

Read the rest of this entry »