Community
This week in the Community we discuss the legacy of Justice Sandra Day O’Connor. During her tenure, she played a crucial role in many key decisions, but the Court’s more recent precedents have called a number of those holdings into question. This week, we ask your thoughts on what Justice O’Connor’s legacy is and will be.
On Tuesday the Court heard oral arguments in Federal Communications Commission v. Fox Television Stations. The question before the Court is whether the wording of the FCC’s policy banning “fleeting” indecency – including the “s-word”, the “f-word”, and images of nudity – is unconstitutionally vague. (Lyle recapped the argument here.) The case involves two separate proceedings, one of which has previously been before the Court. Three years ago, in Federal Communications Commission v. Fox Television Stations, the Court determined that the FCC had the authority to broaden its policy from banning repeated uses of profane language to banning any such usage; however, the Court did not decide whether the “fleeting indecency” ban was constitutional. Instead, the case returned to the Second Circuit, which held that the policy as a whole was unconstitutional. Applying that ruling in a separate case, the Second Circuit then struck down the use of indecency regulation against images of nudity on TV.
The Court will kick off its January sitting next Monday by hearing oral argument in the Texas redistricting cases. The cases concern the new districting maps enacted by the Texas legislature last year in the aftermath of the 2010 census, which saw the state obtain four additional seats in the House. After the state commenced the pre-clearance process regarding those maps pursuant to Section 5 of the Voting Rights Act, several groups sued in a Texas federal district court to block the maps from being used in the 2012 election cycle. That court granted an interim order blocking the legislatively enacted maps, replacing them with maps of its own. Our discussion topics this week will focus on how the Court should respond, how it likely will respond, and the Voting Rights Act more generally.
In this week’s Community, we’re discussing Christmas and the Court. Topics will include the Court’s Christmas party, its recent Establishment Clause cases, trends in the law regarding the relationship between church and state, and more! We look forward to hearing your views, and wish a happy holiday season to all of our readers.
In January, the Court will hear argument in Sackett v. EPA, No. 10-1062, a case involving governmental enforcement of federal environmental laws against private property owners. The specific questions presented concern the EPA’s use of so-called “administrative compliance orders,” which assert that the property owner is in violation of an environmental law provision and demands that the owner bring itself into compliance, and remedy the effects of the violation, within a certain time. The Court will decide whether the property owner can go to court to challenge the order or if it may only contest the EPA’s factual and legal assertions later, when the EPA sues the property owner civilly or criminally.
The case in itself warrants discussion, but it also provides the Community an opportunity to discuss broader questions regarding the Court’s approach to property rights and how it resolves potential conflict between property rights and environmental protection.
This week’s Community discussion concerns the Court’s Confrontation Clause jurisprudence, which has been one of the more active and heated areas of case law in recent years. Much of the debate stems from the Court’s decision in Crawford v. Washington in 2004, which overruled the prior approach to Confrontation Clause objections adopted in Ohio v. Roberts in 1980. In Roberts, the Court had held that an out-of-court statement could be admitted (consistent with the Confrontation Clause) even if the declarant was unavailable so long as the statement bore “adequate indicia of reliability.”
In an opinion written by Justice Scalia, Crawford shifted the focus of the Clause from judging the out-of-court statement for indicia of reliability to asking whether the statement was “testimonial” in nature, in which case the declarant must be subject to cross-examination. But the Court never precisely defined what makes a statement “testimonial,” resulting in a a great deal of subsequent litigation – the most recent case of which is Williams v. Illinois, set for oral argument in the Court on Tuesday 12/6. We look forward to hearing your views on the Court’s handling of the Clause, Williams v. Illinois, and related issues per the topics posed below.
SPECIAL NOTE: Professor Nesson’s evidence class has obtained permission to post anonymously in this discussion as part of their final.
Today in the Community we return to Arizona v. United States, which we have previously discussed in the Community; several experts also weighed in on the case during our symposium this summer. On December 9, the Justices will consider the petition during their private Conference. If the Justices act on Arizona’s petition, we could know as soon as December 12 whether the Court will hear the case. The question that Arizona has presented in its petition is whether federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt four provisions of its controversial immigration law, S.B. 1070, on their face.
As Tom announced yesterday, we have modified the format of the Community slightly to allow more time on each topic. We will continue discussion of this case for the rest of the week, examining a new subtopic each day.
Today in the Community we take a step back from the Court’s decisions to invite comments on building an appellate practice, including a Supreme Court practice. What are the challenges facing a lawyer or law student trying to break into the field? What kind of experience is necessary or at least useful? Where are the realistic opportunities? Readers should submit not only their comments, but also their questions for members of the appellate bar to consider.
Today in the Community we discuss the relationship between the Court and the media, and specifically appearances by Justices and former Justices in the press. The Justices make many public appearances, including lectures and visits to law schools, but interviews are relatively rare. Below, we welcome your thoughts about the virtues and drawbacks of greater communication between the Court and the media.
Our topic today concerns the Court’s campaign finance jurisprudence and the effect that it has had on the electoral process. As the 2012 election cycle continues to ramp up, more and more attention is being given to the impact of the Court’s historic decision in Citizens United. We’d like to hear your thoughts on the questions below.
