The Citizens United opinion is here. The judgment of the D.C. Circuit is reversed, in an opinion of the Court written by Justice Kennedy. Justice Stevens filed a partial dissent, which was read from the bench, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas dissents in part and concurs in part.
The full text of the opinion is below the jump.
Yesterday was a busy day at the Court—with three decisions and two arguments—but the action was upstaged when today’s unexpected sitting was announced. Noted by the New York Times, the Washington Post, and Bloomberg, the special session is assumed to be a natural opportunity for the Court to announce its decision in Citizens United. Why not wait until Monday, the next regularly scheduled public sitting? It could be that “one of the Justices who will be discussing an opinion from the bench plans to be absent on Monday,” explained Lyle at SCOTUSblog. Tony Mauro speculated further at the BLT that the “rare if not unprecedented Thursday session” could be accommodating Justice Stevens, who often travels to Florida after argument sessions conclude.
Commentary
The stunning upset victory for Republicans in Tuesday’s U.S. Senate election in Massachusetts markedly changes the political dynamic for President Obama, and in the process raises serious questions about his options in selecting judicial nominees, including those who might be chosen for the Supreme Court. With more than 93 percent of the votes counted in the Bay State, GOP candidate Scott Brown had a decisive 52-47 percent lead over Democrat Martha Coakley. The race apparently was over early in the evening.
A change in party membership of a single seat in the Senate may not seem like a seismic change in a legislative chamber still numerically dominated by the President’s Democratic allies. But the political atmosphere in the chamber may well change markedly, with the Democrats — and the President — having to tack toward the center, or even rightward, if anything is to get done. And that could strongly influence the choice of a successor for Justice John Paul Stevens, should he retire this summer, as is widely expected.
UPDATED: New material added to 11:29 a.m. (See Erin’s post below for documents.)
The Supreme Court ruled for the first time on Tuesday that the process of selecting a jury to try a criminal case must generally be open to the public, under the Constitution’s Sixth Amendment guarantee of a public trial. While the Court had ruled in 1984 that the questioning of potential jurors must be open under the First Amendment, when the public or press seeks access, it had not extended that right to the Sixth Amendment when the accused seeks openness of that stage of the proceedings.
“There is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has,” the Court said.
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.
The following is a recap of Jerman v. Carlisle (08-1200), which was argued Wednesday morning. Check the Jerman SCOTUSwiki page for more information. [Note: Howe & Russell represent the petitioner in this case, though the author of this post is not affiliated with the law firm.]
Oral argument last Wednesday in No. 08-1200, Jerman v. Carlisle, focused narrowly on legal definitions, legislative history, and Congressional intentions. (You can read more on the background of the case here.)
Below, Scott Johnson, an Akin Gump clerk, analyzes the Court’s decision, handed down on Wednesday, in NRG Power Marketing v. Maine Public Utilities Commission (08-674). To see earlier coverage of the case, check its SCOTUSwiki page. [Note: Akin Gump represented a party to the settlement agreement in the proceedings before FERC, but was not involved in the proceedings in either the D.C. Circuit or the Supreme Court. An attorney from Howe & Russell also filed an amicus brief on behalf of the respondents in the case.]
The Federal Power Act (“FPA”) requires rates for the sale of electricity in interstate commerce to be “just and reasonable.” In United Gas Pipe Line Co. v. Mobile Gas Service Corp. and FPC v. Sierra Pacific Power Co. in 1956 and Morgan Stanley Capital Group v. Pub. Util. Dist. No. 1 of Snohomish County in 2008, the Supreme Court held that the Federal Energy Regulatory Commission (“FERC”) must presume that rates set by freely negotiated wholesale energy contracts meet the “just and reasonable” requirement; FERC thus cannot modify or abrogate such rates unless it concludes that the contract seriously harms the public interest. This presumption is known as the Mobile-Sierra public interest standard of review.
On January 13, 2010, the Supreme Court held, in NRG Power Marketing, LLC v. Maine Public Utilities Commission (No. 08-674), that the Mobile-Sierra public interest standard is not limited to challenges brought by contracting parties, but instead applies to all challenges to contract rates, regardless of the challenger’s identity. The Court’s decision will help shield contract rates from regulatory intervention and reduce the likelihood of success of third-party challenges.
The following is a recap of Tuesday’s oral argument in Abbott v. Abbott (08-645). To see earlier coverage of the case, check its SCOTUSwiki case page. [Note: Howe & Russell represents the petitioner in the case, and a lawyer from that law firm argued on his behalf before the Court.]
During oral argument in Abbott v. Abbott, the Court grappled with complex questions – about the nature of rights, the best interests of children and families, and the interpretation of international treaties – that broke down traditional alignments on the Court. If the argument had a common theme, it was understanding the reasoning behind the Hague Convention on the Civil Aspects of International Child Abduction.
The case is a dispute between respondent Jacquelyn Abbott, who moved her son from Chile to the United States, and her estranged husband, petitioner Timothy Abbott, who wants the child returned to Chile. Mr. Abbott contends that a Chilean law granting him a “ne exeat” right – the right of one parent to veto the other’s removal of their child from the country – amounts to a “right of custody” within the meaning of the Hague Convention. If Mr. Abbott is correct, then the Convention requires that the child be returned to Chile.
One decision, two arguments, and a stay kept Supreme Court journalists and bloggers busy yesterday.
Drawing the most attention was the Court’s five-to-four decision to continue its temporary stay of a plan to broadcast the Proposition 8 trial to five federal courthouses across the country. The New York Times and this blog noted that the extended stay effectively shuts off the possibility that any portion of the trial, which is expected to last only a few weeks, will be broadcast. The Washington Post points out that the Court’s liberal bloc is “joined for the first time in an ideological split by [Justice] Sotomayor.” Ed Whelan extracted some of the key excerpts from the Court’s decision, and Eugene Volokh has two posts at the Volokh Conspiracy critiquing elements of the opinions.
Splitting 5-4, the Supreme Court on Wednesday blocked any television broadcast to the general public of the trial in a San Francisco federal court of the challenge to California’s ban on same-sex marriage. The stay will remain in effect until the Court rules on a coming appeal challenging the TV order. The Court, chastising the trial court for attempting “to change its rules at the eleventh hour,” issued an unsigned 17-page opinion. The ruling, banning TV broadcasting “around the country,” came out nearly 40 minutes after an earlier temporary order blocking TV had technically expired.
As a practical matter, the ruling almost certainly dooms any broadcast coverage of the trial as it goes on. The trial’s length has been estimated variously at two weeks to several weeks. There is no indication that final Supreme Court action on the dispute would be speeded up to the point that the question could be resolved during that brief span of time. And there is nothing in the Court’s Rules that would require filing of formal appeals to challenge the TV viewing in advance of the likely conclusion of the trial.
(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?”
The Supreme Court will hold 70 minutes of oral argument at 10 a.m. Wednesday in American Needle v. National Football League, et al. (08-661). Arguing for American Needle, Inc., will be Glen D. Nager of Jones Day in Washington, and for the NFL will be Gregg H. Levy of Covington and Burling in Washington, each having 30 minutes to argue. The U.S. government, amicus in support of American Needle, has 10 minutes of argument time, with Deputy Solicitor General Malcolm L. Stewart appearing.
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The more professional sports in America acts like hard-nosed Big Business, and the less it seems like an idyllic revival of Olympian competition, the more it risks trouble with the federal antitrust laws. And that evolution has put the Supreme Court, too, in the bleachers. The Court, indeed, has been fascinated with the subject for nearly a century. And, except for its early starry-eyed vision of baseball, it has been a fairly tough cop on the sports antitrust beat. It returns to that patrol in a new case, involving the marketing to the fans of hats, sweatshirts, and other team-identifying gear.
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.
The following argument preview for Abbott v. Abbott (08-645) was written by Jonathan Eisenman, an associate at Akin Gump. Check the Abbott SCOTUSwiki page for updates later. [NOTE: Howe & Russell is counsel for the petitioner in this case. This is a rare circumstance on SCOTUSblog in which the author of case coverage is a lawyer from a law firm involved in the case. This post, however, does not take a position favoring either petitioners or respondents.]
On the heels of the recent return from Brazil of Sean Goldman, the victim of a heavily publicized international child abduction, the Court is set to hear argument in Abbott v. Abbott, a case arising out of the alleged abduction of a child referred to as “A.J.A.” from Chile to the United States. The question in the case is whether one parent’s “ne exeat right” – the right to prevent the child’s departure from the country – is a “right of custody” the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”), so that a child taken in violation of that right must be returned. If the ne exeat clause gives A.J.A.’s father a right of custody under the Convention, then the United States must return A.J.A. to Chile.
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.
Tom Goldstein
Amy Howe
Lyle Denniston
Erin Miller
Anna Christensen
Adam Schlossman
Lisa McElroy
Matt Sundquist
Adam Chandler
Jay Willis
David Stras
Kevin Russell
