George Will, in his column in the Washington Post, makes the case that no one should attend the State of the Union, given that the Constitution does not require a public address and that, in Will’s view, the event “gives presidents delusions of omnipotence” that damage the balance of power between the three branches.  On the other side of the debate, Frank James at NPR’s The Two-Way blog argues that the justices – who, in his view, “are generally treated like the immortals on Mt. Olympus” – should attend the State of the Union to “face the music” before the public for the Court’s decisions.

Right after the Chief Justice’s remarks, Nina Totenberg of NPR described the history of Justices attending (or failing to attend) the State of the Union and of past addresses criticizing the Court.

Nathan Koppel at the WSJ Law Blog announces “Citizens United, Round Three” after Democratic Senate Majority Leader Harry Reid pointedly criticized the Chief Justice: “’Do you think John Roberts knows or cares how people get elected?’ Reid said, adding that the justices on the court lack understanding of the practical impact of their decisions.

Commentary on the impact of the Citizens ruling continues.  Doug Kendall of the Constitutional Accountability Center writes at the Huffington Post that the Citizens United decision has “really changed everything, at least in terms of the debate over the future of the courts”; among other things, he notes, President Obama has picked up the pace of judicial nominations.  In light of the Citizens ruling, John C. Bogle at BusinessWeek urges corporations to adopt a formal requirement that seventy-five percent of their shareholders approve their political expenditures.

In her online column for the New York Times, Linda Greenhouse discusses what she characterizes as the “impressive consistency” displayed by Justice Thomas with regard to his view the Eighth Amendment applies to the cruel and unusual nature of sentences alone, and does not extend to conditions within the prison.

Robert Barnes puts Justice Ruth Bader Ginsburg on the record at the Washington Post as one more judge calling for the end of state judicial elections. Ginsburg made those remarks on a panel at the recent meeting of the National Association of Women Judges.  Also on the panel was Justice Sonia Sotomayor, who told audience members that since her arrival on the Court she had been most surprised by the collegiality that she found.

The Massachusetts Supreme Court on Wednesday upheld state gun trigger-lock laws.  The Court’s opinion deemed the 1876 Cruikshank case, in which the U.S. Supreme Court declined to apply the Second Amendment to restrict state gun control laws, “the law of the land until the Supreme Court decides otherwise, and we are therefore bound by them.’’ The Boston Globe reports on the ruling, while the New York Times editorial board endorses it.

ACSblog provides an overview of an issue brief released on Tuesday regarding life without parole for juveniles – an issue before the Court this Term in Graham v. Florida and Sullivan v. Florida.  The brief’s authors conclude that life imprisonment without the possibility of parole “has little support in behavioral scientific research, does not strengthen public safety, and runs counter to international norms.”

Briefly:

• Gerald Magliocca at Concurring Opinions reflects on what standards should be used to establish whether the judging philosophy of a judicial nominee is “outside the mainstream.”
• On this blog, Kevin Russell writes about the Court’s call for the views of the Solicitor General in two ERISA petitions arising from the case Amara v. CIGNA Corp.
• At the Legal Theory Blog, Lawrence Solum flags a recent paper by Professors David Stras and James Spriggs on when the Court issues plurality opinions (the paper is available online here).
• At the WSJ Law Blog, Jess Bravin has a post on the McDonald’s menu preferences of several current and past Justices, elicited in response to a query by a prankster posing as a ten-year-old child.  Responses ranged from those of Justices Ginsburg and Souter, who described themselves as (at best) infrequent visitors of the fast food chain, to that of retired Justice Blackmun, who responded that “almost anything they put out is acceptable.”
• NPR reports that Kansas City, Missouri, is closing twenty-nine of sixty-one schools to avoid desegregation lawsuits springing out of the Supreme Court’s 1954 case Brown v. Board of Education.

Newspapers and blogs remain interested in Monday’s trio of cert. grants: NASA v. Nelson, a case about information privacy and government background checks; Snyder v. Phelps, a case about anti-gay funeral protesting; and Bruesewitz v. Wyeth, a case about federal preemption and vaccines.  At Concurring Opinions, Daniel Solove has a detailed two-part analysis of the issues at stake in NASA.  He raises the possibility that the Court will eliminate a right to information privacy that is “recognized by the vast majority of federal circuit courts” and argues that it should not do so.  Wired and the Pasadena Star-News also take note of NASA.

The Kansas City Star and the Wichita Eagle offer local background on the protesters whose demonstrations are at issue in Snyder.  At the WSJ Law Blog, Ashby Jones labels the case as “a contender as one of the more interesting cases of the Supreme Court’s 2010-11 term.”  For Bruesewitz, the Pittsburgh Post-Gazette and the Pittsburgh Tribune-Review each offer a local account of the fifteen-year legal battle over a children’s vaccine that may have given the petitioners’ daughter a chronic seizure disorder.  Meanwhile, TV Week’s TVBizwire blog notes that on Monday the Court denied a challenge by a federal death row inmate to a federal prison policy—adopted after Timothy McVeigh appeared on “60 Minutes” in 2000—that bars death row inmates from being interviewed in person.  The petition had been supported by many news organizations.

There are two new articles about Justice Scalia’s comments during last week’s argument in the Second Amendment case McDonald v. City of Chicago. Saul Cornell, Justin Florence, and Matthew Shors have a piece in Slate explaining that localities have exercised a long-standing authority to regulate guns.  They argue that such history should give originalists pause before incorporating the Second Amendment against the states: “there is ample historical evidence showing that at the time the 14^th Amendment was ratified, states had broad authority to enact nondiscriminatory gun-safety regulations.”  In the Washington Examiner, Josh Blackman and Ilya Shapiro have an op-ed questioning whether Justice Scalia is “abandoning originalism” by appearing to ignore the Privileges or Immunities argument in favor of incorporation through substantive due process.  They observe that “when the justice was faced with a golden opportunity to advance originalism, he blinked.”

The L.A. Times reports that the Court’s campaign finance rulings have contributed to the ever-expanding fundraising success of the U.S. Chamber of Commerce.  In an opinion piece in U.S. News & World Report, the Brennan Center’s Ciara Torres-Spelliscy urges the U.S. to adopt a law like one the U.K. “passed in 2000 that requires British companies to seek authorization from their shareholders for corporate political spending.” Elsewhere, ACSblog has an interview with Joseph Sandler, an election law expert, in which he discusses the impact of Citizens United.

On her blog, Joan Biskupic reflects on lessons we can draw from past administrations’ Supreme Court nominations processes.  She observes that, especially in Republican administrations, the president’s nominations team starts in-depth research, vetting, and even interviews well before a vacancy presents itself.   Biskupic also notices a pattern: finalists who were passed over for a nomination to the Court often snag the next vacancy during that president’s term.

Briefly:

• The L.A. Times profiles Goodwin Liu, President Obama’s recent nominee to the Ninth Circuit.  Liu is a Berkeley professor and former clerk to Justice Ginsburg who testified against Justice Alito at his confirmation hearings.
• At Concurring Opinions, Tuan Samahon discusses “a whopper of an assumption” in Free Enterprise Fund v. PCAOB, a separation-of-powers case argued in December.

• Retired Justice Sandra Day O’Connor carried her campaign to end judicial elections to Elon University School of Law in Greensboro, North Carolina, reports the Burlington Times-News.

At the L.A. Times and in its blog, David Savage covers the cert. grant in Snyder v. Phelps, describing the case as one in which the Court will “decide the outer-limits of free speech protection for public protests”; Bill Mears at CNN also previews the case.  At PrawfsBlawg, Howard Wasserman expresses concern that the Court will use the case to “further limit the scope of public-space expression.” The ACSblog, the Huffington Post, and Tony Mauro at the BLT also report on the story.

Elsewhere in the blogosphere, Eugene Volokh at the Volokh Conspiracy has a series of posts in which he argues that the Court should uphold the Fourth Circuit’s decision, “notwithstanding the speech involved,” because the relevant tort is “facially overbroad and thus unconstitutional as applied to speech.”  Volokh also applies the standard outlined in the lower court judgment to hypothetical situations and concludes that upholding the decision would “lead to the restriction of much more valuable speech.”

Ashby Jones at the WSJ Law Blog recaps last week’s “Privileges or Immunities” debate in the McDonald v. City of Chicago oral argument.  Although most of the justices seemed unreceptive to the argument, Jones speculates that Justice Thomas may be “the lone Court member who is willing to incorporate the Second Amendment to the states through the Privileges or Immunities Clause.”  At the Volokh Conspiracy, Orin Kerr also discusses the Court’s apparent unwillingness to expand the Privileges or Immunities Clause and opines that the Constitution is at least partly responsible for that hesitation, as it requires that justices be nominated and confirmed by politicians, who are simply “not likely to favor someone who they think will exercise the power of the office in unexpected ways.”

Robert Barnes at the Washington Post recaps yesterday’s decision in Milavetz, Gallop & Milavetz v. United States, explaining that the Court’s narrow interpretation of the statute at issue “only reinforces rules prohibiting lawyers from giving unethical advice.”  At the Bankruptcy Litigation Blog, Steve Jakubowski applauds the Court for reading the statute in a way that does not restrict “full and frank” discussions between lawyers and their clients. Ashby Jones at the WSJ Law Blog and Tony Mauro at the BLT also have coverage.

Bob Egelko at the San Francisco Chronicle reports on yesterday’s cert. grant in NASA v. Nelson.  At the Volokh Conspiracy, Eugene Volokh compares background checks to a police officer conducting a criminal investigation and predicts that the Court will reverse because there is no “constitutional right not to have the government ask other questions about you.”

In his Sidebar column at The New York Times, Adam Liptak discusses the strategy behind reading an oral dissent from the bench, noting the public relations and ideological factors that may go into a justice’s decision. The number of oral dissents has increased significantly on the Roberts Court, a trend that Liptak writes is “suggestive of an increasingly polarized court.”

Also at the Washington Post, op-ed columnist E.J. Dionne, Jr. urges both parties to enact the Schumer-Van Hollen campaign finance bill to “put boundaries” on the Court’s controversial Citizens United opinion and “make executives think twice before unleashing their companies’ treasuries.”

Briefly:

• At the Volokh Conspiracy, John Elwood speculates on who may be writing the four opinions remaining from the October sitting; among his predictions is that either Justice Kennedy or Justice Stevens will write the majority opinion in United States v. Stevens.
• Adam Liptak at The New York Times covers the cert. grants in Snyder v. Phelps and NASA v. Nelson and the decision in Milavetz.  Robert Barnes at the Washington Post also has a general overview of Monday’s proceedings.
• The Seattle Times has an editorial that characterizes Washington State’s constitutional right to own a gun as a model for “reasonable regulations” and encourages the justices to clarify federal gun laws in its McDonald opinion in a way that still allows the states “a strong power to protect public safety.”
• Tony Mauro at the NLJ reports on a recent poll regarding, among other things, cameras in the courtroom and life tenure for judges. More than sixty percent of those polled agreed that cameras in the courtroom would be “good for democracy.”

Commentary on the oral argument in McDonald v. Chicago continues full bore.  Adam Winkler at ACSblog hones in on questions by Justice Stevens regarding whether the Second Amendment might apply differently against the federal and state governments.  At the Volokh Conspiracy, Orin Kerr predicts that the Court’s silence on the Privileges or Immunities Clause incorporation option indicates that the Justices “clearly had it in mind to incorporate the Second Amendment via Due Process”; by contrast, Randy Barnett interprets that same silence as a sign of tacit agreement on the point.

In a Bloomberg editorial titled “Give Us the Right to Be Free of Those Who Bear Arms,” Ann Woolner laments the increasing readiness of states and towns to pass laws permitting guns in public paces, a trend she hopes the Court in McDonald will at least not exacerbate by acknowledging “reasonable restrictions” on any Second Amendment recognized against local government.

A ten-minute video of Reason.tv interviewing Eugene Volokh, founder of The Volokh Conspiracy, on the First and Second Amendments appears on Overlawyered (warning: it takes awhile to load).

In an article focusing on the overhaul of immigration detention generally, the New York Times briefly discusses Tuesday’s oral argument in Hui v. Castaneda, reporting that the Court seemed “receptive to the government’s argument that Public Health Service doctors were immune from suit” for failing to provide medical treatment to an imprisoned immigrant.

The Boston Globe editorial staff criticizes recent Court decisions narrowly interpreting the Clean Water Act for “undermin[ing] the ability of the US Environmental Protection Agency to stop pollution of the nation’s waterways.”

After the Court’s opinion in the copyright case Reed Elsevier, Inc. v. Muchnick, Howard Wasserman at PrawfsBlawg praises the opinion for getting a jurisdictional issue “just right and in a straight-forward way, with a minimum of complications or confusion.”

A Washington Post editorial yesterday concluded that the Court “rightly dismissed” Kiyemba v. Obama, the case remanded to the D.C. Circuit last week in light of the offers to resettle all seven petitioners.

Ruben Castaneda of the Washington Post has a story on the potential impact of Monday’s decision in Maryland v. Shatzer, in which the Court held that police can resume questioning of a suspect who has invoked her Miranda rights – following a break in custody of at least fourteen days.  Castaneda interviewed several defense attorneys, who disagreed about the decision’s effect.

Finally, David Ingram at the BLT reports on Tuesday’s speech by Gregory Craig on the selection of federal judges.

Oral Argument in McDonald v. City of Chicago

Today’s media and blog coverage focused overwhelmingly on yesterday’s oral argument in the Second Amendment case McDonald v. City of Chicago.  Reflecting on the proceedings, a number of news sources reported that the Justices’ questions suggested that the Court would extend Second Amendment protection to individuals subject to state and local gun-control ordinances.  Jess Bravin of the Wall Street Journal, Bill Mears of CNN, Warren Richey of the Christian Science Monitor, David Savage of the L.A. Times, Adam Liptak of the New York Times, Bob Barnes of the Washington Post, Nina Totenberg of NPR, Lyle Denniston of SCOTUSblog, Tony Mauro of the National Law Journal and the BLT, the Kansas City Star, USA Today, ACSblog, the CQ Researcher Blog, and JURIST all report that the Court seems ready to expand the Second Amendment’s reach significantly.

Several blogs provide detailed play-by-plays of yesterday’s proceedings.  Josh Blackman has a recap at his blog, while Gerard Magliocca at Concurring Opinions highlights a few key moments from what he characterizes as an otherwise “dull” argument.  Orin Kerr also recaps the action at The Volokh Conspiracy, and he highlights Justice Ginsburg’s questions regarding the implications of the petitioners’ argument in the context of an originalist approach.  Ilya Somin, also at The Volokh Conspiracy, questions Justice Ginsburg’s gender-based critique of an originalist approach to the Privileges or Immunities Clause, while fellow Volokh blogger David Kopel examines the “reasonable regulation” questions from Justices Ginsburg and Sotomayor.  Doug Berman at Sentencing Law and Policy discusses the prospect that the Second Amendment might only be partially incorporated against the states (a possibility raised during the argument by Justice Stevens).  The Washington Post’s Dana Milbank and Constitutional Law Prof Blog’s Steven Schwinn offer close reads of the proceedings as well.

In a recap of the argument at the WSJ Law Blog, Ashby Jones notes that restrictions on gun ownership will remain largely subject to the political process regardless of the Court’s ruling in McDonald.  Writing for the National Review Online’s Bench Memos blog, Clark Neily – who served as co-counsel to the plaintiffs in District of Columbia v. Heller – characterizes the Court’s apparent lack of interest in the Privileges or Immunities Clause as a “misfire” and “the continuation of a tragedy.”

In a piece cross-posted at Balkinization and the Huffington Post, Doug Kendall focuses on Justice Scalia’s disparagement of the Privileges or Immunities Clause arguments. Kendall suggests that such an approach is in keeping with the Justice’s longstanding reluctance to extend judicial protections for substantive fundamental rights.

In an opinion piece at the Wall Street Journal, Randy Barnett writes on the Justices’ apparent reluctance to revisit the 1873 Slaughter-House Cases, which significantly restricted the application of the Privileges or Immunities Clause.  And FoxNews’s John Lott, examining the “reasonableness” of the Chicago gun ban, suggests that a decision expanding Second Amendment protections would enhance, not threaten, personal safety.

In a post at Bench Memos, Roger Pilon of the Cato Institute discusses two pre-argument editorials – one by the New York Times, which described incorporation through the Privileges or Immunities Clause as “truer to the intent of the founders,” and one by the Wall Street Journal, which urged the Court to rely on the Due Process Clause.  He opines that “[i]t’s a rare day when the New York Times gets something right editorially while the Wall Street Journal gets it wrong – and on gun rights, no less.”

Finally, Adam Liptak of the New York Times spoke to some of the dozens of people who lined up outside the Court – some as early as Monday morning – for a chance to hear the oral argument in McDonald.  Third in line was Mike Sacks, a Georgetown law student who has sought to arrive first for all major arguments this Term; he was named “Law Student of the Day” yesterday by Above the Law.  Sacks has pictures and video of the line at his blog First One @ One First.  (For more multimedia coverage, C-SPAN.org has video of a Cato Institute panel of legal scholars previewing the case, and SCOTUSblog featured podcasts with five advocates involved in the case.)

Gay Marriage in Washington, DC

Yesterday, the Chief Justice – in his capacity as the Circuit Justice for the District of Columbia Circuit – declined to block a D.C. court order that will allow the District to issue marriage licenses to same-sex couples starting today.  Lyle Denniston of this blog and Bob Barnes of the Washington Post cover the dispute.  CBS News’s Jan Crawford, the BLT, Constitutional Law Prof Blog, and The Volokh Conspiracy also noted the Chief Justice’s decision.

Oral Argument in Hui v. Castaneda

The Second Amendment was not the only issue before the Justices yesterday morning; they also heard argument in Hui v. Castaneda, involving whether patients may bring Bivens actions against doctors and nurses in federal medical facilities when a remedy is also available to them under the Federal Tort Claims Act.  Luke Appling previewed the argument for SCOTUSblog here.  Nick Wilson of Courthouse News Service reports that “[t]he justices rarely interrupted the lawyers, interjecting mostly to clarify the facts of the case – like how Congress amended the law.”  And the Associated Press’s Suzanne Gamboa (via the Washington Post) summarized the sentiment of the argument: counsel for the deceased patient’s wife and daughter “seemed unable to convince the justices that the doctors are not protected from personal damage suits if they violated [the plaintiff’s] constitutional rights.”

Yesterday’s Opinions

The Justices also released opinions in three cases yesterday: Reed Elsevier v. Muchnick, Johnson v. United States, and Mac’s Shell Service, Inc. v. Shell Oil Products Company.

Of the three, Reed Elsevier received the lion’s share of media attention.  That ruling puts “[a]n $18 million settlement of a copyright infringement suit between Internet publishers and freelance writers … back on track,” explains Marcia Coyle of the National Law Journal.  The New York Times, the Wall Street Journal, and Courthouse News Service have further coverage.  [Disclosure:  Howe & Russell represented respondents Irvin Muchnick et al. in the case.]

Courthouse News Service covers the ruling in Johnson, a case about the meaning of “violent felony” under the Armed Career Criminal Act; the decision is also noted by Sentencing Law and Policy and JURIST.

The Court ruled in Mac’s Shell Service that Massachusetts gas station owners cannot sue Shell Oil for changing their franchise rental terms under the Petroleum Marketing Practice Act.  That decision is summarized by JURIST and Courthouse News Service.

Briefly

• Ross Guberman of Legal Writing Pro recalls Chief Justice Roberts’s skill as an appellate advocate and offers “Five Ways to Write Like John Roberts.”
• Writing for the New Republic, Jeffrey Rosen asks: “just how radical is the Chief Justice?”  Rosen contends that with Citizens United, “John Roberts is now entering politically hazardous territory.”
• At the Conglomerate, Christine Hurt has a two-part analysis of Monday’s oral argument in Skilling v. United States.
• Nina Totenberg has a preview of today’s argument in Samantar v. Yousuf, a Foreign Sovereign Immunities Act case, at NPR.  [Disclosure:  Akin Gump and Howe & Russell represent the respondents in the case.]
• At Concurring Opinions, Tuan Samahon reveals the author of a per curiam three-judge district court decision in a 1986 separation-of-powers case (hint: Justice Scalia).  Samahon writes that when the case reached the Supreme Court, “[t]he Court’s heavy reliance on the Scalia opinion below means that the substance of its analysis can be fairly added to the Scalia separation-of-powers canon.”
• At Crime & Consequences, Lauren Altdoerffer takes issue with an L.A. Times editorial discussing last week’s decision in Maryland v. Shatzer.

In the blogosphere, Christine Hunt at The Conglomerate has a “post-game” analysis of the argument; in a separate post at The Conglomerate, she also analyzes the amicus brief filed by news organizations in opposition to Skilling’s change-of-venue argument and concludes that the outrage in Houston regarding the Enron scandal was not sufficiently national in scope to eliminate the potential value of a transfer of venue. The DealBook blog of The New York Times has coverage of the oral argument, while Ashby Jones at the WSJ Law Blog features a report on the argument from the Journal’s Jess Bravin, who predicts a decision that instructs Congress to reshape the “honest services” law; if the Court does reverse on the jury fairness issue, Bravin speculates that it will issue a narrow ruling that does not address “the broader claim that a change of venue is required whenever there is a similarly pervasive publicity about a defendant.”

Joan Biskupic at USA Today covers yesterday’s dismissal of Kiyemba v. Obama, while Adam Liptak at The New York Times notes that “the central issue…is likely to reach the court again” because “other prisoners cleared for release with nowhere to go” remain at Guantanamo.  At the L.A. Times, David Savage observes that the Court’s move temporarily “gives the [Obama] administration more time to resolve how to handle the remaining prisoners at Guantanamo.”  Robert Barnes at the Washington Post, Tony Mauro at the BLT, and Jess Bravin of the WSJ Law Blog also have coverage.  At Balkinization, Deborah Pearlstein applauds the Court’s decision, asserting that a potential decision against the Uighurs “might have cemented a permanently bad outcome for the remaining Guantanamo detainees” that have not yet been released.

In her preview of Tuesday’s scheduled oral argument in McDonald v. City of Chicago, Nina Totenberg at NPR predicts that a decision in favor of the petitioners will lead to a “torrent of other cases…that test a huge array of existing gun regulations.” Warren Richey of the Christian Science Monitor also has coverage, while Bill Mears’s piece at CNN profiles petitioner Otis McDonald and recaps the history of the Chicago gun laws at issue. In Chicago, Fran Spielman of the Chicago Sun-Times (via How Appealing) covers a pre-argument press conference with Chicago Mayor Richard Daley, who describes himself as “very optimistic” that the Court will uphold the handgun ban – a measure that he views as necessary for the “safety of our streets and our families.”  Finally, Lyle Denniston at SCOTUSblog reported Monday evening that the Court refused a last-minute request by broadcast networks to release the audiotape of the oral argument immediately after the argument finishes; consistent with current Court policy, the transcript will be released later on Tuesday.

Numerous editorial pages and opinion pieces weigh in on McDonald.  The editorial board of Christian Science Monitor argues that Second Amendment rights must be viewed differently than free speech because of the serious safety threat that guns pose, and it urges the Court to issue more specific standards of review to help lower courts determine the constitutionality of firearms restrictions.  At the ACS Blog, Mark Tushnet predicts that the Court will rule in the petitioners’ favor – an outcome that, he opines, casts doubt on the consistency of Republican deference to federalism in other policy areas.  The Wall Street Journal’s editorial board encourages the Court to overturn the Chicago law using the “judicially restrained path” of the Due Process Clause; reliance on the Privileges or Immunities Clause, the board cautions, could become a tool used to assert other “rights” not found in the Constitution’s text.  And the Washington Post’s editorial board deems it “incongruous at best” to deny the rights established in Heller to those living outside of the District of Columbia but at the same time supports “reasonable gun-control measures” to protect public safety. And at the National Law Journal, Dennis Henigan of the Brady Center urges the Court, even if it rules in the petitioners’ favor, to re-affirm Heller’s requirement that “courts show great deference” to legislation that reduces gun safety risks.

Briefly:

• Tony Mauro at the BLT reports on the “Supreme Court of one justice” in which Justice Sotomayor, the only justice not named as a defendant in a suit against the Court itself, acted as a “quorum of one” in dismissing a challenge to the Court’s discretionary jurisdiction.
• At the Volokh Conspiracy, Orin Kerr covers yesterday’s denial of cert. in McCane v. United States, a Fourth Amendment “good faith exception” case and then follows up with a second post covering his take on the issue, a piece he calls “the merits brief I was itching to write, offered in blog form instead.”
• Bill Mears at CNN covers the denial of cert. in LFP Publishing Group v. Toffoloni, a case involving a suit against Hustler magazine.
• Jesse Holland at the Associated Press has a recap of oral argument in Monday’s Miranda-rights case, Berghuis v. Thompkins.
• Warren Richey at the Christian Science Monitor also covers the denial of cert. in Haskell County Board of Commissioners v. Green, noting that nine states had filed an amicus brief in support of certiorari seeking “clearer guidance for public officials and lower courts” on displays of the Ten Commandments.
• At Concurring Opinions, Sherrilyn Ifill expresses disappointment at the socioeconomic disparity between former Enron CEO Jeffrey Skilling and other, unsuccessful due process petitioners in recent Supreme Court terms.
• Brigid Schulte at the Washington Post profiles Mohamed Ali Samantar, the petitioner in Samantar v. Youself.  Oral argument in the case is scheduled for Wednesday.
• Finally, also at the Volokh Conspiracy, Randy Barnett covers the interaction between Dred Scott, the Fourteenth Amendment, and the Slaughter-House Cases in defining the Privileges or Immunities Clause at issue in McDonald.

Tomorrow the Court will hear arguments in McDonald v. City of Chicago, the challenge to the City of Chicago’s handgun ban.  Harriet Robbins Ost of UPI discusses the arguments in the case, including the ramifications of a decision that relies on either the Privileges or Immunities Clause or the Due Process Clause. McClatchy Newspapers.  SCOTUSblog, the L.A. Times, the Washington Post, and the San Jose Mercury News all have coverage of the case.

Legislators and commentators continue to consider responses to Citizens United.  Griff Palmer of the New York Times analyzes the Schumer-Hollen legislation.  Comparing the present situation to FDR’s struggle with the Court over the New Deal, Stan Isaacs of the Philadelphia Inquirer uses his column to argue that President Obama should add three new justices to the Court.  ACSblog interviews Professor William Marshall, and posts a link from a panel discussion, moderated by Professor Marshall, which examined the decision.

Briefly:

• Speaking to the Rapid City Journal, attorney James Leach – who argued on behalf of Catherine Ratliff last week in Astrue v. Ratliff – compares arguing a Supreme Court case to the “Super Bowl, World Series and Olympics all put together.”

• David Hudson, analyzing United States v. Stevens at the First Amendment Center blog, writes, “One can hope that the justices won’t carve out another category of expression that’s off-limits.”

• At the Volokh Conspiracy, David Kopel has a post entitled “Why United States v. Miller was so badly written.”  Kopel characterizes Miller as the Court’s “leading decision on the Second Amendment” before District of Columbia v. Heller.

• The New York Times reports on the Court’s influence on efforts by the Environmental Protection Agency to regulate the nation’s waterways.

Brent Kendall of the Wall Street Journal reports on Hertz Corp. v. Friend, in which the Court held that for purposes of federal diversity jurisdiction, a corporation should be considered a citizen of the state in which its “nerve center” –usually the company’s headquarters – is located. Debra Cassens Weiss of the ABA Journal, Jonathan Stempel of Reuters, and the Chamber Post also have coverage of the decision.

Debra Cassens Weiss of the ABA Journal also summarizes Florida v. Powell, in which the Court upheld the version of the Miranda warnings read to Kevin Powell, a Florida prisoner who asserted that the warning did not communicate that he could have a lawyer throughout his interrogation.  Greg Stohr of Bloomberg observes the majority opinion represents a new limit on the Court’s 1966 decision in Miranda v. Arizona.  Warren Richey of the Christian Science Monitor also reports.

Reuters analyzes yesterday’s oral argument in Holder v. Humanitarian Law Project, the First Amendment challenge to a statute prohibiting the provision of aid to terrorist groups.    David Savage of the L.A. Times, ACSblog,  Bloomberg, the WSJ, the New York Times, the Christian Science Monitor, the Washington Post, and SCOTUSblog all have coverage, as does the Center for Constitutional Rights.

Ashby Jones of the WSJ reports that twenty-one former judges and prosecutors and thirty legal ethics experts filed amicus briefs on Monday supporting the request for a retrial made by Charles Hood, who was sentenced to death twenty years ago by a Texas judge who had been sleeping with the prosecutor in his case.  The Texas Court of Criminal Appeals rejected his appeal, holding that Hood had waited too long to allege that the relationship constituted a conflict of interest.   ACSblog also has coverage of the case.

Briefly:

• Marcia Coyle recaps the oral argument in Lewis v. City of Chicago for the BLT.
• Writing for Concurring Opinions, Gerald Magliocca comments on the high number of summary reversals this term, a topic recently addressed by Kevin Russell of SCOTUSblog.
• Virginia Thomas, the wife of Justice Clarence Thomas, recently launched a website to serve as an online community for those working to “preserve freedom and reaffirm the core founding principles,” reports Tony Mauro.
• In an opinion piece for the NYT, John Farmer Jr. discusses this Term’s honest services, corruption, and terrorism cases in light of what he describes as “the most fundamental underpinnings of Anglo-American criminal and constitutional law.
• On Monday, the Court declined to hear three environmental cases, writes Gabriel Nelson of Greenwire (posted at the Times).

In other news relating to Citizens United, Jeff Rosen suggests in The New Republic that the decision was “precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.”  The L.A. Times reports that Los Angeles and San Diego have removed their local restrictions on corporate and union spending on elections.  At Fox News, Harry Diamond, CEO of a multinational public relations firm, predicts that independent voters will not be persuaded by direct advertising from either businesses or unions in the wake of Citizens.  The American Constitution Society Blog also announces an event on the consequences of Citizens.

At Slate, Rebecca Crootof and Oona Hathaway caution that a dismissal of Kiyemba v. Obama – which raises the authority of federal judges to order government detainees released into the United States – would “represent an exceedingly transparent effort by the court to avoid conflict with the president and to dodge wrestling with the difficult questions presented by this case.”  Last week the Court ordered supplemental briefs in the case to address the issue of dismissal.

David Savage of the L.A. Times previews Holder v. Humanitarian Law  Project, a challenge to the law prohibiting the provision of aid to a designated terrorist organization.

At The New Republic, Richard Posner reviews Jeff Shesol’s new book, Franklin Roosevelt Versus the Supreme Court, praising it as “timely” because of what he regards as the parallels between Roosevelt and President Obama.

Lyrissa Lidsky at PrawfsBlawg critiques the Ninth Circuit’s decision in Doe v. Reed, slated for argument in April, and she predicts that oral arguments will focus on the question whether to apply intermediate scrutiny to the petitioners’ claims that their identities should remain anonymous.

The AP (via NPR) reports that local officials are trawling Lake Michigan for the suspected invasion of Asian carp that caused Michigan to seek an injunction to shut down the Chicago locks.  The Wall Street Journal reports on calls for a more fundamental solution: reconstructing the man-made barriers to the Chicago River.  The New York Times editorial page weighs in, too, suggesting that measures proposed by the federal government to stop the carp may be inadequate to save Lake Michigan.

In response to a letter by screenwriter Daniel Turkewitz asking for clarification of the law on state secession, Justice Scalia wrote a reply that has been caught up by the WSJ Law Blog: “the answer is clear” that, as the Civil War settled, secession is illegal.  The issue was raised by a recent forum on The Volokh Conspiracy, where Eugene Volokh disagrees with the Justice.

Briefly:

• The Cato Institute has produced a series of audio pieces with commentary from its scholars, including one by Ilya Shapiro on the Privileges or Immunities Clause.  You can read the paper on which Shapiro’s piece is based here.
• Also at PrawfsBlawg, Aaron Bruhl discusses the relatively rare request for a response in a petition for rehearing, Melson v. Allen.
• At the New York Times blog Economix, Casey Mulligan explains how, if the Citizens decision produces less campaign spending on candidates who support entitlement programs like Medicare and Social Security, the Court could have helped balance the federal budget.

CORRECTION: This post originally named the author of the above-mentioned letter to Justice Scalia as Eric Turkewitz, when it was in fact his brother Daniel.

The Washington Post has an editorial discussing the Schumer-Van Hollen legislative response to Citizens United. Although the editorial approves of the transparency measures proposed by the legislation, it regards the proposed limitations on foreign corporations are too restrictive, and it concludes by urging Congress to respond to Citizens with legislation that is “sensitive to the realities of a globalized economy.”

At Politico, Senator John Kerry also discusses the implications of the Citizens decision, focusing on what he describes as its magnification of the “deep existing concerns about the role played [in the political system] by foreign nationals and foreign countries.  Senator Kerry concludes by calling for a constitutional amendment to “make it clear . . . that corporations do not have the same free-speech rights as individuals do.

An editorial in The New York Times covers Justice Kennedy’s recent criticism of California’s three-strikes law.  The editorial agrees with the Justice’s criticism, but it also notes that Justice Kennedy was also part of a five-four majority that rejected a challenge to the law’s lengthy sentences (in Ewing v. California), and it urges the Court to “enforc[e] constitutional prohibitions” on excessive punishment.

John Elwood at the Volokh Conspiracy discusses Thaler v. Haynes, in which Texas has filed a cert. petition seeking review of the Fifth Circuit’s holding in favor of a convicted murderer on the ground that the state court was unable to “perform the sort of factual inquiry Batson requires” in its voir dire proceedings.  The case has been relisted several times since late November, and the Court called for the record in early January. Ellis speculates that the Court may summarily reverse the decision below on the ground that the Fifth Circuit should have used a more lenient standard of review in examining the state court’s ruling.

The Yale Daily News reports on Justice Breyer’s remarks at Yale Law School on Monday (both links via How Appealing).  The justice discussed several landmark cases, but he declined to comment on the California Prop. 8 trial currently in federal district court, a case that may soon come before the Supreme Court.  The Boston Herald also has coverage of Justice Breyer’s remarks.

Finally, KETV (Omaha) has a story on Shon Hopwood, the bank-robber-turned-successful-Supreme-Court-practitioner who now plans to attend law school (video available).

Ezra Klein takes a different approach in his column in the Washington Post.  In his view, the proposed legislation is “primarily symbolic,” and Congress should instead focus its efforts on creating “a whole new public funding structure.”  Regardless of the impact, any new legislative restrictions will “undoubtedly” be challenged in court, notes Lyle Dennison, writing for the Peter Jennings Project for Journalists and the Constitution.  Denniston traces the complicated history of corporate “personhood,” concluding that the Court will “for the next several years” be grappling with the question posed by Justice Ginsburg during the Citizens United argument: “is there any distinction that Congress could draw between corporations and natural human beings?”

James Tyree, writing for NewsOK, reviews a panel discussion on Green v. Haskell County, a challenge to a Ten Commandments display outside a county courthouse in Kentucky.  Brought by county resident James Green and the ACLU, the case will be considered at the Court’s conference on February 19.  Ten Commandments displays were also the subject of two companion cases in 2005, McCreary County v. ACLU of Kentucky and Van Orden v. Perry, recalls Tyree, and these cases created what Political Science professor Peter Irons has referred to as a “tremendous flux in the law.”

Writing for the Brennan Center for Justice, Adam Skaggs reviews proposed changes to Arizona’s judicial selection process.   Retired Justice Sandra Day O’Connor, who as an Arizona state senator was “instrumental in establishing the current system,” opposes changes to the selection process.

In a Valentine’s Day reflection, the Christian Science Monitor recalls notable figures whom the Justices have married, including radio talk-show host Rush Limbaugh (Justice Thomas), NPR legal affairs correspondent Nina Totenberg (Justice Ginsburg), and former Federal Reserve Chairman Alan Greenspan (Justice Ginsburg).

Briefly:

• Indiana Attorney General Greg Zoeller plans to file a brief in partial support of Michigan’s lawsuit seeking to close shipping locks to prevent the spread of Asian carp to the Great Lakes, reports the Chicago Tribune.
• Justice Breyer, a former Marshall Scholar, will be awarded an honorary degree from Oxford University this year.

• Kevin Boyle reviews Root and Branch: Charles Hamilton Houston, Thurgood Marshall, and the Struggle to End Segregation, by Rawn James, Jr., for the Washington Post.

• The White House is considering potential Supreme Court nominees, anticipating that Justice Stevens or Justice Ginsburg may retire at the end of this term, reports Bill Mears for CNN.

• The Atlanta Journal-Constitution uncovers new evidence and interviews parties involved in the case of Wellons v. Hall, a capital case that the Court recently remanded to the Eleventh Circuit for reconsideration in light of its decision last Term in Cone v. Bell.

Reporting and commentary on the import of last month’s ruling in Citizens United v. FEC continues apace.  David Savage writes for the L.A. Times that the ruling “reflects a profound shift among the conservative justices on the importance of the 1st Amendment and the nature of corporations.”  Savage credits the change to the influence of the Reagan era: “All five justices who made up the majority in last month’s case, Citizens United vs. Federal Election Commission, were either appointed by Reagan or worked as young lawyers in the Reagan administration.”

The Wall Street Journal has an article chronicling the “new urgency” of “[a]n effort by activist shareholders to prod companies to disclose political contributions.”  Ralph Nader and Robert Weissman have an opinion piece in the same paper criticizing the Citizens United ruling and advocating for a constitutional amendment in response.  On PrawfsBlawg, Ian Bartrum analyzes Justice Kennedy’s justifications for overruling Austin v. Michigan Chamber of Commerce as part of the Citizens United ruling, and he concludes that “the decision to overturn Austin was—at least for Kennedy—primarily a prudential one—and as such is subject to revisitation, potentially, after we get to see the policy in effect.”

Joan Biskupic of USA Today reflects on this Term’s oral arguments and notes that they “have offered a series of reminders of how old-fashioned this court is and how whimsically dated its reference points can be.”

At the Daily Beast, Mark McKinnon and Myra Adams explain why the prospect of Hillary Clinton being nominated to the Court is “not as far-fetched as you might think.”  Jonathan Adler also reflects on potential nominees at the Volokh Conspiracy, questioning the conventional wisdom on several of the usual suspects.

At the Volokh Conspiracy, Orin Kerr has a post on the “surprisingly narrow argument” made by the petitioners in City of Ontario v. Quon, a Fourth Amendment case about government employees’ privacy interest in text messages on government-issued pagers.  Kerr predicts “that this narrow framing will make Quon a significantly less important case than it otherwise could have been.”  Also at the Volokh Conspiracy, Eugene Volokh analyzes the complicated circumstances of seeking cert. in a prison strip-search case decided yesterday by the Ninth Circuit, sitting en banc.  Because Justice Breyer’s brother was the trial judge, Justice Breyer will be recused, which “might lead the plaintiffs’ lawyers to avoid petitioning for Supreme Court review in this case.

In an essay on FindLaw, Michael Dorf examines Justice Thomas’s remarks at the University of Florida last week and draws a connection to Justice Sotomayor’s confirmation hearings, ultimately concluding that “in acknowledging—even if only modestly and tentatively—that diversity of opinion on the Supreme Court is healthy, Justice Thomas has performed a valuable service.

Finally, the Detroit Free Press has a brief report on former Justice Sandra Day O’Connor’s speech at Wayne State University, in which she “reiterated her call for choosing judges on a merit-based system.”

Democrats are torn over whether to nominate a “prominent liberal voice,” relying on their Senate majority to ensure a confirmation, or appoint someone less likely to incite Republican opposition, notes Jess Bravin of the Wall Street Journal.  Some liberals, such as Professor Geoffrey Stone, would prefer President Obama to nominate a “Scalia of the left,” who would articulate a “robust philosophical alternative” to the Court’s conservatives, while other Obama allies caution that a candidate with a sharp liberal record would be a “target” in a nomination struggle that would consume the whole summer, thereby derailing the Democrats’ agenda.  The ABA Journal recaps recent coverage of the potential retirements of Justice Ginsburg and Justice Stevens.

On the subject of judicial vacancies, Doug Kendall of Slate notes that there are “102 vacancies on the federal bench,” and that “of these, 31 constitute judicial emergencies.”  Last year, Obama nominated thirty-three district court and court of appeals judges, and the Senate confirmed twelve; Kendall attributes the low number of nominations and slow confirmations to “obstructionist” Republican Senators, and a lack of nominations on Obama’s part.

The Chicago Tribune recalls Justice Alito’s question to Seth Waxman during the Citizens United oral argument (“…the only cases that are being, that may possibly be reconsidered, are McConnell and Austin. And they don’t go back 50 years, and they don’t go back 100 years”), reasoning that this is evidence that Alito specifically disagreed with Obama’s assertion at the State of the Union that the Court had “reversed a century of law.”

Writing for UPI, Michael Kirkland examines whether the Court would grant certiorari, if the lower court ruling were challenged, in Perry v. Schwarzenegger, the Proposition 8 trial.  Kirkland focuses on how Justice Kennedy might vote if the Court were to hear the case, and concludes that “in all probability” the Court will eventually hear the case.

The Court recently granted the NRA’s request to participate in the oral argument in McDonald v. Chicago, a Second Amendment challenge to a Chicago ban on handguns.  However, Robert Barnes of the Washington Post reports that Alan Gura, who will argue the case on March 2, is not interested in sharing the podium, or his argument time, with the NRA.

Rush Limbaugh, a conservative radio-show host, recently claimed that President Obama relied on professors to write his articles at the Harvard Law Review.  Ashby Jones at the WSJ Law Blog, drawing on commentary and Supreme Court precedents, examines whether the assertion is libelous, and if Obama should bring a defamation suit against Limbaugh.

Briefly:

• Writing for Reason.com, Damon Root suggests that judicial restraint has an inherent pro-government bias, and that even if the Court’s ruling in Citizens United departed from judicial restraint, the ruling protected “constitutional rights from democratic majorities.”

• The Department of Justice filed a brief Friday urging the Court to dismiss Kiyemba v. Obama, an appeal filed by two Chinese Muslim Uighurs being held at Guantanamo Bay, reports Jurist.  Lyle Denniston of this blog also reports.

• Above the Law analyzes the accuracy of predictions in fantasyscotus.net’s Supreme Court fantasy league.  “The prediction pool,” Josh Blackman concludes, “is by no means infallible and may get cases wrong.”

Yesterday Ariane de Vogue of ABCNews reported that the White House may be gearing up to fill two Court vacancies this summer, which would be created if both Justice Stevens and Justice Ginsburg decided to step down.

Tony Mauro at the National Law Journal (free registration required) reports this morning that James Feldman, a former Assistant to the Solicitor General who has argued forty-five times before the Supreme Court, will defend Chicago’s strict handgun ban in McDonald v. Chicago, which will be argued next month.

Michigan has renewed its request – which the Court denied last month — for an injunction to close canals between Chicago and Lake Michigan to prevent Asian carp from entering the lake and disturbing the Michigan fishing industry. According to the Detroit Free Press, the state is arguing that there is new evidence about the minimal economic effects of the closure for Illinois, as well as the discovery of carp DNA in the lake already.

Discussion of the Citizens United decision continues.  Yesterday the New York Times ran an editorial listing what it regards as the most “feasible” legislative proposals to curb corporate campaign spending in the wake of the decision.  Andrea Seabrook of NPR asked two House Democrats to reflect on the significance of Citizens.  The Federalist Society website also has an ongoing debate for scholars on the decision, with the latest commentary by law professors Larry Ribstein and Howard Wasserman.

During a lengthy interview with The Politic, Linda Greenhouse – who covered the Court for the New York Times for three decades – gives her immediate reaction to the Citizens decision: “the Court has finally come out of the closet, and it’s no longer the minimalist Court that Chief Justice Roberts likes us to think it is.”

Michael O’Donnell has an article in The Nation on Justice Scalia, deriding him for adopting faux “neutral principles” that he applies when it suits his conservative policy preferences.

On her Court Beat blog, Joan Biskupic discusses whether it would be politically risky for President Obama to nominate a seventh Catholic or a third Jew to the Court if Justice Stevens – who is Protestant – retires.  She notes that Justice Scalia is proud of the fact that the public seems not to heed the religion of the Justices, while former Justice O’Connor vehemently called for a diversity of faiths.

Lawrence Hurley of the Daily Journal (via How Appealing) has an article on Samantar v. Yousuf, which is scheduled for oral argument on March 3.  Former Somali prime minister Mohamed Ali Samantar is challenging a lower court’s ruling that he is not immune from a suit brought by five Somali citizens accusing him of torture.  will be heard for oral argument on March 3. [Disclosure: Akin Gump also represents the respondents in this case.]

Yesterday two sisters who were petitioners in the famous Brown v. Board of Education discussed “myths” about the case before an audience in Memphis, as reported by the Commercial Appeal blog.

Others are defending the Citizens United decision.  The Denver Post’s editorial board applauds the decision’s requirement that corporations “disclose their backing of political speech,” explaining that the earlier patchwork of campaign-finance legislation created a regulatory system that allowed candidates to mask the sources of corporate donations.  And in an op-ed piece in the Seattle Times, Bill Maurer of the Institute for Justice argues that corporations are simply composed of individuals, who should not be penalized for “[picking] the wrong form for their association.”  Like any other association, he writes, corporations should be free to “choose the form that they believe is most effective for disseminating their message.”

Pundits continue to analyze President Obama’s criticism of the Citizens United decision during his State of the Union address, as well as Justice Alito’s “response.”  In an editorial piece in the Washington Post, E.J. Dionne Jr. argues that President Obama’s criticism of the Court was an appropriate presidential response supported by “ample precedent.” He points out that previous presidents – including Reagan and Nixon – freely and publicly took issue with the Court, and he concludes by asking, “Isn’t it more honorable to criticize the justices to their faces?”  At the Christian Science Monitor, Brad Knickerbocker points out that President Obama was speaking not to the Court but to Congress, and he characterizes the rebuke as a call to Congress to parry the decision by creating new campaign-finance legislation that will pass “constitutional muster with the high court.”   Finally, Michael Smerconish at the Philadelphia Inquirer also examines President Reagan’s public opposition to Roe, noting that he softened his admonishments by avoiding direct references to the Court decision and by repeatedly calling for bipartisan solutions to the conflict.

In other news, an L.A. Times editorial discusses Doe v. Reed, the Washington state disclosure case in which the Court recently granted cert.  The editorial argues that although the First Amendment protects anonymous political expression, signing a petition is a legislative act that makes signers “akin to legislators whose names are public.”  The piece concludes that signers should press criminal charges if they are subjected to harassment for their actions, but “the remedy for that problem is…not the withholding of public documents.”

Finally, Lyrissa Lidsky at PrawfsBlog covers the Court’s decision in Presley v. Georgia (PDF), a recently decided case that may have gone “overlooked in all the brouhaha over Citizens United.”  Lidsky expresses surprise that the Georgia state courts repeatedly showed “blatant disregard” for Supreme Court precedent in excluding the public from voir dire of prospective jurors and applauds the Supreme Court for rebuking the lower courts and affirming the defendant’s Sixth Amendment rights in its decision to reverse.