Roll Call (subscription only) has an editorial by Simon Lazarus in which he argues that Congress is pushing back against recent Court decisions that encroach on Congress’s domain.  Lazarus cites four examples of legislation Congress introduced to reverse the Court’s decisions and a fiery reproach of the Court’s conservatives from Senator John McCain.

On the heels of yesterday’s news that the victorious firefighters in Ricci v. DeStefano are suing in federal district court for promotions based on the test upheld by the Court in June, Connecticut Employment Law Blog reports that black firefighters are trying to intervene in the case.  Concurring Opinions provides an extensive explanation of both the disparate impact arguments at play in the new firefighter case, Briscoe v. City of New Haven, and how those arguments differ from those made in Ricci.

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The Court’s decision not to review a challenge by a Native American group to the Washington Redskins mascot leads Monday’s coverage. The Wall Street Journal, USA Today, NPR, and the hometown Washington Post all report on the Court’s denial of cert. in Harjo v. Pro-Football Inc.

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The discussion of Monday’s arguments in Graham v. Florida and Sullivan v. Florida has continued through the end of the week.  At Concurring Opinions, Alex Kreit comments on the arguments, highlighting in particular Chief Justice Roberts’s interest in the role that a juvenile offender’s age could play in Eighth Amendment proportionality review.  Kreit speculates that the Chief Justice’s proposal “might provide an avenue for a majority of the Court to come together” on the issue of juvenile life without parole, but cautions that the Justices could still diverge even after agreeing on the basic premise of proportionality.  US News & World Report continues its coverage of Graham and Sullivan as well.  Gerry Shih, writing for the Bay Area blog of the New York Times, explores the cases’ potential implications for a new San Francisco ordinance banning officials from reporting undocumented juvenile offenders to federal immigration authorities.

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The ABA Journal has a new article on sentences of life without parole for juvenile defendants, an issue raised by two cases – Graham v. Florida and Sullivan v. Florida – coming before the Court on November 9.  Graham and Sullivan argue that the imposition of a life sentence on a minor violates the Eighth Amendment, in light of the Court’s ruling in Roper v. Simmons in 2005 that the execution of juveniles is cruel and unusual.

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At Balkinization, Barry Friedman analyzes the Court’s docket for the new Term and notes that business and criminal cases have dominated the Court’s recent cert. grants.  Observing that these cases are less likely than some others to divide the Justices on ideological grounds, he hypothesizes that this Term’s docket may result from “defensive denials” – that is, the practice by which a Justice votes to deny a petition for certiorari when her interpretation of the case is likely to be overruled on the merits.  Because Justices on the current Court are sometimes wary of their colleagues’ positions on ideologically controversial issues, Friedman reasons, some may be unlikely to grant cert. in cases addressing those concerns.

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Most of the major news outlets have coverage of the hospitalization of Justice Ruth Bader Ginsburg, including the Washington Post, Wall Street Journal, and USA Today, as well as the BLT.  It is the second time in less than a month that Ginsburg has been hospitalized, but she has returned home.  Yesterday Lyle covered the story extensively as well.

Wednesday’s oral argument in Alvarez v. Smith disappointed some commentators insofar as the Justices focused largely on procedural questions rather than on a clash between individual rights and the police.  Nathan Koppel at the WSJ Law Blog has this commentary.  Ilya Somin at The Volokh Conspiracy explains why the case should be a significant one for the Due Process Clause, though it has “failed to attract the attention it deserves.”

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Following yesterday’s release of ten new cases the Court agreed to hear at conference on Tuesday, the media is abuzz with coverage of the expanded OT09 docket.

The center of attention is McDonald v. Chicago, a case challenging a Chicago handgun ban on Second Amendment grounds.  The Court now has the opportunity to decide whether the individual right to bear arms it declared in DC v. Heller last year applies against city and state governments.  The New York Times, the Washington Post, the Wall Street Journal, and the National Law Journal cover the cert. grants, focusing on McDonald.  Observers predict that the Court, led by the five justices of the Heller majority, are likely to strike down the gun law and “incorporate” the Second Amendment against local governments.  All note that Justice Sotomayor sat on a similar case before the Second Circuit that concluded only that the Supreme Court alone could decide that issue.

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Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism efforts, did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba.  It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning.  The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.” Read the rest of this entry »

The stakes for the outcome of Citizens United and the McCain-Feingold law have been raised after the D.C. Circuit’s decision last Friday in Emily’s List v. FEC. The Washington Post, the New York Times, the Blog of the Legal Times and Election Law Blog each analyze the appellate opinion, which struck down federal campaign finance regulations that restricted the ability of independent political groups to fund election-related activities. The three-judge panel followed the Supreme Court’s ruling in Federal Election Commission v. Wisconsin Right to Life to hold that groups such as MoveOn.org or Swift Boat Veterans for Truth have a First Amendment right to raise and spend money for elections, as long as they do not coordinate their activities with a candidate or a party. Rick Hasen suggests that this ruling could lead to a “more negative campaign season,” as interest groups tend to run more negative ads than political parties do.

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Sen. Charles Grassley, R-Iowa, announced in a press release that he will vote against Judge Sonia Sotomayor’s nomination to the Supreme Court. Sen. Tom Coburn, Okla., is the only Republican member of the Senate Judiciary Committee to not yet announce his intended vote at tomorrow’s meeting. Sen. Lindsey Graham, S.C., is the only Republican member of the committee to say he will vote for Judge Sotomayor.

Sen. Grassley’s statement said:  “At her confirmation hearing, I asked specific questions about the property rights of private citizens afforded by the Fifth Amendment.  My colleagues asked detailed questions about the now famous Ricci case, the right to privacy and the Second Amendment right to bear arms.  I was not convinced that Judge Sotomayor understands the rights given to Americans under the Constitution, or that she will refrain from expanding or restricting those rights based on her personal preferences.  I am not certain that Judge Sotomayor won’t allow those personal beliefs and preferences to dictate the outcome of cases before her.  There’s no question that nominees have become quite adept at dodging our questions, but her lack of clear and direct answers to simple questions regarding the Constitution were troubling.  Some of her answers were so at odds with statements she has made over the years, that it was difficult to reconcile them.”

Sen. Jeff Sessions, Ala., the ranking Republican on the Senate Judiciary Committee, said in an editorial in USA Today that he would vote against the confirmation of Judge Sonia Sotomayor to the Supreme Court. Citing her decisions in Didden v. Port Chester (property rights),  Maloney v. Cuomo (Second Amendment), and Ricci v. DeStefano (the New Haven firefighter case), he stated he does not “believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism.”

Senators Charles Grassley, Iowa, and Tom Coburn, Okla., are the only Republican members of the committee who have not announced how they will vote. A committee vote on Judge Sotomayor’s nomination is scheduled for tomorrow at 10 a.m.

Sen. Patrick Leahy has announced the list of witnesses to testify at Judge Sonia Sotomayor’s confirmation hearing on July 13 at 10 a.m. The Senator’s press release is available here. Among the witnesses invited by the Republican Minority of the Judiciary Committee is Frank Ricci, the petitioner in the Second Circuit case reversed by the Supreme Court last month.

In a letter received today by the Senate Judiciary Committee, more than 1000 academics expressed their support for Judge Sonia Sotomayor’s confirmation to the Supreme Court.

A number of signatories with diverse specialties and political leanings discussed via conference call Judge Sotomayor’s qualifications and strongly rebuked any characterization of her as a liberal ideologue. The professors believed Judge Sotomayor to be a moderate, pragmatic, and incrementalist jurist across all areas of law.

Judge Sotomayor’s criminal law record has been recently highlighted by the White House and the Democratic majority of the Senate Judiciary Committee (which released a report yesterday on 800 criminal cases) as an example of how she is a “consensus judge.” Professors echoed this sentiment, calling her decisions workmanlike and centrist. Charles Ogletree, a Harvard Law School professor, said that Judge Sotomayor has not in any way expanded, enhanced, or departed from the precedent established by the Supreme Court on law enforcement issues. Robert Weisberg, a Stanford Law School professor, emphasized that in habeas corpus cases, Judge Sotomayor has been a “model of meticulousness” and strictly followed Congress’s statute.

Likewise, she has split evenly in ruling for plaintiffs or defendants in business cases: Columbia Law School Professsor John C. Coffee called her a “standout” for businesses in the field of class action certification (citing her participation in In re IPO Securities Litigation), while Arthur Miller, a New York University Law School professor, said she also has shown concern for consumers and public safety in litigation.

Sen. Mitch McConnell’s criticism of the Second Circuit’s short summary order in Ricci v. DeStefano might also be deflected by looking at Judge Sotomayor as a consensus builder; Prof. Miller said that on such a difficult case the three judges could only come to an unanimous result by eschewing elaborate language.

Harvard Law School Professor Laurence H. Tribe said that Judge Sotomayor is the “most confirmable” nominee in decades and that the extremely high number of professors signing the letter and their uniform endorsement was unprecedented.

Courtesy of PARADOCS, a hyperlinked version of the decision in Ricci, et al., v. DeStefano, et al. (07-1428) is available here [Note: the document is hosted on an outside download site because of its large file size (25 MB)].  All references within the opinion are hyperlinked to the relevant documents.

A few days after the President nominated Sonia Sotomayor, I labeled the question of her confirmation “over.” Along the same lines, I wanted to lay out why I think the hearings themselves will be a complete non-event.

Republicans have nothing significant to gain by making the hearing a media event, so they won’t. For her part, Judge Sotomayor is likely to adhere to the modern tradition of saying as little as necessary. The result is a conspiracy of convenience in which not much is likely to happen.

Start with the inevitable outcome. Absent a bombshell development, she is going to be confirmed. Democrats are about to have a 60-vote Senate majority. Moderate Republican Senators – e.g., Collins and Snow – will make up for any (unlikely) Democratic defection.

Nor is there any prospect of an effort to mount a filibuster. Opponents haven’t developed a narrative justifying that step.

The vote in the judiciary committee won’t be close either. Democrats have a dramatic 12-7 advantage in membership.

There are political disadvantages to drawing attention to the hearings. To the extent it has considered the question, the non-ideologically committed public – effectively, independents – seemingly likes her and thinks she should be confirmed.

Judge Sotomayor is of course the first Latina nominee to the Court. This is a historic moment for Hispanics. The third appointment of a woman is also significant, though less profound. Those are important electoral groups.

Beyond demographics, Judge Sotomayor has a compelling life story. She not only came from a poor upbringing, but she continues to live very modestly after a career of almost exclusive public service.

She is objectively qualified. She graduated at the top of her class at Princeton and did well at Yale. She was a prosecutor, private practitioner, trial judge, and appellate judge.

However positive the impression is now, it’s only going to gravitate further in that direction under what will presumably be a well-orchestrated White House roll out of her, the family, colleagues, and experts.

Publicly attacking Judge Sotomayor in the general population puts a Senator on the wrong side of public opinion.

Given that there is no real prospect of derailing Judge Sotomayor confirmation, and the prospect of causing self-inflicted wounds by attacking her, I expect that conservative Senators will lower their profile. They will note their opposition and state their principles, but limit their strong advocacy (that otherwise could come across publicly as badgering) to the already committed conservative community.

Contrast that with the array of “speakers” who have everything to gain with aggressive advocacy in support of Judge Sotomayor. The Judge herself will speak, and by all accounts will present herself very well. The Administration, liberal advocacy groups, supporting senators, and other varied supporters are all fully engaged.

They have a significant audience, with much to gain beyond the votes of undecided Senators in this inevitable confirmation. This will be a celebratory event for Hispanics, who will associate it with the President. Women will appreciate the Court’s greater diversity.

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