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.
NPR and the Washington Post both have extensive coverage of yesterday’s arguments in Graham and Sullivan cases. The WSJ Law Blog predicts that the Court will eventually decide on a compromise that would avoid establishing a categorical rule and would instead allow judges sentencing juveniles to consider the age of a defendant and the nature of his crime; the Chief Justice proposed such a system in what the author characterizes as an effort to appeal to Justice Kennedy’s swing vote. Dahlia Lithwick at Slate summarizes the arguments made in both cases (with a Sesame Street touch) and concludes only that nothing has yet been concluded.
NPR’s Morning Edition has a story on today’s first case, Pottawattamie County v. McGhee, in which the Court will consider whether prosecutors can be held liable under Section 1983 for procuring and then using false testimony to convict a defendant. At ACSblog, Prof. Emily Garcia Uhrig previews Wood v. Allen, in which the Court will hear oral argument this morning. Wood, an Alabama death row inmate, alleges that his trial counsel was ineffective; as Uhrig explains, the case also involves the interaction between two sections of the Antiterrorism and Effective Death Penalty Act – one allowing for federal review of state court factual determinations and the other requiring a presumption in favor of such determinations.
Jones v. Harris Associates continues to headline coverage of the Supreme Court this morning. The WSJ Law Blog, Chicago Tribune, and Bloomberg all feature recaps of yesterday’s oral arguments. In the blogosphere, Kim Krawiec at the Conglomerate agrees with Judge Easterbrook’s “basic argument.” She acknowledges that high levels of “interconnectedness” on corporate boards may lead to “favoritism…to the detriment of investors” but contends that there are enough competitive mutual funds that unhappy customers can transfer their assets to mutual funds with more reasonable fees. And even though there are acknowledged problems with the market model of setting these fees, she argues, it is not clear that “courts can systematically do better” than the market.
According to Dow Jones Newswires (appearing in the Wall Street Journal), three Democratic lawmakers plan to introduce a bill next week that would override the U.S. Supreme Court’s ruling in Ashcroft v. Iqbal by lowering the standards for a case to move to the discovery stage. Author Kristina Peterson writes that reversing the Iqbal opinion could “make it far more difficult for companies to dismiss lawsuits before starting the expensive discovery process.” Democrats believe that the current standards discourage citizens from bringing “discrimination to the discovery stage.” Rep. Henry Johnson (D-GA) called the Supreme Court decision an “unexpected gift for the business community,” while Rep. Jerrold Nadler (D-NY) criticized it for “effectively slam[ming] shut the courthouse door on legitimate plaintiffs based on the judge’s take on the plausibility of a claim, rather than on the actual evidence.”
The New York Times discusses the separation-of-powers issues involved in Kiyemba v. Bush, in which the Court granted certiorari yesterday. At issue in the case is whether a judge can order a detainee released onto United States soil. The Wall Street Journal, Washington Post, and Los Angeles Times also have coverage of the case, which was filed by thirteen Guantanamo Bay detainees who are Uighurs, or ethnic Muslim Chinese, and are no longer considered enemies of the United States. NPR predicts that Kiyemba could be either a showdown between the three branches of government or could “fizzle out” if the Uighur detainees are resettled before the decision is granted. The BLT summarizes the Court’s orders released yesterday.
Christine Hurt at The Conglomerate has this piece on last week’s Houston Chronicle article, which wondered if the presence of three Enron-related cases on this Term’s docket is more indicative of zealous Enron Task Force prosecution or effective Enron lawyering on appeal. One former prosecutor theorizes that the matter is so well-represented because Enron is an opportunity for government prosecutors to “develop new, aggressive theories to enhance their arsenal,” while law professor Adam Gershowitz credits the deep pockets of the defendants in procuring top-notch representation. In her response, Hurt downplays the significance of the high-priced lawyers, pointing out that their resources and expertise did not help them win at trial, and adds that the existence of defendants with “resources…‘on par’ with the government’s resources” does not exactly represent a perversion of the American justice system in the first place.
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.
Yesterday, six of the Justices participated in the 56th annual Red Mass at the Cathedral of St. Matthew the Apostle, reports the Blog of the Legal Times. Six of the sitting Justices are Roman Catholic (Sotomayor, Roberts, Scalia, Thomas, Alito, and Kennedy), but Justice Clarence Thomas was absent; Justice Stephen G. Breyer, who is Jewish, attended the service, as did Vice President Joseph Biden. The Mass drew special attention both because of the record number of Roman Catholics on the bench and because of the homilist’s strongly articulated anti-abortion views. Here’s Jess Bravin’s report on the Mass in the Wall Street Journal Washington Wire Blog.
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.
As the Justices will hold their first private conference this Tuesday, the Supreme Court press corps turns its focus to the upcoming docket. Tony Mauro writes in the National Law Journal on the dominance of business cases in OT09 : more than half of the 45 docketed cases address business issues. His article focuses specifically on how former intellectual property lawyer and current Associate Justice Sonia Sotomayor may vote in cases ranging from patents (Bilski), antitrust (American Needle), or mutual funds (Jones). BusinessWeek also has a preview of OT09 business cases.
The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court. The Magazine likens the modern confirmation process of Court nominees to a “kabuki dance,” because Senators ask useless but inflammatory questions for the cameras and the candidates are too tight-lipped to reveal a good sense of their judicial philosophy. The article traces this trend back to Justice Ginsburg’s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked. Four authors propose reforms to the process: David Stras suggests that nominees be required to analyze five previous Court decisions, Stephen Carter wants to focus on nominees’ professional qualifications rather than disqualifications, Seth Rosenthal proposes a courtroom setup in which litigators ask questions, and Richard Davis is ready to dispense with hearings altogether for elections.
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.
A three-judge panel of the Indiana Court of Appeals unanimously struck down a state voter ID law previously upheld by the United States Supreme Court in Crawford v. Marion County Election Board (2008). According to the New York Times, the Indiana Court found that the voter ID law “violated the state’s equal protection guarantee because it did not require mail-in voters and residents of nursing homes to provide state-approved identification.” Because of the conservative nature of the current Supreme Court, Professor Michael J. Pitts believes that the state courts might be ‘“more amenable to these kinds of lawsuits than the federal courts,”’ and that state courts are more likely to be where the ‘“battles are going to be played out.”’
In the Wall Street Journal, Jess Bravin scrutinizes a comment made by Justice Sotomayor during the Citizens United oral argument – her first session on the Court: “[judges] created corporations as persons, gave birth to corporations as persons…There could be an argument made that that was the court’s error to start with.” Bravin reads in these words hesitation to grant expansive corporate rights and a hint of her vote in Citizens United. By contrast, questions asked by members of the Court’s conservative majority during the Citizens United argument suggest they believe corporations have broad First Amendment rights. Bravin observes that this position is consistent with the Court’s steady expansion of corporate rights into the 1970s, though the Court’s more recent precedents are less decisive.
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