Tuesday Round-up

By Jay Willis
on Oct 27, 2009 at 10:12 am

Adam Liptak at the New York Times covers the continuing legal battle over gay marriage, and in particular the lawsuit – filed by former Solicitor General Ted Olson – pending before U.S. District Judge Vaughn Walker in California.  Liptak notes that public support for gay marriage is not as widespread as the support for homosexual sex and interracial marriage when the Supreme Court ruled on those issues.  He quotes Andrew Koppelman of Northwestern Law School, who posits that arguments in favor of gay marriage “will have trouble attracting votes from the current justices.”  The San Francisco Chronicle also covers Judge Walker’s decision to order sponsors of California’s ban on same-sex marriage to release campaign strategy documents.  Opponents of the ban believe that the documents may contain “evidence of anti gay bias” that would be helpful in their fight to overturn it.  Judge Walker’s continuing push for a full trial leads many to believe that he is preparing the matter for eventual Supreme Court review.

In a Brookings Institute paper released Friday, Russell Wheeler discusses President Obama’s comparatively slow rate of filling empty seats.  He points to both the time-consuming nomination of Justice Sotomayor and the salary cuts associated with private practitioners entering the judiciary as possible reasons why the process has slowed.

Justices Scalia and Breyer appeared at the University of Arizona College of Law on Monday to discuss “Principles of Constitutional and Statutory Interpretation.”  News reports indicate that their diverging legal philosophies made for some spirited debate.  The East Valley Tribune reported that Scalia advocated in favor of a narrow originalist interpretation of the Constitution, accusing the Court’s liberal wing of “inventing new rights nobody ever thought existed,” such as the rights to abortion and equal pay and to engage in homosexual sodomy.  Breyer, by contrast, asserted that the Constitution’s framers implemented “a set of values, not a particular set of 18^th century circumstances”; in his view, the Court may correctly infer new rights that are either consistent with these values or simply were not considered when the Constitution was drafted.  The Arizona Daily Star and the Associated Press also have coverage.

Elizabeth Pollman at the Yale Law Journal writes on the changing business and cultural climate that may have led the Court to reconsider the question in Citizens United.  She argues that the Court should rule in favor of the Federal Election Commission; in her view, overturning the Court’s previous rulings in Austin and McConnell would allow businesses to make political donations with money procured from investors “who did not intend the money to be used for political persons and who will not likely obtain relief.”  Describing the recent explosive expansion of American stock ownership and the numerous hurdles that an objecting investor would have to overcome to obtain relief, she concludes that “the longstanding concern about the lack of stockholder assent to corporate political speech is more important than ever.”

Finally, the Sacramento Bee has an op-ed in this morning, originally run in the Fort Worth Star-Telegram, on the presence of cameras in the courtroom of the new Supreme Court of the United Kingdom. Although the U.S. Supreme Court – most notably retired Justice David Souter – has been loath to allow cameras in the courtroom, the author notes that the success of its English counterpart might prompt the Court to reconsider its position in future years.