New “Round-up” post
on Sep 14, 2009 at 9:01 am
This week, we’re trying out a new daily feature on SCOTUSBlog that summarizes coverage of and commentary about the Supreme Court. Each morning a different contributor will post links and brief synopsis to supplement our round-up sidebar: I’ll be on Monday; Anna Christensen of Howe & Russell on Tuesday; Jay Willis on Wednesday; Erin Miller on Thursday; and Adam Schlossman of Akin Gump on Friday. Please send any feedback to scotusblog.feedback [at] gmail [dot] com.
Citizens United still dominates Court watchers’ commentary. Jeffrey Rosen argues in a NYTÂ Week in Review op-ed, “The Trial of John Roberts” that Citizens United will be a defining case for Chief Justice John G. Roberts, as Miranda was for Chief Justice Earl Warren in 1966. If the Court rules broadly and reverses its precedent in Austin v. Michigan by an ideologically divided majority, Roberts risks developing the image of a polarizing jurist. In Newsweek,Â Howard Fineman is similarly “suspicious” of the Roberts Court’s pro-business activism. He calls for the Court to allow corporate and union funding of political speech, but to set spending limits.
In his Washington Post column, George Will recaps the positions for and against the McCain-Feingold Act and the Court’s reaction during argument and reargument. He believes that “egregious and mischievous mistakes should be corrected before they produce torrents of bad precedents” and the Court will certainly overturn Austin.
On the Wall Street Journal‘s opinion page, Gordon Crovitz offers a unique angle on why McCain-Feingold is ineffective, commenting on how drastically technology has changed political speech since 2002. In the era of YouTube, when anyone can distribute “electioneering communications” with great ease and to a wide audience, restrictions on unions’ and corporations’ speech are undue.
At Election Law Blog, Rick Hasen–who has covered Citizens extensively–comments on Justice Scalia’s line of questioning at reargument and expresses concern that a narrow overturning of Austin for overbreadth would be “faux judicial restraint that obfuscates what the Court is really doing.” Hasen suggests that if the Justice wants to exercise judicial restraint, he ought to apply the doctrine of constitutional avoidance to the interpretation McCain-Feingold.
The Los Angeles Times’ opinion page suggests the Court strike a middle ground, overturning Austin and holding McCain-Feingold to be unconstitutional, but continuing to bar unions and corporations from contributing to campaigns directly. The Hartford Business Journal also calls for a compromise and encourages the Court to take up the proposal of the NRA in its amicus brief: nonprofit corporations could set up spending accounts made up of donations, setting up a distinction between individual and corporate sponsorship of political speech.
In other Court-related news, Jeffrey Toobin has this “Annals of Law” article in the New Yorker on President Obama’s judicial nominees and how he is moving away from traditional categories of “legal liberalism” or “judicial restraint.”Â Toobin discusses the selection of Sonia Sotomayor, whose fact-based opinions and lack of apparent ideology were in tune with Obama’s emphasis on pragmatism.Â Her confirmation hearings showed “that conservative rhetoric, if not conservative views, had become the default mode for Supreme Court nominees.” While this may in part have been to forestall Republican opposition and move the nominee along, it also indicates that “the progressive agenda in the Court is not the same” as that of the Warren Court or past legal liberals. Toobin suggests, with substantial evidence, that Obama believes change should come from the political process rather than from Court opinions–what’s more important to the civil-rights agenda than Court-mandated affirmative action is for liberal politicians to keep winning elections. The article concludes with a discussion on Democratic Constitutionalism and evolving academic perspectives on legal liberalism.
At the National Review Online, Jonathan Adler has a column discussing the upcoming Term and how significant it will be. Besides the addition of Justice Sotomayor, the Term promises to reveal “whether the Roberts Court will follow or depart from Rehnquist Court precedents” and will cover hot-button issues such as federalism, takings, separation of powers, and the First Amendment. He lists United States v. Comstock, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., Salazar v. Buono, United States v. Stevens, Bilski v. Doll, and Briscoe v. Virginia as the cases to watch.
Marcia Coyle of the National Law Journal has this article explaining Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al. (08-861), which will challenge the constitutionality of the corporate regulatory agency. The National Law Journal also last week discussed the habeas petition of “Survivor” winner Richard Hatch, who is claiming wrongful imprisonment and prosecutorial misconduct. Hatch was placed into solitary confinement after appearing on NBC and calling into a local radio show to dispute the U.S. attorney’s charges and to suggest that he was being prosecuted because he was gay.
The Huffington Post discusses in the context of Illinois Gov. Rod Blagojevich’s prosecution the honest-services fraud law that is currently being challenged in two separate OT09 cases, Weyhrauch v. United States and Black, et al. v. United States. The first case is an appeal from former Alaska state Rep. Bruce Weyhrauch and the latter from media mogul Conrad Black and ex-Enron CEO Jeffrey Skilling. In Justice Scalia’s dissent from the denial of certiorari of another recent petition on honest-services, he said clarity was needed on the law’s meaning.
The New York Times follows up on California’s parole and early release programs. The Supreme Court refused on Friday evening to interfere with a federal court order requiring the state of California to draw up a plan for the mandatory release of up to 46,000 prison inmates to relieve overcrowding in state penal facilities. Governor Schwarzenegger has indicated he will continue to appeal future district court rulings.