on Sep 24, 2009 at 8:53 am
The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court.Â The Magazine likens the modern confirmation process of Court nominees to a â€œkabuki dance,â€ 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.Â The article traces this trend back to Justice Ginsburgâ€™s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked.Â 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 ABA also observes that two cases on the Courtâ€™s docket this term, Salazar v. Buono and U.S. v. Stevens, will give Justice Sotomayor the chance to leave her mark on evolving Court precedent on the First Amendment. Â Other cases this term that will settle longtime legal disputes include Sullivan v. Florida and Graham v. Florida, Bilski v. Doll, Jones v. Harris Associates, and American Needle v. NFL.Â Of special interest to the ABA, two cases will decide questions about the advice legal counsel may provide to their clients: Padilla v. Kentucky and Milavetz, Gallop & Milavetz v. U.S.
While the only obvious blockbuster of this term was already argued in Citizens United, some cases prove monumental only in retrospect, argues Daniel Fisher in Forbesâ€™ business section.Â As mentioned earlier this week in the National Law Journal, last termâ€™s Ashcroft v. Iqbal proved an unexpected tool for corporate defendants like Coca-Cola to dismiss lawsuits against them.Â Similarly, Court rulings in three cases this term, if broad enough, could have big consequences.Â Bilski v. Kappos could impede patents of unconventional inventions like software, American Needle v. NFL could give the NFL â€œcarte blanche to behave like a cartel and eliminate competition,â€ and Jones v. Harris Associates could â€œrelease a flood of new litigationâ€ over mutual-fund fees.
The Los Angeles Times continues the discussion over United States v. Stevens, underscoring the tension between free speech advocates and animal rights activists.Â Free speech defenders argue that animal rights do not constitute a compelling interest to restrict speech, while animal rights defenders argue that videos depicting animal cruelty are not a protected class of speech under the First Amendment.Â At stake are decade-old federal laws against marketing such depictions.
The botched execution of Romell Broom in Ohio is attracting more commentary, this time at On Point.Â Matthew Heller says there is â€œno doubt Broom was tortured,â€ but is uncertain how the Court would regard the case in light of its Resweber precedent.Â With the Resweber dissent, Heller argues that an execution can be cruel and unusual even if the executioners lacked malevolent intent. Â Kent Scheidegger at Crime and Consequences took a contrary position last week.
While the Court has yet to grant cert in an education law case this term, The School Law Blog previews several pending appeals on controversial education topics like the pledge of allegiance, book censorship, and religious messages at graduation ceremonies.
Declan McCullagh at CBSâ€™ Taking Liberties blog reports that the Ninth Circuit Court of Appeals is poised today to decide â€œthe next big gun rights questionsâ€: whether state gun control laws are constitutional.Â The Supreme Courtâ€™s decision in DC v. Heller last year ruled that individuals have a right to bear arms under the Second Amendment, but left open whether that right can be used to challenge state as well as federal laws.Â The Supreme Court itself may take up the state â€œincorporationâ€ question at its next conference on September 29, when it decides whether to hear National Rifle Association v. Chicago, McDonald v. Chicago, and/or Maloney v. Rice.
As reported by Capital Defense Weekly, the Supreme Court stayed the execution of Kenneth Moseley yesterday, pending its review of the case Wood v. Allen, which will decide the similar issue of whether a trial lawyerâ€™s failure to raise objections during the punishment phase of his clientâ€™s trial made his legal counsel constitutionally inadequate.
The first-ever Seton Hall law graduate will clerk for the Court this term.Â The ABA Journal Magazine examines the hiring practices of individual Court justices, which overwhelmingly favor graduates of top-ten law schools.Â Justice Scalia is most outspoken about his policy of hiring graduates of elite schools.
Another article at the ABA Journal Magazine traces the history of the notoriously unreliable lie detector technology and reports on promising developments.Â One new test at Northwestern University that detects recognition of information with a 97% accuracy rating could be useful for interrogating terrorist suspects.
Acclaim for Justice Sotomayorâ€™s career in baseball law mounts on BLT after the news yesterday that she will throw the first pitch at Saturdayâ€™s Red Sox v. Yankees game. Professor Brad Snyder writes that Sotomayor is the â€œmost important federal judge in the history of baseball except Judge Kenesaw Mountain Landisâ€ (and he adds that â€œJustice Sotomayor is a much better judge than Judge Landis”).