on Sep 15, 2009 at 9:00 am
Richard Hasen keeps the Citizens United conversation going at Slate, commenting on the impact of the Courtâ€™s growing trend towards â€œbroad, constitutional holdingsâ€ in â€œHow Liberals Can Win By Losing at the Roberts Court.â€Â Citing a recent Seventh Circuit opinion â€“ and the Courtâ€™s affirmation of it â€“ in the voter identification case Crawford v. Marion County, Hasen argues that bad losses in election law cases are sometimes best avoided by staying out of the Supreme Court.Â Likewise, he points out, the impact of losses at the Supreme Court can be mitigated by narrower opinions, rather than sweeping ones.Â If the Court decides in Citizens Unitedâ€™s favor but on narrow statutory grounds, Hasen anticipates, â€œthere will be a lot of high-fives among supporters of campaign finance reform, from Elena Kagan on down.â€
In the same vein, Carl Pope comments on Citizens for Huffington Post, pointing out that Chief Justice Robertsâ€™ efforts to shape himself as an incrementalist have led to expectations that he will encourage a narrow ruling in the case. Pope also offers a unique view of the significance of Alito, Scalia, and Thomasâ€™s views on Citizens United, arguingÂ that if the three justices choose to rule in the organizationâ€™s favor, their decisions will represent an â€œenormous incompatibilityâ€ with their purported judicial doctrine of â€œoriginalismâ€; that is, the claim that â€œthat it is not previous Supreme Court precedent that should govern, but instead the intentions and understanding of those who drafted the Constitution (and its amendments).â€
Balkinization recaps Jeff Toobinâ€™s recent New Yorker article on Obamaâ€™s â€œpost-partisanâ€ approach to judicial nominations (Supreme Court and otherwise), emphasizing Toobinâ€™s treatment of the idea that the Obama administration will shift its focus away from court fights and toward legislative efforts.Â (In related news, Legal Beat reports that Obama has just nominated Virginia Supreme Court Justice Barbara Milano Keenan for a seat on the 4th Circuit).Â Balkanization also covers this past Saturdayâ€™s Washington Independent article on Senator Jim DeMintâ€™s opinion on the constitutionality of social security and health care reform; Balkin points to the Courtâ€™s 1937 decision in Steward Machine Company v. Davis, arguing that DeMintâ€™s stance might be based on the binding precedent of cases like this one.
The AP is reporting that Sandra Day Oâ€™Connor criticized the tradition, maintained in about two dozen states, of judicial elections. Arguing that this practice leads to judges hesitant to make unpopular decisions, the former justice advocated for a universally merit-based system of judicial appointments, pointing out that landmark decisions like Brown v. Board of Education might not have been possible had the justices been concerned with the public opinion of their constituents. Oâ€™Connorâ€™s comments came during a Seattle conference on the Supreme Courtâ€™s recent decision in Caperton v. Massey Coal, in which the Court held that elected judges must step aside in cases in which they had received large campaign contributions from the parties.
In the NYT column “The Local”, Tina Kelley discusses todayâ€™s oral arguments in an ongoing Third Circuit case brought in response to a school district policy barring Christmas Carols.Â According to attorneys for the parent who brought the suit, if the Court of Appeals does not find that a constitutional violation took place, they will petition for cert.
Finally, the BLT covers the ongoing legal battle over the appropriateness of the name â€œRedskinsâ€ as the moniker for Washingtonâ€™s NFL football franchise, reporting that lawyers for a group of Native Americans filed a cert petition today in Susan Harjo v. Pro-Football, Inc. While the group has petitioned for a name change under the Lanham Act, which bars disparaging trademarks, BLT reports that the case will turn on an interpretation of the doctrine of laches, which â€œacts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.â€