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Friday Round-up

With its five conservative justices and Chief Justice Roberts at the helm, the Court was expected to take bold strides to the right last year.  Highlighting last term’s NAMUDNO v. Holder case on the Voting Rights Act, decided by a surprising 8-1 margin, Barry Friedman at The New Republic argues that the Court is actually following a “minimalist” approach by issuing narrower rulings, declining to overturn popular laws, and taking low-profile cases on such sensational issues as commercial arbitration.   Nor have the conservatives demonstrated solidarity: occasionally members of the conservative majority, especially Justice Kennedy, write separate opinions fracturing the force of a decision, or even break ranks for a liberal win.  Friedman offers the explanation that justices fear being overruled by Congress, as happened this year when Congress passed the Lilly Ledbetter Fair Pay Act to undo the Court’s ruling in Ledbetter v. Goodyear.

Discussion continues about how, if at all, the Court should incorporate the Second Amendment against state and local governments.  A Washington Post editorial argues that the Court, if it chooses to incorporate the amendment, should at least preserve some local gun regulations for the safety of urban areas.  At Sentencing Law and Policy, Douglas Berman suggests that incorporation would spawn new legal battles over which “sensitive places” warrant gun restrictions notwithstanding a right to bear arms.  Berman showcases a Christian Science Monitor article from earlier this week on debates in Arizona over whether guns should be allowed in churches, or even bars.

Following a comment by Kevin Reitz, Sentencing Law and Policy also ponders whether the precedent Harris v. US could be endangered by US v. O’Brien, one of the cases the Court agreed to hear on Tuesday.  Harris held that the requirement that a jury decide facts used in sentencing enhancement does not apply to enhanced mandatory minimum sentences that do not increase the available maximum penalty.  If Justices Ginsburg, Stevens, and Thomas are prepared to dissent again, and Justice Breyer could be persuaded to abandon his lukewarm concurrence of 2002, Sotomayor could be a fifth vote for overruling Harris.

A New York Times editorial suggests that the recent Alabama Supreme Court decision in 1568 Montgomery Highway Inc. v. the City of Hoover, if appealed to the Supreme Court, could be a good case to test whether “public morality” is a legitimate state interest.  The Alabama case upheld a state law banning the sale of sexual devices as a danger to public morality.  The Times sees the decision as an effort to interpret the reach of privacy rights found in Lawrence v. Texas, the U.S. Supreme Court decision that struck down a Texas anti-sodomy law in 2003.

Following the story of Romell Broom’s botched execution in Ohio, which has triggered much speculation about the future of the Court’s Eighth Amendment jurisprudence, the local Columbus Dispatch reports that the Ohio Supreme Court declined to grant a stay in the next Ohio execution, scheduled for October 8.  But Berman at Sentencing Law & Policy would not be surprised if the Sixth Circuit grants a stay.

Linda Greenhouse reminds Court observers in a New York Times op-ed that when Justice Stevens retires, they will finally glimpse the personal papers of former Justice Potter Stewart, on the Court from 1958-1981.  Stewart donated his papers to Yale, his alma mater, with the caveat that they remain sealed until none of the justices with whom he served remained on the Court.  Stevens will be the last one to go.  Greenhouse regrets, however, that retired Justice David Souter has required a 50-year seal on his own papers.  She hazards that Souter may have been the broker behind the narrow ruling in NAMUDNO v. Holder.  But the answer remains sealed until 2059.

Asked about his customary silence during oral arguments, Justice Thomas downplayed the importance of oral arguments for changing votes and opined that other justices should allow the advocates to speak without interruption.  The questioner was former Solicitor General Ted Olson at Southern Methodist University, as reported at Law.com.

Above the Law highlights Justice Scalia’s statement that the legal profession attracts too many of the brightest away from more socially “productive” endeavors.  In an interview given to C-SPAN for their upcoming Supreme Court documentary, Scalia said “I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”