Friday Round-up

By Anna Christensen
on Oct 30, 2009 at 10:14 am

The debate is heating up over one of November’s first arguments: three publications have coverage today on Jones v. Harris Associates (08-586), which will be argued before the Supreme Court on Monday.  At the Wall Street Journal, Jess Bravin and Jane J. Kim assess the case’s core issues, while USA Today has an article detailing Jones’ background, enumerating the arguments, and speculating on potential outcomes, including the possibility that the Court will order mutual funds to pursue stricter disclosure policies with regard to their spending.  Conglomerate Blog also previews Jones, offering a detailed recap of the lower court proceedings.

The Washington Post’s Robert Barnes covers next month’s arguments in Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621), detailing in depth the arguments on both sides of the case, which will address whether the practice of sentencing juvenile defendants to life without parole constitutes a violation of the Eighth and Fourteenth Amendments.  A Daily Journal article, available at How Appealing, reports that the cases’ outcomes will have implications for a number of convicted felons sentenced as juveniles to life without parole and suggests that, given the issue’s ideological volatility, Justice Kennedy’s swing vote will be vital.  And at ACSblog, Charles Ogletree (who submitted an amicus brief on behalf of petitioners in the cases) urges the Court to affirm the reasoning put forth in Roper v. Simmons by ruling that the traits unique to juvenile defendants – impulsiveness, vulnerability, and potential for rehabilitation – should shield Graham and Sullivan from sentences of life without parole.

Also looking forward, Day Pitney’s Martin Magnusson, writing for ACSblog, previews Pottawattamie County v. McGhee (08-1065), which is scheduled to be argued before the Court on Wednesday, November 4.  Magnusson details the case’s background and addresses the current precedent surrounding prosecutorial immunity, which is the central issue at stake.

Concurring Opinions has links to a number of articles published in the October issue of the William and Mary Law Review, including several which address Supreme Court precedent.  Among them is an editorial piece on Jones v. Harris, which is being argued next week.  Also at Concurring Opinions are links to a series of articles from the October issue of the Vanderbilt Law Review.  Most notably, this month’s issue includes a commentary on DC v. Heller (07-290), in which author Andrew Gould suggests an analytical framework for resolving the questions left open in that the 2008 decision.

A piece in this month’s Columbia Law Review reflects on the Court’s decision in Heller as well, observing that the opinion “left lower courts and legislatures adrift on the fundamental question of scope.”  In response to this ambiguity, the article’s author, Darrell A.H. Miller, proposes that the right to bear arms be treated similarly to the right to own and view adult obscenity: strongly protected in the home, and subject to restriction otherwise.  The full text of the paper is available here.  At Volokh Conspiracy, Eugene Volokh, writing for the Columbia Law Review’s “Sidebar” publication, has a rebuttal to Miller’s piece, in which he argues that guns cannot be easily analogized to obscenity and that the Second Amendment does not readily parallel other constitutional rights.  In particular, Volokh notes, “[t]he premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home.  That premise does not extend to private gun ownership under Heller.” Miller’s reply to these rebuttals is available at the Columbia Law Review as well.

David Kopel, also writing for Volokh, previews his own forthcoming piece, which will appear in the December 2009 issue of the Connecticut Law Review.  Kopel’s article will address school gun bans in the context of Heller, relying on policy and empirical evidence to explore whether Heller permits – and whether it should permit – individuals over the age of 21 to carry weapons on campus.

A post at PrawfsBlawg reflects on Justices Breyer and Scalia’s recent visit to the University of Arizona’s Rogers College of Law, where they engaged in debate over statutory and constitutional interpretation.  The post notes Justice Scalia’s comment that the idea that same-sex marriage is constitutionally protected was “absurd,” speculating that this view might impact the Justice’s ability to participate in a potential case concerning the issue.

David Bernstein, writing for The Volokh Conspiracy, has a review of Mel Urofsky’s new biography of Louis Brandeis, arguing that Urofsky’s portrayal exaggerates the Justice’s influence on the Court’s adoption of the “incorporation doctrine.”  To this end, Bernstein points to evidence that suggests an earlier push for such a doctrine, highlighting Court decisions before Brandeis’ time that reference the possibility of constitutional protection against certain state actions.

Yesterday, Chief Justice Roberts and Justices Scalia and Alito gathered, along with the Secretary of Homeland Security, the Deputy Attorney General, and others, at the Supreme Court to pay tribute to the late Italian judge Giovanni Falcone, who was assassinated in 1992.  The Justices praised Falcone for his efforts against the Mafia and for his integrity, recalling “extraordinarily fond and strong memories” of his commitment to justice.  The BLT has coverage of the event.

At Concurring Opinions, Spencer Waller recaps a recent C-Span podcast interview with Justice Stevens, highlighting the Justice’s opinions on the cert. pool, docket expansion, and the importance of diverse legal backgrounds on the bench.  According to Waller, the interview also gives Justice Stevens the opportunity to recall his most memorable experience: throwing the first pitch at Wrigley Field at the age of 85.