Tuesday round-up

By Jay Willis
on Oct 20, 2009 at 8:46 am

Christine Hurt at The Conglomerate has this piece on last week’s Houston Chronicle article, which wondered if the presence of three Enron-related cases on this Term’s docket is more indicative of zealous Enron Task Force prosecution or effective Enron lawyering on appeal.  One former prosecutor theorizes that the matter is so well-represented because Enron is an opportunity for government prosecutors to “develop new, aggressive theories to enhance their arsenal,” while law professor Adam Gershowitz credits the deep pockets of the defendants in procuring top-notch representation.  In her response, Hurt downplays the significance of the high-priced lawyers, pointing out that their resources and expertise did not help them win at trial, and adds that the existence of defendants with “resources…‘on par’ with the government’s resources” does not exactly represent a perversion of the American justice system in the first place.

Referencing Justice Sotomayor’s oft-discussed “wise Latina” comment, Mark Graber at Balkinization explores a bit of legal theory and hypothesizes about the true meaning of a justice’s so-called subjectivity.  Graber outlines the differences between commonly accepted beliefs, those rational beliefs that depend on opinion “that all persons do not hold,” and those based purely on taste. In his view, stating that a judge employs personal, subjective beliefs in forming an opinion, “beliefs that they think [are based on] sound reason even though others disagree,” is essentially equivalent to stating that the judge has not advanced sufficiently convincing arguments for his or her case.

Sentencing Law Blog looks at Justice Stevens’s recent comments in the USA Today, in which Stevens described as noteworthy the opinion he authored in Apprendi v. New Jersey, which strengthened the ability of juries to determine enhanced sentences in criminal cases.  The author considers whether Stevens’s comments might indicate his willingness in this term’s United States v. O’Brien to eliminate the doctrine, originally outlined in Harris v. United States, that allows judges to invoke mandatory minimum sentences through factfinding at sentencing and essentially limits the maximum penalty that can be handed down by a jury.

Eugene Volokh comments on Justice Kennedy’s decision to stay the release of the names of signatories to Washington’s Referendum 71.  Though he earlier outlined that he believes releasing the names is in the best interests of open government and accountability, Volokh points out that “[o]nce the names are released, the attempt to enjoin the release will become moot.” Delaying the release allows the proponents of Referendum 71 the chance to appeal the Ninth Circuit decision and gives the Supreme Court the opportunity to make a careful decision regarding whether to grant cert. in the matter.  This op-ed at The Olympian (WA) echoes Volokh’s contentions, arguing that the signatories “are participating in [an] open legislative process, not signing some sort of secret ballot.”  The state’s Public Records Act affirms that just as legislator’s votes are a matter of public record, citizens have “the right to know which of their fellow citizens are sponsoring referendums and initiatives.”

Update: Orin Kerr at Volokh posted an afternoon follow-up to the above-referenced Daily Colonial article.  Kerr, who attended the conferences, believes Kennedy actually stated that he “never met a brief he couldn’t put down in the middle,” which makes the justice’s comment less about his critical swing vote and more about the importance of brevity for attorneys filing legal briefs before the Court.

Also at Volokh, after reading Joan Biskupic’s USA Today piece on Justice Stevens, Orin Kerr at the Volokh Conspiracy attempts to reconcile the justice’s description of himself as a judicial conservative with his role as a leader of the Court’s liberal wing.  He argues that Justice Stevens is most likely using an older definition of judicial conservatism in which the term referred not to a particular political ideology but to the judges that “decid[e] cases narrowly and pay[] attention to precedent.”  Under this definition, Kerr explains, a “conservative” justice could hold politically liberal views by adhering to the conservative principles of respecting precedent and avoiding sweeping changes to the law.

Finally, the Daily Colonial at the George Washington University posts a recap of Justice Kennedy’s rare public appearance at its Fall 2009 Law Review Symposium last week.  Kennedy spoke frankly with students and alumni about the gravitas of the Supreme Court’s power and about his especially critical role in this process as the Court’s swing vote (Kennedy quipped: “I never read a brief I couldn’t go down the middle on”).  The justice enthusiastically lectured on the influence of English Common Law on the American legal system and encouraged attendees to “read a good translation of the Magna Carta.”