Wednesday Round-up

By Adam Schlossman
on Oct 28, 2009 at 10:41 am

According to Dow Jones Newswires (appearing in the Wall Street Journal), three Democratic lawmakers plan to introduce a bill next week that would override the U.S. Supreme Court’s ruling in Ashcroft v. Iqbal by lowering the standards for a case to move to the discovery stage.  Author Kristina Peterson writes that reversing the Iqbal opinion could “make it far more difficult for companies to dismiss lawsuits before starting the expensive discovery process.” Democrats believe that the current standards discourage citizens from bringing “discrimination to the discovery stage.” Rep. Henry Johnson (D-GA) called the Supreme Court decision an “unexpected gift for the business community,” while Rep. Jerrold Nadler (D-NY) criticized it for “effectively slam[ming] shut the courthouse door on legitimate plaintiffs based on the judge’s take on the plausibility of a claim, rather than on the actual evidence.”

The Associated Press (in the Dallas Morning News) reports that convicted murderer Reginald Blanton’s last-minute appeal was denied by the Supreme Court, and he was executed early Tuesday evening by lethal injection.  Blanton’s lawyer, John Carroll, argued that the execution warrant was invalid due to mistakes made by Blanton’s previous court-appointed lawyer. The state attorneys “acknowledged a typographical error in one-paragraph,” but were confident that, despite the error, the “intended subject” of the death warrant remained clear.

An op-ed in Tuesday’s Washington Post criticizes the Supreme Court’s decision last week to deny certiorari in Virginia v. Harris, in which the Virginia Supreme Court had held that a traffic stop based solely on an anonymous tip violated the Fourth Amendment. The Post questions both the Supreme Court’s refusal to hear the case and the Virginia ruling itself, citing Chief Justice Roberts’s written dissent that the Virginia decision provides drunk drivers “one free swerve” before they can be pulled over by the police.  The Post advises citizens to “continue to blow the whistle on suspected drunk drivers” despite the ruling, and the Birmingham News editorial board offers a similar opinion.

On Election Law Blog, Rick Hasen addresses efforts to pressure the Solicitor General to take the Emily’s List case to the Supreme Court (following the FEC’s decision not to seek rehearing en banc).  The best result for supporters of election law reform, Hasen writes, would be for the full D.C. Circuit to affirm the constitutionality of the Speechnow.org case, and for the Supreme Court to then decline to review the case. The Supreme Court, Hasen has repeatedly argued, is the “last place you want to be right now if you are trying to get progressive election law upheld.”

In his post on the Volokh Conspiracy, Ilya Somin discusses the possible reasons why the Solicitor General, in her petition for certiorari in United States v. Comstock, chose not to argue that Congress has the power under the Commerce Clause to “retain custody of ‘sexually dangerous’ persons held in federal prisons after their term of imprisonment ends.”