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Thursday round-up

One decision, two arguments, and a stay kept Supreme Court journalists and bloggers busy yesterday.

Drawing the most attention was the Court’s five-to-four decision to continue its temporary stay of a plan to broadcast the Proposition 8 trial to five federal courthouses across the country.  The New York Times and this blog noted that the extended stay effectively shuts off the possibility that any portion of the trial, which is expected to last only a few weeks, will be broadcast.  The Washington Post points out that the Court’s liberal bloc is “joined for the first time in an ideological split by [Justice] Sotomayor.”  Ed Whelan extracted some of the key excerpts from the Court’s decision, and Eugene Volokh has two posts at the Volokh Conspiracy critiquing elements of the opinions.

Some commentators saw analogies between the Court’s action and other well-known cases, while others ruminated on what it might portend for the ultimate outcome of the case, should it reach the Court.  Rick Hasen at the Election Law Blog drew a connection between the Court’s decision and the eagerly-awaited Citizens United case (more on that to come): not only does the Court cite briefs from Citizens United, but “both cases feature arguments by conservatives that they will face harassment for expressing their views publicly.”  Orin Kerr at the Volokh Conspiracy examined the similarities between the Court’s order and Bush v. Gore, writing that “the judicial instinct at play here is the objection of U.S. Supreme Court Justices when they see lower court or state court judges intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process.”  The WSJ Law Blog asks, “Is this ruling a harbinger of how the Court might rule on the merits if and when Perry v. Schwarzenegger makes its way to One First St., N.E.?”  Its answer: “Given the split, it’s hard not to wonder.”  Dale Carpenter at the Volokh Conspiracy sees the stay as “a potentially ominous development for the pro-[same-sex marriage] litigants.”

Additional coverage is available from the Wall Street Journal, CNN, the L.A. Times, the Christian Science Monitor, the BLT, the First Amendment Center, and DC Dicta.

The Court’s late-afternoon order in the Proposition 8 case stole the spotlight from the morning’s much-anticipated argument in the NFL antitrust case, American Needle v. NFL.  The sentiment at oral argument is evident from today’s newspaper headlines: “Supreme Court justices skeptical of NFL’s effort to quash antitrust suit” (L.A. Times), “Supreme Court seems disinclined to give NFL antitrust exemption” (Washington Post), “Justices Skeptical of N.F.L.’s Court Claim” (New York Times), and “They Are So Not Ready for Some Football” (Slate).  SCOTUSblog featured podcasts with counsel on each side of the case, as well as an argument recap.  Further coverage of the case is available from NPR, USA Today, ACSblog, and the Wall Street Journal.

Courthouse News Service and JURIST offer coverage of the second case argued at the Court yesterday, Jerman v. Carlisle, which Matt previewed on SCOTUSblog here.  (Howe & Russell represents the petitioner.)

The Court also released a decision in an argued case yesterday, though the case it did not decide may have attracted more notice. carried a Greenwire story on the Court’s decision in NRG Power Marketing v. Maine Public Utilities Commission, which “reversed a lower court’s decision that allowed third parties to meet a less stringent standard than contracting parties when challenging certain energy agreements.”  At the Volokh Conspiracy, John Elwood writes that the opinion “appears to reflect a fairly market-friendly view of the world.”  Tony Mauro offers an “interesting note” about the case at the BLT: “Connecticut Attorney General Richard Blumenthal, who has announced he will run for Sen. Chris Dodd’s soon-to-be-vacant seat, argued and lost the case.”

The absence of a decision in Citizens United yesterday may have made a bigger splash.  Dan Eggens of the Washington Post writes, “News conferences were scheduled and telephone briefings were penciled in, but Washington advocacy groups were disappointed yet again Wednesday: The Supreme Court did not issue its long-awaited decision on campaign finance laws.”  Sara Jerome at National Journal’s Under the Influence blog says that “[c]ampaign-finance watchers are getting antsy.”  The delay has further convinced the Volokh Conspiracy’s John Elwood that “the decision will be a ‘dog’s breakfast’ of separate opinions.”


  • Constitutional Law Prof Blog has a detailed analysis of Tuesday’s oral argument in United States v. Comstock.
  • CNN’s Bill Mears has a piece on Tuesday’s arguments that highlights notable quotations from Justice Scalia.
  • Gawker posted a dispatch from Slate Supreme Court correspondent Dahlia Lithwick.  Lithwick reported that she almost started “a mini press riot” when she got a hunch at yesterday’s oral argument that Justice Thomas might ask his first question since 2006.  (He did not.)
  • The Chicago Tribune has two articles about the Asian carp dilemma. (Michigan has asked the Supreme Court to order Illinois to close its locks to keep the ravenous fish out of Lake Michigan.)  The Tribune reports that if the locks are closed, “there would be an immediate effect on local boating businesses and could forever change a way of life on inland rivers and the Chicago Sanitary and Ship Canal.”  The paper says a decision could come as soon as Friday.
  • Doug Berman of Sentencing Law and Policy highlights a new book, Rising Road: A True Tale of Love, Race, and Religion in America, which features Hugo Black in his days as a defense attorney, long before he was nominated to the U.S. Supreme Court.