Thursday round-up

By Adam Chandler
on Jan 21, 2010 at 9:15 am

Yesterday was a busy day at the Court—with three decisions and two arguments—but the action was upstaged when today’s unexpected sitting was announced.  Noted by the New York Times, the Washington Post, and Bloomberg, the special session is assumed to be a natural opportunity for the Court to announce its decision in Citizens United.  Why not wait until Monday, the next regularly scheduled public sitting?  It could be that “one of the Justices who will be discussing an opinion from the bench plans to be absent on Monday,” explained Lyle at SCOTUSblog.  Tony Mauro speculated further at the BLT that the “rare if not unprecedented Thursday session” could be accommodating Justice Stevens, who often travels to Florida after argument sessions conclude.

The Court decided three cases yesterday, two of which were noted for their “fun” alignments of Justices.  In Wood v. Allen, the Court upheld an Alabama death sentence against an ineffective-assistance-of-counsel challenge.  Justice Sotomayor wrote her first Supreme Court opinion on capital punishment for a seven-member majority, with Justices Stevens and Kennedy in dissent.  Doug Berman makes two observations about the decision at Sentencing Law and Policy: “This ruling suggests that [Justice Sotomayor] can find some death sentences she likes.  It also seems to confirm the reality that, next to Justice Stevens, Justice Kennedy may be developing into the most [consistent] anti-death vote on the current Court.”  At Election Law Blog, Rick Hasen highlights a passage of the opinion that could be used to support a decision not to reach the question of overruling Austin v. Michigan in the Citizens United case.  The Washington Post, ACSblog, JURIST, and Courthouse News Service have more details on the decision in Wood.

At SCOTUSblog, Amy analyzed the Court’s decision in Kucana v. Holder, a unanimous judgment that reinforced the role of federal courts in reviewing orders for removal and deportation in immigration cases.  JURIST also takes a look at the case.

The Court’s third decision came from its original-jurisdiction docket, on a procedural question in a water dispute between South Carolina and North Carolina.  The BLT highlights a passage in Chief Justice Roberts’s dissent where he “gave a shout-out to the special masters who are appointed by the Court to gather the facts and make recommendations in these original cases,” after downplaying their role in October’s argument.  The Charlotte Observer and the Associated Press (via the Wall Street Journal) offer accounts of the nature of the underlying dispute.

In addition to releasing those three decisions, the Court heard oral argument in two cases yesterday, Berghuis v. Smith and Conkright v. Frommert.  James Bickford previewed the Berghuis v. Smith argument for SCOTUSblog yesterday, and the blog also featured podcasts with counsel on each side of the case, a dispute over determining jury representativeness.  Courthouse News Service has a recap of the argument, reporting that the Justices “seemed hesitant to impose measures necessary to increase jury attendance of blacks.”  JURIST briefly covers the argument in Conkright.

In news not from the daily business of the Court, Columbia Law School Magazine features an interview with Justice Ginsburg.  The Justice reveals that one of her favorite lawyers of all time is former Justice Louis D. Brandeis and that she keeps a copy of the Constitution with her at all times.

Josh Gerstein of Politico has an update on a case decided just two days ago, observing that “[t]he Supreme Court gets results.” In the wake of the Court’s per curiam opinion in Presley v. Georgia, a pronouncement on public access to jury selection proceedings, a federal judge in Dallas abruptly declared a mistrial in an extortion trial “because she had allowed the jury to be selected behind closed doors just as the Supreme Court ruling was being released yesterday.”

The Asian carp controversy continues to brew after the Court declined on Tuesday to issue a preliminary injunction that would have shut the shipping locks near Chicago.  The Associated Press (via the Chicago Tribune) reports that the White House wants to hold an early-February summit of the Great Lakes governors to discuss the issue.  The Detroit News also reports on the Solicitor General’s Office’s involvement in the dispute; a Department of Justice spokesperson would not comment on whether the Solicitor General might recommend that the preliminary injunction proceedings be reopened in light of DNA evidence that was released the same day as the Court’s ruling.

Discussing Scott Brown’s victory in the Massachusetts Senate race, Ilya Shapiro of the Cato @ Liberty blog is “not so sure it will affect Obama’s calculus in picking a new Supreme Court justice.”

At the Volokh Conspiracy, Craig Lerner and Nelson Lund propose that “by statute, Justices should no longer be permitted to affix their names to the opinions—majority, concurring or dissenting—that they file.”  Lerner and Lund argue that under such a regime, “the Justices would come to regard their reputations as inextricably linked with the work of the Court, rather than with their own personal stock of precedents.”

Finally, in the New Yorker, Jeffrey Toobin writes that “the most surprising aspect of Obama’s first year has been his failure to take full advantage of one the great opportunities available to any President: the chance to nominate federal judges.”  One explanation Toobin gives is President Obama’s desire for bipartisanship in judicial nominations so that “the judiciary would inch away from the culture wars.”