Tuesday round-up

By Jay Willis
on Feb 23, 2010 at 9:30 am

Robert Barnes at the Washington Post looks ahead at the Court’s docket for the second half of its Term.  He notes that the Court may release several more controversial opinions in cases such as United States v. Stevens, Free Enterprise Fund v. PCAOB, and Skilling v. United States.

In two posts at the Sentencing Law Blog, Douglas Berman previews upcoming oral arguments in sentencing law cases before the Court and recaps Monday’s sentencing-related rulings and grants of cert. In a third post, he predicts that the Court will rule for the respondents in United States v. O’Brien and Burgess – a resolution that would allow the Court “to dodge all the tough constitutional questions that a ruling for the government could present.”

Elsewhere, David Savage at the Chicago Tribune and Jesse Holland of the AP recap Monday’s oral argument in Lewis v. City of Chicago.  Both articles suggest that the Court, led by Justices Ginsburg, Scalia, and Sotomayor, seemed likely to rule in favor of the petitioners.

At USA Today, Joan Biskupic sets the stage for Tuesday’s oral argument in Holder v. Humanitarian Law Project, the first First Amendment challenge to the 2001 Patriot Act. Warren Richey at the Christian Science Monitor also previews the case, as does NPR’s Nina Totenberg (audio).  An editorial at The New York Times distinguishes between free speech on behalf of terrorist groups and the provision of advice or assistance to these groups; it concludes by urging the Court to “affirm that Congress has broad leeway in limiting assistance to terrorist groups” while ensuring that “speech that is truly independent of these groups” remains protected.

The ACS Blog notes that a bill has been introduced in the Nebraska state legislature to ban abortions after twenty weeks regardless of viability — a proposal that is “acknowledged by advocates on both sides of the issue to be unconstitutional under the Court’s present jurisprudence.”  Robin Marty at the Reproductive Health Reality Check blog speculates that this bill and similar measures in Florida and Ohio may reflect a strategy by pro-life activists to bring the abortion issue back to the Roberts Court.

At the Constitutional Accountability Center’s Text and History blog, Elizabeth Wydra examines the tension in McDonald v. City of Chicago between the competing arguments for incorporation, based on the Privileges or Immunities and Due Process Clauses.  She concludes that although the “text and history” of the Privileges or Immunities Clause support its use “to protect the individual gun rights in this case,” she expresses doubt that the Court will rely on it and thus overturn its decision in the Slaughter-House Cases .

At Concurring Opinions, Lawrence Cunningham previews Rent-a-Center v. Jackson, in which the Court will review the Ninth Circuit’s holding that unconscionable aspects of the contract rendered the entire contract unenforceable.  Cunningham argues that the Court should adopt a “blue-pencil” approach that allows the courts to identify and strike the offending clauses from a contract, thereby rendering “ the revision enforceable.”  At PrawfsBlog, Aaron Bruhl contends that the arbitrators themselves should be allowed to decide whether certain provisions in an arbitration agreement are unconscionable.  This, he writes, allows the Court to easily monitor for compliance and sidesteps the issue whether “some lower courts can be trusted to apply unconscionability correctly.”

Finally, the ACS Blog also covers Jeffrey Toobin’s recent PBS appearance in which he asserted that the most significant impact of the Citizens decision will come not in high-profile, national elections but instead in the newfound influence that corporations can exert in states which elect their state supreme court and lower court judges.