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Friday round-up

The Chief Justice’s public criticism of the State of the Union address reached television news yesterday.  In a panel on FOX News, Rick Klein of ABC suggests that the President “knew exactly what he was doing when he decided to take on the” Citizens United decision, while syndicated columnist Charles Krauthammer calls the President’s remarks at the State of the Union “a breach of protocol and decorum” and “an insult.” Taking questions on C-SPAN, David Savage of the Los Angeles Times suggests that Justice Alito was reacting to the president’s assertion that the ruling overturned “a century of law”—contrary to the view Alito took in the Citizens oral argument that the laws to be overturned were more recent.

George Will, in his column in the Washington Post, makes the case that no one should attend the State of the Union, given that the Constitution does not require a public address and that, in Will’s view, the event “gives presidents delusions of omnipotence” that damage the balance of power between the three branches.  On the other side of the debate, Frank James at NPR’s The Two-Way blog argues that the justices – who, in his view, “are generally treated like the immortals on Mt. Olympus” – should attend the State of the Union to “face the music” before the public for the Court’s decisions.

Right after the Chief Justice’s remarks, Nina Totenberg of NPR described the history of Justices attending (or failing to attend) the State of the Union and of past addresses criticizing the Court.

Nathan Koppel at the WSJ Law Blog announces “Citizens United, Round Three” after Democratic Senate Majority Leader Harry Reid pointedly criticized the Chief Justice: “’Do you think John Roberts knows or cares how people get elected?’ Reid said, adding that the justices on the court lack understanding of the practical impact of their decisions.

Commentary on the impact of the Citizens ruling continues.  Doug Kendall of the Constitutional Accountability Center writes at the Huffington Post that the Citizens United decision has “really changed everything, at least in terms of the debate over the future of the courts”; among other things, he notes, President Obama has picked up the pace of judicial nominations.  In light of the Citizens ruling, John C. Bogle at BusinessWeek urges corporations to adopt a formal requirement that seventy-five percent of their shareholders approve their political expenditures.

In her online column for the New York Times, Linda Greenhouse discusses what she characterizes as the “impressive consistency” displayed by Justice Thomas with regard to his view the Eighth Amendment applies to the cruel and unusual nature of sentences alone, and does not extend to conditions within the prison.

Robert Barnes puts Justice Ruth Bader Ginsburg on the record at the Washington Post as one more judge calling for the end of state judicial elections. Ginsburg made those remarks on a panel at the recent meeting of the National Association of Women Judges.  Also on the panel was Justice Sonia Sotomayor, who told audience members that since her arrival on the Court she had been most surprised by the collegiality that she found.

The Massachusetts Supreme Court on Wednesday upheld state gun trigger-lock laws.  The Court’s opinion deemed the 1876 Cruikshank case, in which the U.S. Supreme Court declined to apply the Second Amendment to restrict state gun control laws, “the law of the land until the Supreme Court decides otherwise, and we are therefore bound by them.’’ The Boston Globe reports on the ruling, while the New York Times editorial board endorses it.

ACSblog provides an overview of an issue brief released on Tuesday regarding life without parole for juveniles – an issue before the Court this Term in Graham v. Florida and Sullivan v. Florida.  The brief’s authors conclude that life imprisonment without the possibility of parole “has little support in behavioral scientific research, does not strengthen public safety, and runs counter to international norms.”


  • Gerald Magliocca at Concurring Opinions reflects on what standards should be used to establish whether the judging philosophy of a judicial nominee is “outside the mainstream.”
  • On this blog, Kevin Russell writes about the Court’s call for the views of the Solicitor General in two ERISA petitions arising from the case Amara v. CIGNA Corp.
  • At the Legal Theory Blog, Lawrence Solum flags a recent paper by Professors David Stras and James Spriggs on when the Court issues plurality opinions (the paper is available online here).
  • At the WSJ Law Blog, Jess Bravin has a post on the McDonald’s menu preferences of several current and past Justices, elicited in response to a query by a prankster posing as a ten-year-old child.  Responses ranged from those of Justices Ginsburg and Souter, who described themselves as (at best) infrequent visitors of the fast food chain, to that of retired Justice Blackmun, who responded that “almost anything they put out is acceptable.”