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Tuesday round-up

NPR’s Nina Totenberg and Jess Bravin and Brent Kendall at The Wall Street Journal recap yesterday’s oral argument in Skilling v. United States.  Bravin and Kendall note that – perhaps because Skilling is the third case this Term in which the Court has considered the “honest services” statute – the justices focused more on the change-of-venue issue yesterday.  Elsewhere, Joan Biskupic at USA Today writes that Justice Breyer, among others, “suggested that [the Court] did not want to second-guess” the trial judge, fearing a ruling in Skilling’s favor on the issue would lead to drawn-out jury selections. Mary Flood of the Houston Chronicle also has coverage of the proceedings.

In the blogosphere, Christine Hunt at The Conglomerate has a “post-game” analysis of the argument; in a separate post at The Conglomerate, she also analyzes the amicus brief filed by news organizations in opposition to Skilling’s change-of-venue argument and concludes that the outrage in Houston regarding the Enron scandal was not sufficiently national in scope to eliminate the potential value of a transfer of venue. The DealBook blog of The New York Times has coverage of the oral argument, while Ashby Jones at the WSJ Law Blog features a report on the argument from the Journal’s Jess Bravin, who predicts a decision that instructs Congress to reshape the “honest services” law; if the Court does reverse on the jury fairness issue, Bravin speculates that it will issue a narrow ruling that does not address “the broader claim that a change of venue is required whenever there is a similarly pervasive publicity about a defendant.”

Joan Biskupic at USA Today covers yesterday’s dismissal of Kiyemba v. Obama, while Adam Liptak at The New York Times notes that “the central issue…is likely to reach the court again” because “other prisoners cleared for release with nowhere to go” remain at Guantanamo.  At the L.A. Times, David Savage observes that the Court’s move temporarily “gives the [Obama] administration more time to resolve how to handle the remaining prisoners at Guantanamo.”  Robert Barnes at the Washington Post, Tony Mauro at the BLT, and Jess Bravin of the WSJ Law Blog also have coverage.  At Balkinization, Deborah Pearlstein applauds the Court’s decision, asserting that a potential decision against the Uighurs “might have cemented a permanently bad outcome for the remaining Guantanamo detainees” that have not yet been released.

In her preview of Tuesday’s scheduled oral argument in McDonald v. City of Chicago, Nina Totenberg at NPR predicts that a decision in favor of the petitioners will lead to a “torrent of other cases…that test a huge array of existing gun regulations.” Warren Richey of the Christian Science Monitor also has coverage, while Bill Mears’s piece at CNN profiles petitioner Otis McDonald and recaps the history of the Chicago gun laws at issue. In Chicago, Fran Spielman of the Chicago Sun-Times (via How Appealing) covers a pre-argument press conference with Chicago Mayor Richard Daley, who describes himself as “very optimistic” that the Court will uphold the handgun ban – a measure that he views as necessary for the “safety of our streets and our families.”  Finally, Lyle Denniston at SCOTUSblog reported Monday evening that the Court refused a last-minute request by broadcast networks to release the audiotape of the oral argument immediately after the argument finishes; consistent with current Court policy, the transcript will be released later on Tuesday.

Numerous editorial pages and opinion pieces weigh in on McDonald.  The editorial board of Christian Science Monitor argues that Second Amendment rights must be viewed differently than free speech because of the serious safety threat that guns pose, and it urges the Court to issue more specific standards of review to help lower courts determine the constitutionality of firearms restrictions.  At the ACS Blog, Mark Tushnet predicts that the Court will rule in the petitioners’ favor – an outcome that, he opines, casts doubt on the consistency of Republican deference to federalism in other policy areas.  The Wall Street Journal’s editorial board encourages the Court to overturn the Chicago law using the “judicially restrained path” of the Due Process Clause; reliance on the Privileges or Immunities Clause, the board cautions, could become a tool used to assert other “rights” not found in the Constitution’s text.  And the Washington Post’s editorial board deems it “incongruous at best” to deny the rights established in Heller to those living outside of the District of Columbia but at the same time supports “reasonable gun-control measures” to protect public safety. And at the National Law Journal, Dennis Henigan of the Brady Center urges the Court, even if it rules in the petitioners’ favor, to re-affirm Heller’s requirement that “courts show great deference” to legislation that reduces gun safety risks.


  • Tony Mauro at the BLT reports on the “Supreme Court of one justice” in which Justice Sotomayor, the only justice not named as a defendant in a suit against the Court itself, acted as a “quorum of one” in dismissing a challenge to the Court’s discretionary jurisdiction.
  • At the Volokh Conspiracy, Orin Kerr covers yesterday’s denial of cert. in McCane v. United States, a Fourth Amendment “good faith exception” case and then follows up with a second post covering his take on the issue, a piece he calls “the merits brief I was itching to write, offered in blog form instead.”
  • Bill Mears at CNN covers the denial of cert. in LFP Publishing Group v. Toffoloni, a case involving a suit against Hustler magazine.
  • Jesse Holland at the Associated Press has a recap of oral argument in Monday’s Miranda-rights case, Berghuis v. Thompkins.
  • Warren Richey at the Christian Science Monitor also covers the denial of cert. in Haskell County Board of Commissioners v. Green, noting that nine states had filed an amicus brief in support of certiorari seeking “clearer guidance for public officials and lower courts” on displays of the Ten Commandments.
  • At Concurring Opinions, Sherrilyn Ifill expresses disappointment at the socioeconomic disparity between former Enron CEO Jeffrey Skilling and other, unsuccessful due process petitioners in recent Supreme Court terms.
  • Brigid Schulte at the Washington Post profiles Mohamed Ali Samantar, the petitioner in Samantar v. Youself.  Oral argument in the case is scheduled for Wednesday.
  • Finally, also at the Volokh Conspiracy, Randy Barnett covers the interaction between Dred Scott, the Fourteenth Amendment, and the Slaughter-House Cases in defining the Privileges or Immunities Clause at issue in McDonald.