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Wednesday round-up

As the chatter over Jeffrey Toobin’s profile of Justice Stevens quiets down, the debate over Virginia Thomas’s new role at the helm of a Tea Party advocacy group continues unabated. Emily Bazelon of Slate writes that “this has turned into the kind of roll-out Thomas couldn’t have planned better…[A]ll the dragon-breathing makes for a great show.” In a post at the BLT, Tony Mauro investigates Thomas’s statement that she was “vetted by the Supreme Court ethics office.”  According to Court spokeswoman Kathy Arberg, it was a reference to the Court’s legal office, which Mauro describes in his post. The Atlantic’s Andrew Cohen, Newsweek’s The Gaggle blog, the New York Times’s The Caucus blog, and the Chicago Tribune’s The Swamp blog all have posts on the story.

Dahlia Lithwick, also of Slate, discusses the Court’s intersection with political life more generally.  Lithwick describes a Justice’s “impossible double-life, with one foot in the world of neutral, pristine-seeming legal rules and the other in the rough-and-tumble of politics…[E]very once in a while the justices explode into the brutish, AM-radio world of Democrats vs. Republicans—whether it’s Bush v. Gore, Citizens United, the State of the Union address, or a confirmation hearing.”  She concludes that “the real lesson for the justices here is that no random act of partisan politics by any member of the court will ever go undetected again…[T]heir political action is always big news.”

At the BLT, David Ingram reports that the Alliance Defense Fund (ADF), a conservative Christian litigation group, has aligned itself with some “unlikely allies” in opposition to the Court’s ruling last Term in Ashcroft v. Iqbal, a decision that raised the pleading standards for civil lawsuits.  Gary McCaleb of the ADF sent a letter to senators in January to register ADF’s views as the House and Senate held hearings on whether to restore the pre-Iqbal pleading standard through legislation. Ashby Jones picks up on the BLT story at the WSJ Law Blog and asks, “[I]s [Iqbal] in some ways making life harder for defense lawyers?”

Lawrence Lessig has an essay in the New Republic advocating for a constitutional amendment in response to Citizens United that “restrict[s] freedom as little as possible.” Lessig’s proposed language? “Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”  In other Citizens United news, NPR’s All Things Considered features an interview with Eric Hensal, the man behind a Maryland PR firm’s attempt to run for Congress.  Hensal says that “the American public should see the logic of this majority decision [Citizens United] played out to its conclusion.” Meanwhile, Citizens United—the winning party in the case—is threatening, on grounds of trademark infringement, a Wisconsin group named “Citizens United against Citizens United” that is protesting the Court’s decision. The Wisconsin State Journal has the report, which David Post discusses at the Volokh Conspiracy.

Daniel Solove has two posts at Concurring Opinions analyzing the tort issues at the heart of Snyder v. Phelps, the recently granted funeral-picketing case.  Solove argues that Snyder’s “intrusion upon seclusion” and “intentional infliction of emotional distress” claims are weak as matters of tort and First Amendment law. Howard Wasserman agrees at Prawfsblawg.


  • At the Volokh Conspiracy, Eugene Volokh notes a pending petition on abortion clinic protests and the First Amendment (McCullen v. Coakley, No. 09-592). The petition is relisted for Friday’s conference and is one of this blog’s Petitions to Watch.
  • Joan Biskupic, on her Court Beat blog, discusses the Justices’ letter-writing habits and quotes notable correspondences by Chief Justice Rehnquist and Justice Scalia.
  • Michigan Attorney General Mike Cox says the Court will reconsider Michigan’s plea to temporarily close Chicago’s shipping locks to prevent an invasion of Asian carp into the Great Lakes. Barrie Barber of the Saginaw News has the story.
  • JURIST reports on the Court’s refusal on Monday to stay the execution of an Ohio inmate challenging the state’s single-drug lethal injection procedure. Lawrence Reynolds’s execution had been delayed after a suicide attempt last week; he was executed yesterday.
  • The Washington Post’s Reliable Source blog reports that both Justice Scalia and Justice Ginsburg, to their mutual surprise, celebrated their March birthdays at the Inn at Little Washington on Saturday.