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Tuesday round-up

Coverage of the Supreme Court focused heavily on Monday’s cert. grant in Schwarzenegger v. Entertainment Merchants Association, in which the Court will consider whether California may prohibit the sale of violent video games to children.  At The New York Times, Adam Liptak reports that the grant – which came less than a week after the Court’s decision in another free-speech case, United States v. Stevens – suggests that “at least some justices might be prepared to rethink how the First Amendment applies to depictions of violence.  Robert Barnes at the Washington Post, David Savage and Ben Fritz at the L.A. Times, Henry K. Lee at the San Francisco Chronicle, Bill Mears at CNN, Joan Biskupic at USA Today, Warren Richey at the Christian Science Monitor, and James Vicini of Reuters also have reports on the story.

In the blogosphere, Tony Mauro of the BLT notes that the cert. grant “adds a second case to the fall docket on unpopular forms of speech” (with the first being Snyder v. Phelps, the funeral protest case), while Ashby Jones of the WSJ Law Blog reports that courts have struck down eight similar laws in other jurisdictions, including six states, which have attempted to restrict the sales of violent video games.  Eugene Volokh at the Volokh Conspiracy also briefly discusses the significance of the grant, describing speech to minors is a subject that the Court has discussed only “relatively rarely.”  Doug Berman of the Sentencing Law Blog notes that “an array of potential criminal justice implications . . . could result” from the case’s resolution.

Other commentators reported on Monday’s oral argument in Rent-a-Center v. Jackson.  Dahlia Lithwick of Slate provides a recap of the argument and concludes that the Court is likely to rule in favor of the petitioners.  At the Constitutional Accountability Center, Elizabeth Wydra expresses dismay at the skepticism displayed by some justices to the Jackson’s contentions, concluding that “[i]f there were ever an oral argument that drove home the need to have a Supreme Court that understands . . . how the law affects ‘ordinary Americans’ – this was it.”

In the wake of last week’s decision in Stevens, the editorial board at the New Jersey Star-Ledger characterizes the opinion as “deeply disturbing” and calls for more narrowly tailored legislation to ban the videos in question.  In an opinion piece at The New York Times, Stanley Fish provides a brief history of the First Amendment in Supreme Court jurisprudence and concludes that the Court’s ruling is “no surprise.”

The AP reports that the White House will not announce a Supreme Court nominee this week. At Conglomerate, Christine Hurt counters arguments that President Obama should not nominate a sitting judge to the Supreme Court.  She contends that the idea that a history of “successful judging…would predict Supreme Court success seems to rest on logic,” and she asserts that some of the “out-of-the-box” candidates discussed in the media are actually not as unorthodox as one might think.  Ashby Jones at the WSJ Law Blog looks at President Obama’s consideration of empathy in vetting Supreme Court candidates after he faced criticism from the right for emphasizing its importance during last summer’s nomination process.  Steven Gray at TIME profiles possible nominee Governor Jennifer Granholm of Michigan, suggesting that her “lack of judicial experience might actually be an attribute.”  And though Douglas Berman of the Sentencing Law Blog supports the idea of a nominee who is not a sitting judge, he worries that such a selection “might not be able to effectively engage with other justices on important sentencing issues.”

At the Wall Street Journal, Laura Meckler posits that Elena Kagan’s “track record as a conciliator and leader” in uniting an ideologically divided faculty at Harvard Law School may help win her Republican support during a possible confirmation process. Matt Kelley of the USA Today reports that Elena Kagan served on an advisory panel to Goldman Sachs while acting as dean of Harvard Law School, though he notes that the panel in question met once a year to discuss public policy issues” and “was not involved in the conduct being challenged by the SEC.”

At the Daily Beast, Peter Beinart argues that the President should nominate a mother, such as Judge Diane Wood, to the Supreme Court; because few female Cabinet members and other high-level government officials have children, he contends that such a nomination “would send the message that women can have kids and still reach the apex of their profession.”  At Forbes, Meghan Casserly echoes this sentiment and writes that the perspective that a mother would bring to the Court “should be a valued one.”  Bonnie Erbe at the U.S. News & World Report disagrees:  she notes that Justices Ginsburg and O’Connor are both mothers and characterizes Beinart’s observation as an issue of shared parental responsibilities, rather than discrimination against mothers.

At Above the Law, David Lat discusses the benefits and drawbacks of issuing anonymous Supreme Court opinions, writing that the move would make the confirmation process “less politically charged and combative.”  Lat also notes that increased privacy could expand the pool of candidates to include “publicity-shy people” who would otherwise be “uninterested in serving as federal judges due to the extra scrutiny,” though he also asserts that the accompanying decrease in prestige could “lower the caliber of people interested in judicial service.”

At Jost on Justice, Kenneth Jost expresses disappointment at the Court’s recent decision in Perdue v. Kenny A., which he characterizes as “a setback for lawyers who take on difficult institutional reform litigation with no assurance of eventual reimbursement.”  He concludes that the Court’s opinion “makes any bonuses in civil rights cases far less likely in the future.”

Looking ahead, Marcia Coyle of the National Law Journal previews the Term’s remaining cases on the docket for this week, noting that Wednesday’s oral argument in Doe v. Reed will be the last oral argument for Justice Stevens.  In a guest opinion column for the Seattle Times, James Bopp, Jr. and Scott F. Bienek (who represent petitioner Protect Marriage Washington in the case) argue that petition signers are “no more legislators than the 1.8 million voters who cast ballots at the ensuing election.”  At the Huffington Post, Joe Mirabella argues in favor of political transparency, asserting that “[w]e do not need to destroy our open government to protect petitioners.”


  • Bill Mears of CNN reports on yesterday’s denial of cert. in the trio of Asian Carp cases.  Nathaniel Hurst of the Detroit News reports on possible responses to the decision in the Michigan legislature.
  • The Associated Press previews Ortiz v. Jordan, in which the Court granted cert. Monday.  Stephen Koff of the Cleveland Plain Dealer provides local context on the case.