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Wednesday round-up

Several high-profile developments in the lower courts are raising the question: what, if anything, will the Supreme Court do?

One such development came from the Second Circuit yesterday, in a case that has been before the Justices once already.  In April 2009, the Court issued a five-to-four opinion in FCC v. Fox Television Stations, upholding the Federal Communication Commission’s policymaking process that resulted in a ban on broadcasting “fleeting expletives.”  But the Court remanded the case to the Second Circuit for that circuit to determine whether the policy violated the First Amendment.  Yesterday the Second Circuit answered, finding the policy to be “unconstitutionally vague” and striking down the ban.  As all of the news outlets covering the Second Circuit’s decision – which include SCOTUSblog, NPR, the Wall Street Journal, the New York Times, Constitutional Law Prof Blog, the Volokh Conspiracy, the Washington Post, PrawfsBlawg, First One @ One First, and the L.A. Times – note, the Supreme Court could become involved in the case again if the FCC opts to appeal.  The WSJ Law Blog describes the potential downside of such an appeal for the FCC: several Justices, including Justice Thomas, have previously cast doubt on the constitutionality of the policy, so the FCC “risks that the court overturns much of its First Amendment jurisprudence on the governmental regulation of speech . . . and strips the FCC of further power to regulate speech over the airwaves.”

Another Second Circuit decision also drew significant attention yesterday.  The court held that part of Connecticut’s public campaign financing law is unconstitutional, a  decision which the Hartford Courant predicts “will have immediate implications for one of the most competitive state political campaign cycles in years.” Although the court found that the law does not unconstitutionally discriminate against minor party candidates, it upheld a lower court decision that threw out two of the law’s “trigger provisions” governing excess and independent campaign expenditures.  Rick Hasen of Election Law Blog explains that the ruling on the trigger provisions is “at odds with the Ninth Circuit decision in the McComish v. Bennett case, and the split makes it even more likely that the Supreme Court will agree to hear the McComish case.”  The Associated Press and Constitutional Law Prof Blog also have coverage of the Second Circuit ruling, as well as a related decision from the Second Circuit on Connecticut’s campaign finance law.

Two other lower court developments have Supreme Court implications.  Yesterday an Algerian prisoner at Guantanamo Bay asked the Supreme Court to delay his transfer to Algeria while he appeals a recent D.C. Circuit ruling against him.  Politico and SCOTUSblog have the story, both reporting that Chief Justice Roberts has asked the government to respond to the request by Friday afternoon.  The other development – a recent district court ruling that part of the Defense of Marriage Act is unconstitutional – may not reach the Supreme Court for some time, if at all.  Even so, at Balkinization, Jack Balkin is already considering six scenarios for how the case could play out in the federal courts.  Also analyzing the Supreme Court’s possible reaction to the case, Andrew Koppelman has an opinion piece in the L.A. Times in which he argues that the Tenth Amendment basis for the decision “doesn’t make much sense” but that the Equal Protection argument “is so strong that it has a good chance of being accepted by the U.S. Supreme Court.”  In USA Today, Joan Biskupic provides an overview of the various same-sex marriage lawsuits across the country, observing that “[t]he outcome of any case could depend on Justice Anthony Kennedy, author of the major gay-rights rulings and the pivotal vote on the court.”

On the Kagan nomination, three new headlines emerged yesterday. One is that the Senate Judiciary Committee delayed its vote on the nomination until next Tuesday, as reported by the Boston Globe, the San Francisco Chronicle, the Christian Science Monitor, and SCOTUSblog.  (C-SPAN has video from the Committee meeting.)  Another headline is that Republican senators are pressing Kagan to answer definitively whether she would recuse herself from lawsuits stemming from this year’s health care reform law. Politico and the Wall Street Journal have coverage of that story. The final Kagan-related story comes from David Savage and James Oliphant in the L.A. Times. They report on a new ad from the NRA that shows a clip from Justice Sotomayor’s confirmation hearings in which she voices support for individual gun rights; the ad then urges viewers to call their senators and “tell them not to fall for the same trick twice.”


  • Tony Mauro has a trio of posts at the Blog of LegalTimes on Justice Potter Stewart’s papers, which are being released to the public now that Justice Stevens has retired.  (Stevens’s retirement leaves the Court with no Justices who overlapped with Stewart’s tenure, which was Stewart’s condition for releasing his papers.)  Mauro concludes that “it does not appear . . . that scholars will learn much about how his brethren won over his vote. The case files generally contain just successive drafts of opinions, with little else.”  (At First One @ One First, Mike Sacks recalls a personal conversation with a Stewart clerk who “told [him] that Stewart burned much of his more sensitive papers.”)
  • In an opinion piece in the Washington Post, Stuart Taylor Jr. offers four reasons why “originalists cannot avoid subjective judicial policymaking.”
  • Politico and MinnLawyer Blog report that Justice Thomas swore in his former clerk—and former SCOTUSblogger—David Stras to serve as a justice of the Minnesota Supreme Court.
  • Abram Shulsky and John Burleigh have an opinion piece in the Weekly Standard asserting that Justice Souter’s much-discussed commencement speech at Harvard amounts to a defense of Plessy v. Ferguson.
  • And finally, Becky Krystal has a stinging review of the Supreme Court cafeteria in the Washington Post.  Her verdict? “This food should be unconstitutional.”