on Mar 3, 2011 at 9:54 am
On Wednesday, the Court issued its decisions in Snyder v. Phelps and Pepper v. United States and heard oral argument in Bullcoming v. New Mexico and Ashcroft v. al-Kidd. Â This round-up will begin with coverage of the new opinions, and then address the oral arguments.
Snyder v. Phelps
The Courtâ€™s opinion in Snyder, a case the Washington Postâ€™s Robert Barnes predicts is â€œlikely to define the Term,â€ has produced a deluge of coverage and commentary. By a vote of eight to one, the Court held that the First Amendment shields from tort liability individuals who stage a peaceful protest on a matter of public concern near the funeral of a military service member. Chief Justice Roberts wrote the majority opinion, Justice Breyer filed a concurring opinion, and Justice Alito, the lone dissenter, filed a dissenting opinion. The opinions are available here.
SCOTUSblogâ€™s Tom Goldstein calls the decision â€œa resounding affirmation of the right to engage peacefully in speech, even terribly hurtful speech, on matters of public import,â€ and the editorial boards of many major newspapers and most commentators seem to support the outcome.Â But the sentiment was certainly not shared by all. Mark Sherman of the Associated Press highlights Justice Alitoâ€™s dissent â€” â€œhis second solo dissent in a free-speech case in as many yearsâ€ â€” as elevating â€œprivacy over free speech.â€ Katie Couric of CBS News interviews Albert Snyder, who believes that yesterday was â€œa sad day for our military men and women, and their families,â€ and â€œa sad day for all Americans.â€ Devin Dwyer of ABC News reports that leaders of the Westboro Baptist Church have â€œvowedÂ to â€˜quadrupleâ€™ the number of protests at military funerals around the countryâ€ in light of the Courtâ€™s ruling, but Joan Biskupic and Kevin Johnson of USA Today note that â€œveterans groups and other opponents [are] vowing to step up efforts to block church followers from demonstrating at high-profile funerals and interfering with grieving military families.â€ The New York Times, the Los Angeles Times, the Washington Post, the Christian Science Monitor, the Baltimore Sun, the Boston Herald, the San Francisco Chronicle, the Kansas City Star, Fox News, the WSJ Law Blog, NPR, Reuters, The BLT, CNN, the Associated Press, Bloomberg, Reuters, TIME, The Atlantic, JURIST, ACSBlog, Concurring Opinions, Cato @ Liberty, ,Constitutional Law Prof Blog, Courthouse News Service, and FIRE, are just some of the media outlets and blogs that have additional coverage of, and commentary on, the decision.
Pepper v. United States
In Pepper, the Court held that at re-sentencing a district court may consider evidence of the defendantâ€™s rehabilitation that occurred after the initial sentencing, and that that evidence may support a downward variance from the sentencing guidelines. Justice Sotomayor wrote for a six-Justice majority, Justice Breyer filed a partial concurrence, Justice Alito filed a partial concurrence and a partial dissent, and Justice Thomas filed a dissent. (Justice Kagan was recused.) The opinions are available here.Â Doug Berman of Sentencing Law and Policy blog describes the case as the â€œbiggest federal sentencing case of the term to date,â€ and in a second post he praises â€œJustice Sotomayorâ€™s opinion [for] weaving its way through a range of post-Booker issues and various other aspects of modern federal sentencing law and practice. And in a third post, he asks whether Pepper might â€œprompt many more federal sentencing judges to focus on post-offense rehabilitationâ€ â€” the Courtâ€™s arguments for the consideration of post-sentencing rehabilitation â€œapply with equal force â€” and maybe with even greater force â€” to post-offense rehabilitation.â€ The Associated Press, Courthouse News Service, JURIST, the ABA Journal, and the Des Moines Register (thanks to How Appealing for the link) have additional coverage of the decision.
Bullcoming v. New Mexico
The question presented by Bullcoming is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a forensic analyst when only the analystâ€™s supervisor â€” and not the analyst herself â€” appears to testify. A transcript of the oral argument is available here. SCOTUSblogâ€™s Lyle Denniston suggests that Justice Scalia, â€œ[t]he Courtâ€™s most determined protector of criminal suspectsâ€™ rights to confront their accusers,â€ hopes to encourage the Court to â€œshore upâ€ the Confrontation Clause after Mondayâ€™s decision in Michigan v. Bryant, which, â€œover Scaliaâ€™s strenuous dissent,â€ bore â€œa sizable loophole in the right of confrontation.â€ Christine Dowling of Crime & Consequences also has coverage of the argument.
Ashcroft v. al-Kidd
The question before the Court in al-Kidd is whether former Attorney General John Ashcroft is immune from a suit alleging that he used the material witness statutes as a pretext to investigate and detain terrorism suspects after September 11th. A transcript of the oral argument is available here. Many commentators note the Justicesâ€™ seeming lack of interest at oral argument, and most seem to predict that the Court will rule in favor of the government. At the Volokh Conspiracy, Orin Kerr is â€œpretty certainâ€ that the Court will â€œreverse on immunity grounds,â€ while Adam Liptak of the New York Times agrees that the â€œJusticesâ€™ lack of engagement at the argument probably signaled a victory for the government.â€ At The Atlantic, Mary Fischer has an interview with al-Kidd, who states that his â€œmain goalâ€ in pursuing the case â€œis vindication.â€ â€œ[He] want[s] the government to apologize and acknowledge their mistakes and right the wrongs so [what happened to him] wonâ€™t happen to other people.â€ The Wall Street Journal, the Washington Post, Slate, CNN, SCOTUSblog, the Associated Press, ABC News all have further coverage, as does Dahlia Lithwick of Slate.
JURIST has coverage of both arguments.
- SCOTUSblogâ€™s Lyle Denniston explores the relationship between the AT&T decision and the Snyder decision, concluding that with these â€œback-to-back decisions . . . the Supreme Court has now told the nation that some claims to privacy â€” to avoid hurt or embarrassment â€” would not be allowed.â€
- The Constitutional Accountability Centerâ€™s Neil Weare cautions against reading too much into â€œthe fact that the U.S. Chamber of Commerce has started out its October 2010 Term . . . by going one-for-five. . . . [W]ith at least fifteen cases in which the Chamber has participated still left to be decided,â€ he argues that â€œit is way too early to be making pronouncements about what this Termâ€™s early decisions mean for the Chamberâ€™s overall batting average before the Roberts Court.â€
- At Concurring Opinions, Jonathan Hafez argues that the D.C. Circuit has â€œturned [Boumediene] on its head by restoring executive control over who leaves Guantanamo, and when. Sooner or later,â€ he predicts, â€œthe Court is bound to take notice.â€
- JURISTâ€™s Aman Kaker discusses an amicus brief filed by the ACLU, the National Womenâ€™s Law Center, and thirty-two other organizations in Wal-Mart v. Dukes, the class action alleging that Wal-Mart discriminated against its female employees in violation of Title VII.
- Richard Friedman of the Confrontation Blog provides some â€œpreliminary observationsâ€ about the opinions issued on Monday in Michigan v. Bryant. He considers the decision to be â€œa very unfortunate development for the Confrontation Clause.â€ (Thanks toÂ How Appealing for the link.)