Thursday round-up

By Conor McEvily
on Jun 30, 2011 at 9:53 am

Monday’s decisions in Brown v. Entertainment Merchants Association and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett continue to draw coverage and criticism.  Discussing EMA, Seth Schiesel of the New York Times argues that, “[n]ow that the industry has finally gotten what it’s asked for,” it should show the world what it can do with its “newfound respectability,” while the opinion staff of the Los Angeles Times surveys reactions to the decision.  And discussing the decision in Arizona Free Enterprise Club, Steven D. Schwinn of Constitutional Law Prof Blog posits that “the only way to make sense of the 5-4 opinion” is that the majority “has found a new right in the First Amendment: the right of well endowed political candidates to speak without a response.”  The opinion staff of the Los Angeles Times characterizes the majority’s opinion and Justice Elena Kagan’s dissent as a “primer on two different approaches to the First Amendment”: the libertarian model and the liberal model.

Several of this month’s earlier opinions were also the subjects of yesterday’s commentary.  Writing for the Opinionator blog of the New York Times, Linda Greenhouse notes that the decision and dissent in J.D.B. v. North Carolina, in which the Court held that age is a relevant factor in determining whether someone is “in custody” for purposes of providing a Miranda warning, is not only an indication of “how polarized the Court has become,” but also “raises a question about the future of the Miranda decision.”  ACSblog links to an analysis of the Court’s recent decision in in Janus Capital Group, Inc. v. First Derivative Traders; the author of that article, Howard Fischer, suggests that although the Court may have blocked one route for stockholders to challenge corporate fraud, it may have also “inadvertently left open a far more dangerous path for the plaintiff’s bar: claims under the Racketeer Influenced and Corrupt Organizations Act.”  And the editorial board of the Los Angeles Times criticizes the Court’s recent decision in PLIVA, Inc. v. Mensing, arguing that “[g]enerics should not be known as buy-at-your-own-risk drugs.”

End-of-term reviews continue to pour in as well.  Writing for the Atlantic Andrew Cohen focuses on the nine best dissents that “give us glimpses into what [the Justices] really think about a topic or issue,” while Debra Cassens Weiss of the ABA Journal focuses on Justice Kennedy’s votes in five-four decisions.

Briefly:

• The ACLU has released its annual summary of the Court’s civil liberties decisions, which is now available on its web site.
• Clive Crook of the Atlantic reports on a recent panel at the Aspen Idea Festival panel (video), which included former Justice O’Connor and Justice Breyer; along with Stanford Law School dean Larry Kramer, the panel considered the extent to which the Court has mirrored public opinion over the years.  At the same panel, reports Sarah McBride of Reuters (via the Chicago Tribune), Justice Breyer dismissed questions about the involvement of Virginia Thomas, wife of Justice Clarence Thomas, in the Tea Party as a “false issue.”
• In an article for the ABA Journal, Mark Walsh documents the retirement (or lack thereof) of former Justices Stevens, O’Connor, and Souter.
• In an essay for the New Republic, David Fontana suggests that this Term has proven significant because it marks the Term in which Justice Sonia Sotomayor “became the most well-known and effective member of the Court’s liberal wing.” (Thanks to Howard Bashman of How Appealing for the link.)
• Tom Curry of MSNBC.com discusses the likelihood that challenges to the constitutionality of the federal Defense of Marriage Act will reach the Court during its upcoming Term.
• The Associated Press (via NPR) has a brief report on a “partisan-tinged” Senate Judiciary Committee hearing convened to consider the effect of recent Supreme Court decisions on consumers.  C-SPAN also provides coverage.