Friday round-up

Media attention has focused on Citizens United v. FEC, which Robert Barnes of the Washington Post suggests may be a demonstration of the Court’s “new willingness to act boldly.”  For further coverage, see Lyle’s post on the personhood of corporations or yesterday’s Citizens United round-up.

Some commentators asserted that yesterday’s decision will negatively affect elections and the national political climate.  Zephyr Teachout at Big Money cites a recent report which found that “the financial industry spent $336 million on lobbying in the first three quarters of 2006.”   Teachout suggests that Justice Kennedy, in an effort to form a technical, logical argument, missed the reality of how politics work.  The Christian Science Monitor’s editorial board opines that the Court’s decision could cloud out individual donors.  The authors encourage watch dog groups, including the FEC, to be vigilant this election term, a cycle which they view as a test of the new rules’ feasibility.  Writing for ACSblog, Brenda Wright posits that “casting off all restrictions on corporate political spending” after corporate leadership “helped spark a financial meltdown” shows a disconnect in the Court’s thinking.  The NYT editorial page also comments.

Other commentators regard yesterday’s decision as in line with the intent of the First Amendment.  Ilya Somin, writing for the Volokh Conspiracy, compares corporations to media organizations, concluding that media corporations and other corporations should enjoy the same constitutional rights.   Writing for the New York Post, Alison Hayward recalls the history of campaign finance laws and concludes that although yesterday’s decision may have overturned previous Supreme Court precedents, it was justified: “if a precedent conflicts with the Constitution, it is the court’s precedent, not the Constitution, that must yield.”  Hans Von Spakovsky, writing for The Foundry, sees the decision as a return to “first principles,” and a First Amendment victory.  The WSJ editorial page also comments.

Two posts from the blogosphere about yesterday’s opinion highlight unique occurrences: Chris Geidner at Law Dork covers Justice Clarence Thomas’s dissent, filed in opposition to the majority’s decision to uphold the “disclosure, disclaimer, and reporting” requirement in the BCRA.  And Eugene Volokh notes that yesterday was the first time the word “blog” appeared in a Supreme Court decision.

Other cases argued and decided this week also received attention yesterday.  Robert Barnes weighs in at the Washington Post on Justice Sotomayor’s opinion in Wood v. Allen, a recent death penalty case.  Observing that Sotomayor has a “scant” record on the death penalty, Barnes examines the Wood opinion, “her first full opinion on capital punishment since she joined the court.”  The Washington Post reports on American Needle v. NFL and notes that the NFL players’ association is preparing for a potential lockout in 2011.  Kevin Mawae, the NFL players’ association president, recently testified that a decision favoring the NFL could “do great harm” to the relationship between the players’ association and the league.  Countering this claim, Gary Gertzog, a senior vice president for the NFL, said that the “case is not about any other aspect of our business” than licensing, and that the case would not affect labor relations.

At Concurring Opinions, Adam Steinman discusses Ashcroft v. Iqbal, noting that he agrees with some criticisms of Iqbal and Bell Atlantic Corp. v. Twombly, but that the majorities in both cases “left the core principles of the notice-pleading era in place.”  Steinman analyzes the “plausibility” inquiry, concluding that both decisions allow lower courts to reconcile Twombly and  Iqbal with the pre-Twombly approach; whether they do so will depend on how they define conclusory.  Howard Wasserman at PrawfsBlawg analyzes the diverse legislative proposals made to rectify the complications arising from the Iqbal decision.

And finally, at the Volokh Conspiracy, Craig Lerner and Nelson Lund discuss their draft article suggesting that the Court should move to anonymous opinions to discourage individual justices from writing conflicting opinions.  They further advocate an amendment to 28 U.S.C. 1254 which would mandate that the Court not hear more cases arising from discretionary certiorari petitions than it hears from court of appeals certifications.  This, the authors argue, would fulfill the needs of the judiciary, because courts of appeals could petition the Court to resolve circuit disagreements.