Tuesday round-up

By Jay Willis
on Jan 26, 2010 at 10:19 am

Commentators continue to weigh in on last Thursday’s decision in Citizens United v. FEC.  In Slate, Barry Friedman and Dahlia Lithwick characterize the timing of the decision as “terrible” in light of the nation’s economic woes, and they describe the outcome as somewhat unexpected given the conservative-leaning Court’s recent decisions to uphold the Voting Rights Act (in NAMUDNO) and disparate-impact tests (in Ricci).  Kenneth Jost also criticizes the Court’s decision as overly broad, opining that such expansive decisions should be reserved for instances in which the Court needs to protected endangered constitutional rights.  And at The New York Times, Adam Liptak describes Justice Stevens’s “full-throated” and disappointed dissent, noting that his recent opinions have been united by the theme that the Court has “lost touch with fundamental notions of fair play.”

Other court-watchers continue to discuss the decision’s ramifications.  The WSJ Law Blog speculates on the legislative steps that Congress might take in response and explores the larger political ramifications of the decision, asserting that it “could hand congressional Democrats a populist issue” to counter recent Republican election victories.  At PrawfsBlog, Howard Wasserman also explores possible congressional or state actions that could simultaneously allow willing shareholders to opt in to election-related activities while limiting the broader role of corporate expenditures.  At Slate, Nathaniel Persily writes that the decision may put longstanding campaign contribution limits and bans on “soft” money contributions in jeopardy.  Finally, NPR’s Peter Overby profiles the disclosure laws that the Court’s opinion left untouched.

In the wake of the January 13 oral argument in American Needle, Inc. v. NFL, an L.A. Times editorial disputes American Needle’s position that the NFL is composed of separate entities that cannot collectively contract under federal antitrust law.  The editorial concedes that although teams compete against one another for fans and wins, the league “functions as one business” in many other significant ways, such as marketing and (as Justice Alito pointed out at argument) scheduling.

At the Sentencing Law Blog, Doug Berman comments on Monday’s per curiam opinion in Briscoe v. Virginia, noting that the interim addition of Justice Sotomayor to the Court evidently did not cause the Court to reconsider its decision last Term in Melendez-Diaz v. Massachusetts; Berman concludes that “the Court decided a dodge rather than a reconsideration is more appropriate right now.”  Orin Kerr at the Volokh Conspiracy and Tony Mauro at the BLT also discuss the decision.

The Jurist reports on the Court’s decision to deny cert. in Noriega v. Pastrana, including the dissent filed by Justices Thomas and Scalia, who argued that the Court should grant review to resolve outstanding ambiguities in recent “enemy combatant” habeas corpus cases.  At the Volokh Conspiracy, John Elwood expresses surprise that none of the Court’s liberal wing shared these sentiments and speculates on possible explanations for the denial of cert.  The Christian Science Monitor also has coverage.

Finally, Tony Mauro at the BLT covers the Court’s decision to allow the NRA to take part in the upcoming oral argument in McDonald v. City of Chicago.  The NRA has announced that it will use a different legal strategy than the attorneys for the petitioners, and Mauro speculates that the Court granted the NRA time to ensure that “all avenues to incorporation…are fully explored at the argument.”  At the Volokh Conspiracy, Orin Kerr suggests that the NRA’s participation may ensure that the Court hears arguments focused more narrowly on the merits of the case, in contrast with the more ambitious brief filed by petitioner McDonald.