Thursday round-up

By Kiran Bhat
on Aug 25, 2011 at 8:29 am

Yesterday the American Bar Association filed an amicus brief in Smith v. Cain, a case scheduled for oral argument on November 8, in which it asks the Court to broaden the rule requiring prosecutors to disclose all mitigating evidence that has a material bearing on the defendant’s guilt or the level of punishment the defendant should receive. The WSJ Law Blog and the ABA Journal have coverage of the case and the filing.

Writing for the Opinionator blog of the New York Times, Linda Greenhouse contrasts the Court’s historical reluctance to deregulate corporate speech with the current Court’s willingness to do so in Citizens United and Sorrell v. IMS Health Inc. [Disclosure:  Goldstein & Russell, P.C., which sponsors this blog, represented a group of respondents in Sorrell, but the author of this post was not involved in the case.] She warns that “[n]ot only in commercial speech, but in the area of pure political speech as well, the current majority threatens to drive the First Amendment off a cliff.” And James Vicini of Reuters reports on another corporate speech case that could eventually end up at the Court:  a lawsuit filed last week by several tobacco companies to enjoin government-mandated graphic health warnings on cigarette packages.

Finally, this blog’s symposium on same-sex marriage continued yesterday with a post by Professor John Eastman of the Chapman University School of Law. Eastman argues that the “institution of marriage is certainly deeply rooted in our nation’s history and traditions, but it is equally clear that the same history and traditions does not lend support for a definition so malleable as to include that which it was not.”

Briefly:

• At the Public News Service, Mary Kuhlman briefly summarizes the current state of play in challenges to the constitutionality of the Affordable Care Act.
• In his column for the Worcester Telegram & Gazette, Alfred Southwick predicts that if the Court does indeed review the constitutionality of the Affordable Care Act, there “will be a showdown between so-called ‘strict constructionists’ and those with more flexible, liberal opinions” – a debate, he explains, that “has been going on since George Washington’s first administration, when Secretary of State Thomas Jefferson complained that Alexander Hamilton’s National Bank was not authorized by the Constitution.”