Thursday Round-up

In the Wall Street Journal, Jess Bravin scrutinizes a comment made by Justice Sotomayor during the Citizens United oral argument – her first session on the Court: “[judges] created corporations as persons, gave birth to corporations as persons…There could be an argument made that that was the court’s error to start with.” Bravin reads in these words hesitation to grant expansive corporate rights and a hint of her vote in Citizens United. By contrast, questions asked by members of the Court’s conservative majority during the Citizens United argument suggest they believe corporations have broad First Amendment rights.  Bravin observes that this position is consistent with the Court’s steady expansion of corporate rights into the 1970s, though the Court’s more recent precedents are less decisive.

At Election Law Blog, Richard Hasen has a post on new insider information about the drafting of Austin v. Michigan, which the Court may overturn in Citizens United.  In a 2009 Howard Law Journal article, a former clerk of Justice Thurgood Marshall claims that Marshall used the moderate argument that corporate contributions “distort” political speech only to secure a majority vote for the opinion.  Marshall would have embraced a stronger argument for the equal opportunity of all citizens to participate in the political process.

In the continuing debate over whether the Supreme Court should hear the Obama Administration’s appeal to block the release of photos of prisoner abuse by the U.S. military, the Los Angeles Times opinion page takes a firm stance against granting the appeal.  The Times argues that the Freedom of Information Act only allows the government to suppress information in order to protect individuals, not American troops generally.  The Times is anyway unconvinced by the government’s argument that these images pose a grave danger to Americans abroad.

On Huffington Post, Jay Wexler discusses the upcoming case Salazar v. Buono, which will decide whether a cross erected as a war memorial on public land is constitutional.  The city technically sold the land below the cross to a private group, but Wexler argues that the appearance of public ownership makes the cross display unconstitutional.

Andrew Cohen at CBS’s Court Watch recounts the botched execution of Romell Broom in Ohio on Tuesday, suggesting that the incident casts doubt on the constitutionality of the state’s lethal injection protocols.  Cohen acknowledges that the Court’s 2008 decision in Base v. Rees raised the bar for a prisoner to challenge his method of execution under the Eighth Amendment.  But he argues that the repeated failures of Ohio make its case the “cruel and unusual” exception.

Continuing the commentary on recently retired Supreme Court justices, the Boston Herald reports that Justice Souter is now promoting civics education through the New Hampshire Supreme Court Society.

For those watching Supreme Court clerkships, the ABA Journal has an overview of this year’s clerks.  More clerks than ever are veterans of “feeder firms” and more graduated from Yale Law School than Harvard Law School.