Tuesday Round-up
on Sep 15, 2009 at 9:00 am
Richard Hasen keeps the Citizens United conversation going at Slate, commenting on the impact of the Court’s growing trend towards “broad, constitutional holdings†in “How Liberals Can Win By Losing at the Roberts Court.â€Â Citing a recent Seventh Circuit opinion – and the Court’s affirmation of it – in the voter identification case Crawford v. Marion County, Hasen argues that bad losses in election law cases are sometimes best avoided by staying out of the Supreme Court. Likewise, he points out, the impact of losses at the Supreme Court can be mitigated by narrower opinions, rather than sweeping ones. If the Court decides in Citizens United’s favor but on narrow statutory grounds, Hasen anticipates, “there will be a lot of high-fives among supporters of campaign finance reform, from Elena Kagan on down.â€
In the same vein, Carl Pope comments on Citizens for Huffington Post, pointing out that Chief Justice Roberts’ efforts to shape himself as an incrementalist have led to expectations that he will encourage a narrow ruling in the case. Pope also offers a unique view of the significance of Alito, Scalia, and Thomas’s views on Citizens United, arguing that if the three justices choose to rule in the organization’s favor, their decisions will represent an “enormous incompatibility†with their purported judicial doctrine of “originalismâ€; that is, the claim that “that it is not previous Supreme Court precedent that should govern, but instead the intentions and understanding of those who drafted the Constitution (and its amendments).â€
Balkinization recaps Jeff Toobin’s recent New Yorker article on Obama’s “post-partisan†approach to judicial nominations (Supreme Court and otherwise), emphasizing Toobin’s treatment of the idea that the Obama administration will shift its focus away from court fights and toward legislative efforts. (In related news, Legal Beat reports that Obama has just nominated Virginia Supreme Court Justice Barbara Milano Keenan for a seat on the 4th Circuit). Balkanization also covers this past Saturday’s Washington Independent article on Senator Jim DeMint’s opinion on the constitutionality of social security and health care reform; Balkin points to the Court’s 1937 decision in Steward Machine Company v. Davis, arguing that DeMint’s stance might be based on the binding precedent of cases like this one.
The AP is reporting that Sandra Day O’Connor criticized the tradition, maintained in about two dozen states, of judicial elections. Arguing that this practice leads to judges hesitant to make unpopular decisions, the former justice advocated for a universally merit-based system of judicial appointments, pointing out that landmark decisions like Brown v. Board of Education might not have been possible had the justices been concerned with the public opinion of their constituents. O’Connor’s comments came during a Seattle conference on the Supreme Court’s recent decision in Caperton v. Massey Coal, in which the Court held that elected judges must step aside in cases in which they had received large campaign contributions from the parties.
In the NYT column “The Local”, Tina Kelley discusses today’s oral arguments in an ongoing Third Circuit case brought in response to a school district policy barring Christmas Carols. According to attorneys for the parent who brought the suit, if the Court of Appeals does not find that a constitutional violation took place, they will petition for cert.
Finally, the BLT covers the ongoing legal battle over the appropriateness of the name “Redskins†as the moniker for Washington’s NFL football franchise, reporting that lawyers for a group of Native Americans filed a cert petition today in Susan Harjo v. Pro-Football, Inc. While the group has petitioned for a name change under the Lanham Act, which bars disparaging trademarks, BLT reports that the case will turn on an interpretation of the doctrine of laches, which “acts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.â€
