Tuesday Round-up

By Jay Willis
on Nov 17, 2009 at 9:19 am

The Court’s decision not to review a challenge by a Native American group to the Washington Redskins mascot leads Monday’s coverage. The Wall Street Journal, USA Today, NPR, and the hometown Washington Post all report on the Court’s denial of cert. in Harjo v. Pro-Football Inc.

Although this challenge to the moniker failed, NPR notes that “[n]o court has ever commented on the claim that the Redskins name is racially offensive.”  However, as both Above the Law and the BLT report, Philip Mause – who represents the plaintiffs in Harjo – also represents younger Native Americans in a similar challenge, which is now pending at the Trademark Trial and Appeals Board.  The Am Law Daily discusses Mause’s “Plan B”  and rulings by U.S. District Judge Colleen Kollar-Kotelly, who largely sidestepped the issue of the trademark’s offensiveness and instead dismissed the complaint on the ground that the plaintiffs waited too long to file their challenge.  This “Plan B” could avoid that pitfall and may compel the courts to issue a ruling on the merits of the challenge.

The WSJ Law Blog notes that if the second challenge one day makes its way to the Supreme Court, it will be familiar for at least one justice; the petitioners in Harjo cited a Third Circuit decision – authored by then-circuit judge Samuel Alito – holding that offensive trademarks are exempt from the doctrine of laches and can be challenged at any time.

The BLT notes that Chief Justice Roberts opened the Court’s session on Monday by expressing “profound sympathy” to retired Justice O’Connor after the recent death of her husband, John O’Connor.  The Court’s current recess, which begins today and lasts through the end of the month, will be officially recorded as honoring the late Mr. O’Connor.

Tony Mauro at the National Law Journal (subscription required) writes that thus far, Justice Sotomayor has proven herself to be a vocal presence on the Supreme Court bench.  Mauro describes her questioning style as “tenacious and direct,” and the BLT notes in its post on the article that the Court’s newest justice outpaces both of her fellow recent nominees, Chief Justice Roberts and Justice Alito.

Adam Liptak at the NYT covers the Court’s decision to grant cert. in the Magwood v. Culliver habeas case.  The Sentencing Law Blog notes that the Court’s ruling could have broad implications for sentencing guidelines and posits that granting cert. is indicative that Justice Sotomayor’s presence on the Court continues the Roberts Court’s trend of taking up “many criminal justice cases…with important implications for many criminal practitioners.”

The LA Times and the San Francisco Chronicle cover the Court’s decision to summarily reinstate the death penalty in Wong v. Belmontes.  The Sentencing Law Blog states that that the ruling’s narrow, fact-specific nature limits the principles that might be applied to future cases, though it does highlight the Court’s clarification that the standard of ineffective prejudice places the burden on the defendant to show that the result might have been different with competent counsel.  The Volokh Conspiracy notes that this decision marks the third time the Supreme Court has overruled Ninth Circuit Judge Stephen Reinhardt’s decision to vacate Belmontes’ death sentence.

Jesse Holland at the AP covers the “celebrity status” of Justice Sotomayor, noting that “the historic nature of her appointment” as the Court’s first Hispanic justice and the emergence of the 24-hour Internet news cycle make it difficult for the justice to “fade into the background.”  Latina magazine features an in-depth profile of Justice Sotomayor featuring commentary and anecdotes from longtime personal friends.

Briefly, Fredreka Schouten at USA Today writes that a Court ruling in favor of the petitioners in Citizens United may drastically alter 2010 state gubernatorial elections by loosening restrictions on previously prohibited corporate and union donations, while the Boston Globe reports that the firefighters in Ricci v. DeStefano have initiated proceedings in federal district court to be promoted after winning their Supreme Court appeal in June.