Wednesday Round-up

By Anna Christensen
on Oct 7, 2009 at 9:59 am

Yesterday, the Court heard arguments in United States v. Stevens (08-769), and generated a flurry of press coverage in the process.  At the Washington Post, Robert Barnes reports on the oral argument, as does Adam Liptak at the New York Times, detailing the Justices’ strenuous questioning of both sides; USA Today posits that the Court appeared “poised” to strike down the law, which bans the sale of depictions of animal cruelty.  The L.A. Times, the Wall Street Journal, and NPR also have coverage, and at the National Law Journal, Tony Mauro highlights Justice Kennedy’s point that “the Court has never found a law restricting speech to be constitutionally acceptable just because prosecutors have so far used restraint.”  At Slate, Dahlia Lithwick also offers a detailed play-by-play of the questioning.

Before the argument, NPR’s Nina Totenberg offered an analysis of the various issues at play in the case.  Brian Maloney also previewed the argument at ACSblog, detailing the potential deliberate and unintended effects of an opinion upholding the law.  ACSblog also has an essay by Humane Society president Wayne Pacelle, who argues that a decision in favor of the petitioners will significantly discourage animal cruelty while leaving in place exceptions for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Sentencing Law and Policy offers a recap of another of yesterday’s arguments, Johnson v. United States (08-6925), observing that Justice Scalia’s questioning during the argument suggested a pro-defendant reading of the mandatory-minimum provision of the Armed Career Criminal Act, while Justice Breyer seemed to read the statute more broadly.

Monday’s arguments are still in the news as well.  At ACSblog, Susan A. Bandes analyzes the issues at stake in Maryland v. Shatzer (08-680), arguing that it will require the Court to create a bright-line rule clarifying its decision in Edwards v. Arizona but pointing out that this push for clarity might prevent the Court from weighing other values.  The AP’s Jesse Holland also covers the case, which could overturn a lower court decision to throw out a confession based on the fact that the suspect in question had requested a lawyer years earlier in the same case.  According to Holland, the State of Maryland has argued that “allowing [the lower court’s] decision to stand would cause havoc with police investigations.”  At the National Law Journal, Tony Mauro recaps the oral argument in Mohawk Industries Inc. v. Carpenter (08-678), in which the Court will determine when a party can appeal a finding that it has waived attorney-client privilege in an order releasing material for discovery.  Mauro writes that a number of Justices questioned Mohawk’s lawyer on his contention that attorney-client privilege should receive greater protection than any other privilege, but also challenged Carpenter’s assertion that trials would be disrupted by the potential collateral appeals in question.

Today’s upcoming argument in Salazar v. Buono (08-472) is also sure to generate a healthy dose of media interest.  Ashby Jones at WSJ Law Blog previews the argument, highlighting our own coverage; ABC News also provides details on the case, and at NPR, Nina Totenberg offers a detailed and helpful run-down of the issues at hand.  PrawfsBlawg also offers commentary on the case, arguing that the case “has the potential to remake the Establishment Clause as regards passive displays” and, in a subsequent post, pointing out that a res judicata problem can potentially be identified in the Ninth Circuit’s original decision that the placement of the cross was unconstitutional. The L.A. Times has an op-ed on the case, in which columnist Israel Drazin offers the perspective of a former military officer.  The proposed compromise of transferring ownership of the cross – and the land on which it sits – to a veterans’ group, Drazin writes, would still “convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths” and would cause damage to the military institution by undercutting diversity and cohesion.  In an editorial, the New York Times also argues that the cross must be removed because it suggests that the government is “favoring one religion over others,” while a second L.A. Times editorial posits that the standard which was used to uphold a Ten Commandments monument on the grounds of the Texas Capitol could be used to protect the Mojave cross as well.  At the Wall Street Journal, Ted Cruz and Kelly Shackelford have an editorial which argues that the Court should uphold the placement of the Mojave cross, because removing it would reflect a “disturbing pattern” of government hostility towards religion.

Looking further forward, PrawfsBlawg has an analysis of the issues to be addressed in the Court’s upcoming arguments in Sullivan v. Florida (08-7621) and Graham v. Florida (08-7412).  Also anticipating this term’s coming cases, an L.A. Times op-ed discusses McDonald v. City of Chicago (08-1521), cautioning gun-control supporters (which the author is) that allowing states and cities to ignore some parts of the Bill of Rights, as a decision in McDonald could, would “undermine the requirement that they abide by others.”  And at Crime and Consequences, Kent Scheidegger highlights the issues at stake in Beard v. Kindler (08-992), which involves a habeas claim by a defendant who “defaulted” in state court when he escaped from custody and fled to Canada.

The debate continues over Monday’s announcement of the Court’s most recent certiorari denials and other orders.  The Miami Herald recaps Monday’s announcement that the Court would not grant cert. in a challenge to a law requiring students to recite the Pledge of Allegiance, while the WSJ Law Blog’s Ashby Jones discusses the Court’s decision not to hear arguments in the Roman Catholic Diocese’s challenge to an order compelling release of documents relating to allegations of child sex abuse.  The BLT also has a post detailing the upcoming recusals that were announced with Monday’s orders.

At the LA Times, David Savage reports on Justice Sotomayor’s first days on the bench.  Sotomayor fits right in “with her talkative fellow New Yorkers,” Savage writes, noting that the Justice asked thirty-six questions in her first hour alone, topping Justice Scalia’s thirty.  Savage also jokes that the new Justice upstaged Scalia outside the courtroom as well when she was asked to throw out the first pitch at a New York Yankees game. Scalia, another lifelong Yankees fan, “is awaiting his invitation.”  Ashby Jones at WSJ Law Blog recaps the L.A. Times story, predicting that we can expect Justice Sotomayor to be “quite chatty from the bench,” and at the National Law Journal, Tony Mauro looks back at the Justice’s first day, and the Huffington Post announces that “Sotomayor asks more questions in an hour than Thomas has in years.”

Above the Law’s David Lat and Kashmir Hill recently interviewed Justice Sandra Day O’Connor about her post-retirement work, and their discussion of the interview reveals that O’Connor is busier now than ever before.  The retired Justice is working with a non-profit organization to develop computer games which will teach seventh- and eighth-grade students about the government, and has been touring the country to promote that effort.  She’s also keeping up her recent advocacy against judicial elections, and told Lat and Hill that “we need to encourage judges and justices, when they speak in public arenas, to talk these matters, and to keep reminding Americans about the importance of an independent judiciary.”

Finally, the Volokh Conspiracy has compiled a list of what it considers some of the most important decisions by the Court, in response to professor Brad Smith’s request for the  “ten best Supreme Court decisions from a libertarian point of view.”  Seeking to hghlight cases which both “uphold important principles” and “have had a substantial real-world impact by preventing large-scale injustices,” Ilya Somin identifies Buchanan v. Warley, Schechter Poultry v. U.S., and the Peonage Cases of the early 1900s as some worthy contenders.  Volokh has also posted video of a recent Federalist Society Supreme Court preview panel, featuring Orin Kerr, Nick Rosenkranz, Gene Schaerr, and Cleta Mitchell, and moderated by Robert Barnes.