Wednesday Round-up
on Sep 16, 2009 at 8:51 am
The New York Times reports that the Obama administration has reneged on its earlier decision to not ask the Supreme Court to block the release of photos showing the abuse of prisoners in Iraq and Afghanistan.  In an appeal filed last month, the Obama administration argued that the photos would “inflame anti-American opinion…thereby endangering them in theaters of war.”  The government originally contended that the photos should be suppressed under a FOIA exemption that restricts the release of “information complied for law enforcement purposes” that might “endanger the life or physical safety of any individual.”  Adam Liptak explains that if the Court agrees to hear the appeal, its decision will hinge on whether the Court will agree that this exception can be expanded to protect the safety of military personnel overseas, which Liptak notes is “only tangentially related to law enforcement.”  A decision on the appeal may come as early as next month.
Justice O’Connor continues to make news after she criticized judicial elections while addressing students at Seattle U earlier this week, according to the Seattle PI.  At a town hall meeting on Monday, the retired justice lamented the decline of civics and history instruction as contributing to students “disengaged from our civic life,” and called for high schools to require courses in American history and civics as prerequisites for graduation.  During the meeting, Justice O’Connor also briefly discussed her Grutter opinion and, when asked if she had any words of wisdom for the newest justice, told attendees that she advised Justice Sotomayor to “try to get along with everybody” as she begins her first term.
Above the Law posts some analysis of the strategy behind the newly re-filed opposition to the nickname of the Washington Redskins. Â The latest request asks the Supreme Court to reconsider the May 2009 appeals court decision, which dismissed the complaint on the grounds that petitioners waited too long to file their claims and declined to actually rule on whether the term “redskin” is offensive. Â But this time, petitioners have a backup plan as well; should their request be denied, a younger group of Native American petitioners (also represented on a pro bono basis by Philip Mause of Drinker Biddle & Reath) hopes to avoid this pitfall and press the issue of the term itself to the Court.
Continuing the blogosphere’s running analysis of Citizens United, How Appealing posts an article by Lawrence Hurley of the LA Daily Journal.  Hurley conducts an analysis of the confirmation hearings of Justices Roberts and Alito and concludes that that if both justices vote, as expected, to overturn Austin in the Citizens decision, their comments during confirmation hearings do not necessarily preclude them from doing so. Hurley points out that though the then-nominees expressed support for stare decisis during their hearings, they also both acknowledged circumstances in which the Court can overrule earlier decisions; Justice Alito cited Plessy v. Ferguson, for example, as a poor decision that the Court later correctly overruled.  In Citizens, Hurley points to the possibility that the two justices will consider Austin as a “recent ruling that is not settled law” to justify overturning the earlier decision.
Justice Scalia offered some sage advice to future lawyers while signing copies of his book, Making Your Case: The Art of Persuading Judges, on Monday in Chevy Chase, MD. According to Politico, Scalia spoke of the importance of researching a judge’s background before appearing before the bench in order to better tailor arguments to a judge’s personal preferences.  The always-frank justice also recommended that advocates “[b]e brief,” not “beat a dead horse,” and “shut up and sit down” when one’s time for argument expires.  Justice Scalia named My Cousin Vinny as his favorite legal movie, and of its star Marissa Tomei, he opined: “God, she’s a killer.”
Finally, a brief note for legal-minded philatelics: BLT and Legal Beat report that the U.S. Postal Service is releasing four commemorative postage stamps honoring Justices Joseph Story, Louis Brandeis, Felix Frankfurter, and William Brennan, Jr.  The stamps arrive next Tuesday at a post office near you.
