Friday Round-up

By Anna Christensen
on Dec 4, 2009 at 11:17 am

The discussion of next week’s cases has begun at ACSblog, where Peter M. Shane previews Monday’s argument in Free Enterprise Fund v. PCAOB (08-861).  Shane examines the separation-of-powers implications of Free Enterprise Fund, which will determine the constitutionality of the Public Company Accounting Oversight Board.  Although the D.C. Circuit relied on the Court’s decision in Morrison v. Olson, Shane argues that changes on the Court – and in particular the addition of Chief Justice Roberts and Justices Thomas and Alito – might now tip the balance.

The Wall Street Journal has this editorial on Free Enterprise, in which it describes the 2002 Sarbanes-Oxley act as the “last great Congressional overreaction.”  Because Sarbanes-Oxley’s mandate has cost the U.S. economy nearly $1 trillion, the Journal argues, the Court’s decision on the case will have strong implications as Congress works to pass new legislation in response to the current financial crisis.  At Bloomberg, Greg Stohr and Ian Katz have a preview of the case, while SCOTUSblog’s own Lyle Denniston posted a detailed analysis of the issues yesterday afternoon.

Continuing the coverage of this week’s orders, The Volokh Conspiracy reports on the Court’s per curiam opinion in Porter v. McCollum, in which the Court reversed a lower court’s ruling rejecting an ineffective assistance claim.  Noting that Porter was the Court’s third summary reversal this Term in an ineffective assistance case, Jonathan Adler posits that “it would appear the Court is quite unhappy with how appellate courts are handling ineffective assistance claims.”

And in the New York Times, Linda Greenhouse has an opinion piece discussing the “selective empathy” inherent in the ruling.  In determining that it was “objectively unreasonable” to reject the possibility that a competent attorney could have produced a different sentence by describing Mr. Porter’s wartime experience and the trauma that it produced, Greenhouse writes, the Justices revealed their sympathy for the defendant, in contrast to their ruling last month to uphold the execution of death-row inmate Robert Van Hook.

In a recap of Wednesday’s argument in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a Washington Post editorial argues today that the petitioners in the case, homeowners whose private beachfront property has been “restored” by the state, should prevail. The Post agrees with the homeowners’ argument that Florida’s actions constitute an illegal uncompensated government “taking,” and it emphasizes that the state government should not be permitted to fundamentally and unilaterally “change the nature of private ownership.”  Lyle recapped oral arguments in Stop the Beach for SCOTUSblog on Wednesday; check SCOTUSblog later this morning for additional analysis by Stanford 3L Elisabeth Oppenheimer. (Update: Elisabeth’s post can now be accessed here.)

In anticipation of the decision in Citizens United v. Federal Election Commission, Balkinization’s David Gans reports on the Constitutional Accountability Center’s new discussion draft, “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution , which is scheduled for formal release in January.  The draft takes an historic look at the Court’s treatment of corporations’ constitutional rights, and Gans’s coverage includes the interesting observation that at one time – during the “infamous Lochner era” – the Court did grant equal constitutional protections to corporate entities.

At the Volokh Conspiracy, John Elwood follows up on his earlier post regarding the Court’s failure to hand down any opinions yet this Term.  Elwood suggests that the Court is now “on a glide-path to at least tie the latest initial hand-down day of the post-war era.”

CNN’s Bill Mears has an interview with Joan Biskupic, author of the just-published biography of Justice Scalia, American Original. In their conversation, Mears and Biskupic touch on Scalia’s early career, his private persona, and his long-term goals for the Court.  (In November, Tom interviewed Biskupic for SCOTUSblog; a podcast of their conversation about the book is available here.)

Following a last-minute appeal to the Supreme Court last night, the State of Texas executed Bobby Wayne Woods, the New York Times reports.  Woods’s lawyers had argued that he could not be executed because his low I.Q. – which was measured at between 68 and 86 – was at the the threshold for mental retardation, which the Court in Atkins v. Virginia described as “around 70” or lower.