Tuesday round-up

By Jay Willis
on Jan 19, 2010 at 9:34 am

In the wake of last week’s oral argument in United States v. Comstock, an opinion piece at the Wall Street Journal speculates on the ramifications of a possible reversal by the Court; allowing the federal government to commit sex offenders in the name of public safety, it writes, could “sanction the notion that any appealing idea may be justified as necessary and proper.”

Howard Wasserman at PrawfsBlawg comments on the Court’s order staying the broadcast of the California Prop. 8 trial.  Wasserman agrees with the Court’s decision on a procedural basis, noting that the Ninth Circuit simply did not comply with federal notice-and-comment requirements and instead seemed to be “winging it.”  However, he criticizes the Court’s assertion that it should not allow cameras at the trial because of its political and cultural volatility; Wasserman opines that such an important case in the public eye is a prime candidate for broadcast and concludes that the “substantive view undergirds the procedural decision.”

Adam Liptak of The New York Times discusses the role of speculation in Supreme Court opinions past and present.  Beginning with the Court’s recent assertion that witnesses in the Prop. 8 trial “would likely” suffer irreparable harm if the proceedings were televised, Liptak notes the Chief Justice’s recent prediction in his dissent in Melendez-Diaz v. Massachusetts that the decision would impose a “crushing burden” on state crime labs. Liptak also highlights, for example, Justice Stevens’ now-infamous assertion in Clinton v. Jones that the case appeared “highly unlikely to occupy any substantial amount” of the President’s attention.

Professors Craig Lerner and Nelson Lund of GMU Law will be guest-blogging this week at the Volokh Conspiracy on the so-called judicial “cult of celebrity.”  To minimize the influence of a justice’s personal agenda, the authors argue in favor of anonymous opinions, the inclusion of federal-question cases from each circuit on the docket, a reduction in the role of Supreme Court clerks, and a requirement that justices spend part of their time as a circuit court judge.

Finally, Joan Biskupic at USA Today highlights the stylistic and ideological differences between Justices Scalia and Breyer. Using exchanges from the recent oral arguments in American Needle, Comstock, and Briscoe, Biskupic concludes that the two justices are “unlikely to move each other” in the near future.