Tuesday round-up

By Kiran Bhat
on Feb 22, 2011 at 9:55 am

With its winter recess now over, the Court will hear oral argument this morning in two cases. First up is Bond v. United States, in which Carol Anne Bond is challenging her federal chemical weapons conviction for smearing another woman’s mailbox with toxins. Bill Mears at CNN, Garrett Epps at The Atlantic, and Andrew Cohen at Politics Daily all preview the case, as does Lyle Denniston for this blog. Cohen notes that Bond’s argument – “that Congress had no power to enact a federal law that impinges upon state authority” – has “enormous political consequences” because “[c]onservatives have been pushing federal courts to expand their interpretation of the 10th Amendment to curb federal power.”  Relatedly, Lyle notes that the case can “[i]n some ways” “be thought of as the opening volley in the coming constitutional skirmish over the modern Congress’s expansive use of its powers to pass laws that may be said to intrude on states’ rights — such as the new health care law.”

In today’s second case, United States v. Tinklenberg, the Court will consider the circumstances in which the time between a pretrial motion and the court’s ruling on it does not count towards the Speedy Trial Act of 1974’s limitation on the length between the filing of charges and the start of trial.

News coverage and commentary also continue to focus on the intersection of politics and the Court. The editorial board of the Providence Journal acknowledges that “[a] certain amount of freedom among the justices is good,” but it cautions that “[i]n these intensely partisan times, the justices should take special care to avoid appearing biased and lacking in judicial temperament.”  Ben Adler of Salon cites  the recent controversies regarding Justice Thomas as an example of the need for the Code of Judicial Conduct to apply to the Justices, while the editorial board of the Washington Post urges all of the Justices to be “careful not to put themselves in situations where their impartiality is cast in doubt or allow themselves to be seen as on one side.” Ken Jost writes more broadly about the role of Justices in politics in reviewing Noah Feldman’s New York Times opinion piece (which James covered in last Monday’s round-up). Taking things a step further, Ruthann Robson asks whether Congress can regulate Supreme Court ethics on the Constitutional Law Prof Blog.

Dan Horn’s article in the Cincinnati Enquirer about the Sixth Circuit’s fifteen-case “losing” streak at the Supreme Court garnered comment from Jonathan Adler at the Volokh Conspiracy, who argues that the appointment of new judges will help realign the Sixth Circuit with Court precedent in the years ahead.

Greg Stohr and Bob Ivry of Bloomberg News report on recent developments in The Clearing House Association v. Bloomberg, in which a group of commercial banks has asked the Court to review the Second Circuit’s decision requiring the disclosure of Federal Reserve emergency-lending records.  The United States recently filed a brief in which it opposed certiorari but criticized the lower court’s decision as “improperly forcing release of commercially sensitive information.” Brent Kendall of the Wall Street Journal also has coverage.

Briefly:

• At the Volokh Conspiracy, Orin Kerr explains why the Chief Justice’s willingness to assign the opinion in United States v. Comstock to Justice Breyer and join that opinion demonstrates that he will be unwilling to strike down the health-care law.
• In the Palm Beach Post, Jane Musgrave reports on efforts by two juveniles convicted of rape to have their sentences vacated in light of the Court’s decision last Term in Graham v. Florida, holding that a sentence of life-without-parole for non-homicide crimes is unconstitutional for juveniles.
• Rich Lord of the Pittsburgh Post-Gazette reports on a cert. petition filed recently by a man who was wrongfully imprisoned; the lower courts held that the county was not liable for the man’s arrest and incarceration because at the time there was no right to be free from reckless homicide investigations.
• Both Joan Biskupic of USA Today and Adam Liptak of the New York Times preview Ashcroft v. al-Kidd, while Orin Kerr also explains why al-Kidd is a “strange case” for this blog.
• To mark the Court’s return, Ariane de Vogue of ABC News discusses some of the argued cases that have not yet been decided, and she previews some of the upcoming arguments, including al-Kidd and the Arizona campaign finance case McComish v. Bennett.