Wednesday round-up

By Adam Chandler
on Nov 3, 2010 at 10:02 am

Yesterday’s oral argument in Schwarzenegger v. Entertainment Merchants Association has dominated Supreme Court coverage for the last twenty-four hours. Virtually all major news organizations have covered the story. Many outlets describe the Court simply as “split” on the issue (e.g., the Wall Street Journal, the Los Angeles Times, and the Associated Press (via the Washington Post)), while others conclude that, despite having the apparent support of the Chief Justice and Justices Alito and Breyer, California’s violent video games law is unlikely to survive the Court’s review (e.g., SCOTUSblog, Kotaku, and the San Francisco Chronicle). Journalists described the argument as “lively and sometimes testy” (the New York Times), “vigorous” (the Christian Science Monitor), “animated and sometimes contentious” (the Washington Post), “dramatic” (CNN), “engaging – and amusing” (USA Today), and “hotly debated” (TIME). GamePolitics.com, Kotaku, and First One @ One First have photos of the scene outside the Court before the argument, which included several protesters amidst a lengthy queue.

One noteworthy exchange during the argument suggested a jurisprudential schism between two of the Court’s conservative Justices and was included in nearly every report on the argument. At one point in the argument, Justice Alito quipped, “I think what Justice Scalia wants to know is what James Madison thought about video games.” Justice Scalia retorted that he actually wanted to know what James Madison thought about violence. (Slate’s Dahlia Lithwick recounts this exchange and others in a lighthearted argument recap she frames as a video game.)

NPR, the Financial Times, the National Law Journal, the WSJ Law Blog, ACSblog, Bloomberg, ABC News, PCWorld (and here and here), MTV, Reason’s Hit & Run blog, McClatchy Newspapers, Forbes, First One @ One First, and Courthouse News Service have further coverage of the argument.

The Justices heard oral argument in two other cases yesterday, as well. SCOTUSblog, Courthouse News Service, and Associated Baptist Press all have coverage of the argument in Sossamon v. Texas, a sovereign immunity dispute over the Religious Land Use and Institutionalized Persons Act. (Disclosure:  Howe & Russell and Akin Gump represented petitioner Harvey Sossamon, but the author of this round-up was not involved in the case.)  The other case is Staub v. Proctor Hospital, an employment discrimination case, which is recapped at Courthouse News Service. (Disclosure: Akin Gump represents the petitioner in Staub, but the author of this post is not involved in the case.) JURIST has capsule summaries of all three of yesterday’s arguments.

This morning, the Court will hear oral argument in Arizona Christian School Tuition Organization v. Winn, an Establishment Clause challenge to Arizona’s tuition tax credit program. In the opinion of the Wall Street Journal’s editorial board, the program’s constitutionality “isn’t a close call,” and – in an apparent dig at the Ninth Circuit, which held that the program is unconstitutional – it expressed hope that “the Justices knock this one clear out of the ballpark and all the way back to San Francisco.” In an op-ed for the Washington Examiner, Rep. Trent Franks (R-AZ) also argues that the program—which he authored in the Arizona state legislature—is constitutional.

Briefly:

• In an opinion piece for the National Law Journal, Senator Sheldon Whitehouse (D-RI) considers factors that could signal the presence of judicial activism. (ACSblog highlights and summarizes the piece.)

• At the Volokh Conspiracy, John Elwood discusses a recently filed petition on the extent to which a court can address an employment dispute between a church and a pastor under the Free Exercise Clause.