Wednesday round-up

By Adam Chandler
on Dec 1, 2010 at 9:21 am

Yesterday the Court heard oral argument in two cases and issued a unanimous decision in another. The day’s activity generated substantial coverage, and in particular, the oral argument in the California prison overcrowding case, Schwarzenegger v. Plata, grabbed headlines in nearly every major news outlet.

Journalists and commentators who have read the tea leaves of the argument differ slightly in their predictions of the case’s outcome. David Savage of the Los Angeles Times, Bill Mears of CNN, Bob Barnes of the Washington Post, Bob Egelko of the San Francisco Chronicle, Joan Biskupic of USA Today, and Mark Sherman of the Associated Press (via the Washington Post) all predict that a majority of the Court will uphold the court order requiring California to reduce its prison population by some 40,000 inmates. Without predicting the outcome, NPR’s Nina Totenberg and the Christian Science Monitor’s Warren Richey identify Justice Kennedy as the likely deciding vote in the case. SCOTUSblog’s Lyle Denniston agrees and adds that “it seemed that [Justice Kennedy] would not be willing to overturn th[e] release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope.” (Kent Scheidegger at Crime & Consequences endorses Lyle’s reading of the argument.) Like Lyle, Bloomberg’s Greg Stohr concludes that Justice Kennedy seems likely to “require changes in the order without overturning it altogether.” And Adam Liptak of the New York Times reports that “it was not clear that a majority was ready to endorse [the] order by a special three-judge federal court.”

The Wall Street Journal, the PBS NewsHour (video), Constitutional Law Prof Blog, the San Francisco Bee, the San Francisco Chronicle editorial board, FOX News, Courthouse News Service, Reuters, and JURIST have further coverage and analysis of the Plata argument. Courthouse News Service also has coverage of the argument in the ERISA case argued yesterday, CIGNA Corp. v. Amara.

Yesterday’s unanimous decision in Los Angeles County v. Humphries also garnered attention. In Humphries, the Court held that a plaintiff suing a local government for federal civil rights violations must show that her injury resulted from a policy or custom of the local government to obtain an injunction or a declaratory judgment. CNN’s Bill Mears writes that the Justices “ruled strictly on the complex, rather dry legal arguments, refusing to offer any sympathetic thoughts on the plight of either the parents in question, or the county.” The Los Angeles Times, the Associated Press (via the Los Angeles Times), Education Week’s School Law blog (thanks to Howard Bashman of How Appealing for the link), JURIST, and Courthouse News Service all have additional coverage.

Discussion and analysis of Schwarzenegger v. Entertainment Merchants Association, the violent video games case argued last month, continue. In an op-ed for the Los Angeles Times, Gail Markels and George Rose contend that California’s law restricting the sale of such games to minors is, at a practical level, unnecessary because it “empower[s] state bureaucrats to do what parents and retailers are already doing at no cost to taxpayers.” Meanwhile, at Concurring Opinions, Joshua Fairfield offers a critique of the argument itself, which in his view sounded “as though we were discussing the game industry of 20 years ago — one in which video game makers are like movie directors and control the content of their creations, and one in which games are sold over the counter rather than by digital distribution.  Both ideas are now very much out of date.”

Briefly:

• USA Today’s Joan Biskupic has an article recapping her “extensive” in-chambers interview with Justice Breyer yesterday.

• The AtlanticWire’s Elspeth Reeve rounds up commentary on Bush v. Gore, decided ten years ago this month (via the National Journal).

• At PrawfsBlawg, Steve Vladeck discusses the Eleventh Amendment case Virginia Office for Protection and Advocacy v. Stewart, in which the Court will hear oral argument this morning.

• At the Conglomerate, William Birdthistle previews next Tuesday’s argument in Janus Capital Group, Inc. v. First Derivative Traders. Birdthistle observes that “the Court could with one drawing of a line immunize almost all public corporations from private suit and virtually eliminate the securities class-action lawsuit.”

• Seth Stern at the Huffington Post and Tom Scocca on his eponymous Slate blog offer their reactions to retired Justice John Paul Stevens’s essay on the death penalty in the New York Review of Books (covered in Monday’s round-up). Stern, one of Justice Brennan’s biographers, thinks that Justice Brennan “might have felt some measure of vindication had he lived long enough to witness Stevens emerge as a forceful opponent of the death penalty.”

• And finally, Media Law Prof Blog highlights a new paper that uses “the media depiction of Supreme Court nominees [as a] mechanism for evaluating gender equality in the legal profession’s pipeline to power.”