Wednesday round-up

By Adam Chandler
on Jun 15, 2011 at 6:35 am

Commentators continue to analyze Monday’s opinions, particularly Nevada Commission on Ethics v. Carrigan, in which the Court held that a Nevada ethics law which prohibits legislators from voting when they have a conflict of interest is not unconstitutionally overbroad.  At the First Amendment Center, Tony Mauro discusses Justice Scalia’s reliance on historical arguments in Carrigan and other First Amendment cases. (Thanks to Howard Bashman of How Appealing for the link.) In a Balkinization post that Rick Hasen of the Election Law Blog labels a “must-read,” Deborah Hellman contends that the rationale for the Carrigan decision “can be easily extended to unravel the Court’s campaign finance doctrine.” (Also at Balkinization, Mark Tushnet highlights a passage from Justice Scalia’s majority opinion that he describes as “approach[ing] elegance.”) The editorial board of the Los Angeles Times applauds the decision, describing it as “good news for citizens who want their elected representatives to be held to high standards of integrity.”

In the Boston Globe and (separately) at ACSblog, Martha Davis criticizes the result in Flores-Villar v. United States, a gender-discrimination case in which an equally divided Court (with Justice Kagan recused) affirmed, without an opinion, a decision of the Ninth Circuit upholding the constitutionality of a citizenship-transmission statute that treats U.S. fathers differently from U.S. mothers. At ACSblog, she observes that, “[b]ecause the Court could muster only a single sentence, historians – not journalists and law professors – will be the ones who tell the story of Flores-Villar v. U.S.”

The editorial board of the New York Times criticizes the Court’s decision in the securities fraud case Janus Capital Group v. First Derivative Traders, which held that a mutual fund investment adviser cannot be held liable for misstatements in the fund’s prospectuses because it did not “make” the misstatements.  In the board’s view, “[t]here is no doubt” that the adviser is responsible for the misstatements; “[i]t used legal ventriloquism to speak through the business trust and Janus funds.”

Briefly:

• Gwen Ifill of the PBS NewsHour interviews retired Justice John Paul Stevens about his forthcoming book, changes on the Court, and his tennis game.

• In his Sidebar column for the New York Times, Adam Liptak discusses the Justices’ increasing use of dictionaries in their opinions, a practice he describes as “booming.” The Volokh Conspiracy, Constitutional Law Prof Blog, the Conglomerate, and ABA Journal all take note of the column.

• The Associated Press (via the New York Times and noted by the WSJ Law Blog) surveys the Justices’ summer plans.

• In a guest post at Election Law Blog, Anita Krishankumar analyzes Justice Scalia’s dissent in Sykes v. United States, in which the Court held that fleeing from a police officer in a car is a “violent felony” for purposes of the Armed Career Criminal Act.  The dissent, she suggests, “presents an interesting take on the Court-Congress dialogue.”

• The Hollywood Reporter asks, “Why has the Supreme Court taken so long on [the] video game ruling?” (i.e., Brown v. Entertainment Merchants Association). At the Legal Pulse, Richard Samp reads the tea leaves and guesses that “Chief Justice Roberts assigned the Brown decision to himself, and is writing a decision striking down California’s restrictions on violent video games.”

• In a New York Times obituary for law professor David Baldus, Adam Liptak recounts how Baldus’s “pioneering research on race and the death penalty came within a vote of persuading the Supreme Court to make fundamental changes in the capital justice system.”