Wednesday Round-up

By Anna Christensen
on Dec 9, 2009 at 9:54 am

Decisions handed down by the Court in four cases yesterday dominate today’s headlines. The AP, MSNBC, ABC News, JURIST, and the BLT all have coverage of the Court’s decision in Mohawk Industries v. Carpenter, an attorney-client privilege dispute that was also Justice Sotomayor’s first opinion since she joined the Court.  The Court held unanimously that disputes in federal court about the attorney-client privilege cannot be appealed right away; although the decision was unanimous, Adam Liptak of the New York Times describes Justice Thomas’s concurrence in the case as “testy.”

An AP article published in the Los Angeles Times reports on yesterday’s decision in Beard v. Kindler, which reversed a Third Circuit finding that a death row inmate’s lawyer had provided ineffective assistance during the sentencing phase of his trial.  JURIST covers yesterday’s decision in Alvarez v. Smith, holding that individuals whose personal property was seized during a drug investigation could not challenge the seizure because the parties had already resolved underlying disputes concerning ownership; also reporting on Alvarez, the Volokh Conspiracy observes that in its ruling, the Court avoided the “potentially important” constitutional question, while the Christian Science Monitor recaps the case’s background. Also at JURIST is a piece on the Court’s decision in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, which turns on arbitration requirements under the Railway Labor Act.

Several publications noted the Court’s conspicuous silence on the closely watched Citizens United v. Federal Election Commission, following speculation that a ruling in the case would come yesterday. At the L.A. Times, Johanna Neuman recaps the case and the controversy surrounding it, and NPR also comments on the continuing anticipation over Citizens. The Volokh Conspiracy’s John Elwood speculates that the delay on the ruling might indicate that the Justices are expending significant energy on it, and Rick Hasen at Election Law Blog follows up on Elwood’s post, detailing the pressure the Court is no doubt under as it works to resolve the case.

In addition to handing down opinions yesterday, the Court heard arguments in two corporate-fraud disputes which garnered significant attention in their own right. The cases, Weyhrauch v. United States and Black v. United States, both involved challenges to the honest services fraud law, which has been used to convict a number of public officials and corporate executives since its enactment in 1988.  The Wall Street Journal offers a detailed recap of the arguments made for and against former media executive Conrad Black, who is charged with defrauding the company he headed and thereby depriving it of his “honest services”; in a second article, the Journal predicts that a decision in Black’s appeal will have far-reaching implications for white-collar prosecutions, particularly in the context of the recent financial crisis.

Mark Sherman of the Associated Press also recaps the arguments in Black and Weyhrauch, observing that the Justices seemed hesitant to let the honest services law stand; Justice Breyer, for one, worried that its application would go so far as to criminalize employees who read the Daily Racing Form during work hours. At the L.A. Times, David Savage agrees, highlighting the Justices’ criticism of the vagueness of the law, while NPR has audio of Nina Totenberg’s analysis of today’s proceedings. USA Today, the Washington Post, the Wall Street Journal, and the Chicago Tribune also have coverage, and Lyle offers a detailed analysis of the core issues at SCOTUSblog.

In the blogosphere, Conglomerate’s Christine Hurt reports on the Black and Weyhrauch arguments in detail, examining the possible applications of the honest services law and warning that, if the Court upholds it, “all of you who ordered merchandise off of your work computer on Black Monday might start getting a little nervous.” Hurt also discusses the cases’ relevance to the upcoming argument in Skilling v. United States, the third “honest services” dispute on the Court’s docket this term.  At White Collar Crime Prof Blog, guest blogger Timothy O’Toole highlights the Justices’ unease with the scope of the law and the likelihood that the test proposed by the United States would not narrow the statute sufficiently to avoid the problems addressed.  Finally, PrawfsBlawg writes that a ruling striking down the honest services law could put an end to the “corruption of allowing federal prosecutors to define corruption.”

In other honest services news, the Chicago Sun-Times reports that prosecutors, responding to today’s cases, plan to re-indict former Illinois governor Rod Blagojevich to avoid inconsistencies with possible rulings in Black, Weyhrauch, and Skilling.  Blagojevich is currently accused of violating the honest services fraud law, and his prosecutors hope to avoid a possible trial delay by filing a superseding indictment in his case.

Monday’s grant of certiorari in Christian Legal Society v. Martinez is still in the news as well. Ashby Jones, writing for the WSJ Law Blog, argues that the case implicates gripping ideological issues, pitting nondiscrimination policies against religious freedom concerns.   Mike Dorf at Dorf on Law addresses what he calls the “fundamentally unsolvable dilemma of liberalism” inherent in the case, contextualizing the dispute in the theories of Rousseau and O.W. Holmes. PrawfsBlawg, following up on Dorf’s post, compares the case to FAIR v. Rumsfeld, a case involving a group of schools which had decided to bar military recruiters from campus access. Volokh Conspiracy’s David Bernstein, writing on the cert. grant, recalls addressing the same question in a 2008 Federalist Society panel; in his answer, he noted that the distinction “between status-based discrimination and ideology-based discrimination” is critical in making sense of the dispute.

Looking back at Monday’s arguments in Free Enterprise Fund v. PCAOB, Tony Mauro writes for the National Law Journal that the Court seemed reluctant to agree that the Public Accounting Oversight Board should be ruled unconstitutional. The WSJ Law Blog’s Ashby Jones speculates that a ruling in the case will involve a predictable split between the traditionally conservative and traditionally liberal Justices, with Justice Kennedy providing the crucial swing vote. The more liberal Justices, Jones reports, may be unlikely to find fault with the regulatory board at issue, while some conservative Justices seemed inclined to believe that the president’s limited control over PCAOB renders it unconstitutional.

After the Supreme Court declined to intervene yesterday morning, Kenneth Biros was executed by lethal injection in Ohio, the New York Times reports. Biros was the first inmate to be executed using a new, and allegedly more humane, lethal-injection method. Because the new procedure was being used for the first time, Biros’s lawyers had urged the Supreme Court to halt his execution on the grounds that it was equivalent to human experimentation. Ohio’s adoption of the new execution method comes in the wake of a botched lethal-injection attempt in September which generated widespread criticism of lethal injection and of capital punishment in general. Sentencing Law and Policy discusses the ways in which this new protocol might affect the debate over capital punishment.