Federal Judiciary

Tuesday round-up

By James Bickford

Today?s coverage of the Court mixes this Term?s cases with decisions from recent years, as well as more on the health-care law. 

The editorial board of the New York Times discusses FCC v. AT&T, in which the Court is considering whether a corporation can claim a right to ?personal privacy? under the Freedom of Information Act.  The board warns that ?[t]he creation of corporate privacy would transform F.O.I.A. into a battleground, between individuals and others seeking to hold the government accountable, including journalists, and corporations trying to block the release of records because of this new-found claim.?  Also in the Times, Adam Liptak revisits the Court?s decision in Citizens United?which looms in the background of FCC v. AT&T.  He observes that critics of the decision have often focused on the idea that ?the majority was wrong to grant First Amendment rights to corporations,? but he also notes that such critics must explain how publishers and newspapers, both commonly corporate entities, would be treated in a world in which corporations did not enjoy the protections of the First Amendment.

In Newsweek, Ezra Klein looks at the role that Justice Anthony Kennedy may play in resolving the constitutional challenges to the recent health care law, arguing that ?Kennedy, the presumed moderate on the court, could usher in an age of immoderation? if he votes to strike down the individual mandate.  In that case, Klein suggests, ?the health-care debate will turn back to the big-government solutions that conservatives spent so long trying to persuade Democrats to give up.?  On the op-ed page of the New York Times, Laurence Tribe disputes the conventional wisdom that the Court?s ultimate decision will be a close one, writing that ?[t]here is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is ? a political objection in legal garb.?

The George Washington University Hatchet reports on Justice Ruth Bader Ginsburg?s suggestion that challenges to the health care law would not be expedited but rather take ?the ordinary route? to the Court.  The Justice spoke with Nina Totenberg at a university event last week.  (Thanks to How Appealing for the link.)  Lyle Denniston also discusses the Justice?s comments for SCOTUSblog today. 

Finally, in the New York Times, Lawrence Hurley of Greenwire looks at the aftermath of Rapanos v. United States, a 2006 case that he describes the Court as having ?bungled.?  At issue in Rapanos was the definition of the phrase ?navigable waters? under the Clean Water Act; Justice Kennedy provided the fifth vote in a concurring opinion that set out a ?significant nexus? test.

Full post as published by SCOTUSBLOG on February 08, 2011 (boomark / email).