Federal Judiciary

Wednesday round-up

By Akin Gump Supreme Court Practice Group

First, an update on an event we announced last Friday: Washington Legal Foundation?s media briefing program ?The October 2009 Term at Halftime? has been postponed from this morning to Thursday, February 18, 2010 at 9:30am.

Reporting and commentary on the import of last month?s ruling in Citizens United v. FEC continues apace.  David Savage writes for the L.A. Times that the ruling ?reflects a profound shift among the conservative justices on the importance of the 1st Amendment and the nature of corporations.?  Savage credits the change to the influence of the Reagan era: ?All five justices who made up the majority in last month’s case, Citizens United vs. Federal Election Commission, were either appointed by Reagan or worked as young lawyers in the Reagan administration.?

The Wall Street Journal has an article chronicling the ?new urgency? of ?[a]n effort by activist shareholders to prod companies to disclose political contributions.?  Ralph Nader and Robert Weissman have an opinion piece in the same paper criticizing the Citizens United ruling and advocating for a constitutional amendment in response.  On PrawfsBlawg, Ian Bartrum analyzes Justice Kennedy?s justifications for overruling Austin v. Michigan Chamber of Commerce as part of the Citizens United ruling, and he concludes that ?the decision to overturn Austin was?at least for Kennedy?primarily a prudential one?and as such is subject to revisitation, potentially, after we get to see the policy in effect.?

Joan Biskupic of USA Today reflects on this Term?s oral arguments and notes that they ?have offered a series of reminders of how old-fashioned this court is and how whimsically dated its reference points can be.?

At the Daily Beast, Mark McKinnon and Myra Adams explain why the prospect of Hillary Clinton being nominated to the Court is ?not as far-fetched as you might think.?  Jonathan Adler also reflects on potential nominees at the Volokh Conspiracy, questioning the conventional wisdom on several of the usual suspects.

At the Volokh Conspiracy, Orin Kerr has a post on the ?surprisingly narrow argument? made by the petitioners in City of Ontario v. Quon, a Fourth Amendment case about government employees? privacy interest in text messages on government-issued pagers.  Kerr predicts ?that this narrow framing will make Quon a significantly less important case than it otherwise could have been.?  Also at the Volokh Conspiracy, Eugene Volokh analyzes the complicated circumstances of seeking cert. in a prison strip-search case decided yesterday by the Ninth Circuit, sitting en banc.  Because Justice Breyer?s brother was the trial judge, Justice Breyer will be recused, which ?might lead the plaintiffs? lawyers to avoid petitioning for Supreme Court review in this case.

In an essay on FindLaw, Michael Dorf examines Justice Thomas?s remarks at the University of Florida last week and draws a connection to Justice Sotomayor?s confirmation hearings, ultimately concluding that ?in acknowledging?even if only modestly and tentatively?that diversity of opinion on the Supreme Court is healthy, Justice Thomas has performed a valuable service.

Finally, the Detroit Free Press has a brief report on former Justice Sandra Day O?Connor?s speech at Wayne State University, in which she ?reiterated her call for choosing judges on a merit-based system.?

Full post as published by SCOTUSBLOG on February 10, 2010 (boomark / email).