Round-up

In the wake of last week’s oral argument in United States v. Comstock, an opinion piece at the Wall Street Journal speculates on the ramifications of a possible reversal by the Court; allowing the federal government to commit sex offenders in the name of public safety, it writes, could “sanction the notion that any appealing idea may be justified as necessary and proper.”

Coverage of Friday’s cert. grant in Doe v. Reed dominated the headlines over the weekend.  Adam Liptak of the New York Times has coverage of the case, in which the petitioners – who signed petitions supporting a referendum on a Washington state law extending the benefits of marriage to couples who registered as “domestic partners – seek to preclude the disclosure of their names and contact information.  The Christian Science Monitor analyzes whether the groups seeking disclosure of the signatures are seeking "conversation or confrontation," while Linda Greenhouse (in online commentary for the New York Times) compares the case to the ongoing challenge to California’s Prop 8 and Citizens United v. FEC, writing that "a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off."  The Blog of Legal Times also has coverage of the case, which "may be argued in April," while SCOTUSblog's own Lyle Denniston points out that "[t]he outcome of the case could affect publicity about petition-signers in the 27 states that have either an initiative or a referendum option for voters, or both."

The Washington Post measures reactions to the Court’s opinion staying the plan to broadcast coverage of the Prop 8 trial, which “is being scoured by legal analysts and activities for deeper meaning.” Justice Kennedy receives attention  on the Cato Institute’s blog, where Ilya Shapiro discusses Helen Knowles’s book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.  Knowles posits that Kennedy, whom many perceive to be a “swing vote,” has a “modestly libertarian” jurisprudence.  Shapiro, who reviews the book in the most recent issue of the Harvard Journal of Law & Public Policy, concurs in part:  he suggests that Kennedy’s libertarianism is limited to only a few areas of the law, such as free speech, equal protection, and individual liberty.

One decision, two arguments, and a stay kept Supreme Court journalists and bloggers busy yesterday. Drawing the most attention was the Court’s five-to-four decision to continue its temporary stay of a plan to broadcast the Proposition 8 trial to five federal courthouses across the country.  The New York Times and this blog noted that the extended stay effectively shuts off the possibility that any portion of the trial, which is expected to last only a few weeks, will be broadcast.  The Washington Post points out that the Court’s liberal bloc is “joined for the first time in an ideological split by [Justice] Sotomayor.”  Ed Whelan extracted some of the key excerpts from the Court’s decision, and Eugene Volokh has two posts at the Volokh Conspiracy critiquing elements of the opinions.

The leading topic in the news is today’s upcoming argument in American Needle v. NFL. The Wall Street Journal editorial page urges the Court to affirm the lower court decision, arguing that the League should not be subject to antitrust law because consumers are not harmed by its economic collaboration.  The New York Times takes the opposite posture, arguing that a ruling in the NFL’s favor would grant it license to inflate prices for its team insignia. The WSJ Law Blog has a piece predicting that “much could turn on” whether the League is viewed as a single entity or multiple teams under federal antitrust law. Above the Law previews the case, offering details about the case’s procedural history, as does USA Today. At Above the Law, David Lat discusses the debate over permitting cameras in the courtroom of the California Proposition 8 trial, coming down strongly in support of allowing the cameras.  He quotes extensively from the report on the matter by Lyle Denniston of this blog.  Meanwhile, Ashby Jones of the WSJ Law Blog focuses on the endorsement of cameras by chief judge Alex Kozinski of the Ninth Circuit, and predicts that the debate over televised proceedings in federal courts might soon be “coming to a head.”  Ed Whelan, on his blog at the National Review Online, remarks on what he sees as the “joint gamesmanship of Judge Walker and Ninth Circuit chief judge Alex Kozinski in support of their goal of televising the anti-Proposition 8 show trial.”  Finally, Law Dork posts a video interview of the two lawyers arguing the case, Ted Olson and David Boies, from The Rachel Maddow show.

The beginning of the much-publicized District Court trial of Proposition 8 leads Supreme Court coverage early this week.  NPR and the WSJ run extensive previews of the California trial.  Both feature speculation on how the current Court might rule on the issue should it reach that stage of the appeals process; NPR’s coverage notes that while opponents of Prop. 8 are concerned that the “conservative-leaning Supreme Court might be reluctant to strike [it] down,” the measure’s proponents worry about the matter passing through the more liberal Ninth Circuit.

Tony Mauro of The National Law Journal observes that, at the Supreme Court, "there is a sense that the term is just now beginning to take shape."  He previews the more anticipated upcoming cases scheduled for this term, and notes that the Court may release an opinion in Citizens United v. FEC as early as this Tuesday.  The Washington Post also reports that a decision in Citizens United could soon be released, explaining that, if the majority opinion overturns current campaign finance laws, some Justices may be drafting extended dissents, and this could explain the current delay.  Alternatively, it may be that no opinion has both provided clear guidance on the future of campaign finance laws, and drawn a majority of votes on the Court.   The Huffington Post also covers the case. On the subject of campaign financing and Citizens United, the New York Times examines current election-cycle fundraising and spending, noting that although the Court has not yet released an opinion, "Democrats in the House and the Senate have begun lamenting its expected result” – cutting away restrictions on campaign financing  The Times tabulates recent campaign spending by both Democrats and Republicans, and also writes about the A.F.L.-C.I.O and N.R.A.'s interests in the case.

Today, coverage continues of yesterday’s oral arguments in Al-Maqaleh v. Gates, in which the D.C. Circuit will determine whether detainees held at Bagram Air Force Base in Afghanistan have the same habeas corpus rights extended to Guantanamo Bay detainees by the Supreme Court in Boumediene v. Bush.  As Lyle reported yesterday afternoon on this blog, the panel’s questioning addressed the Court’s intention when it ruled in 2008 that at least some suspects in military custody have the right to challenge their detention in federal courts.  The Washington Post covers the proceedings, noting that the judges seemed hesitant to extend Boumediene to the Bagram detainees, and the BLT also discusses the oral arguments, highlighting attorney Tina Foster’s argument that the government should not be allowed to selectively apply habeas corpus rights by moving detainees from prison to prison.  An AP article also provides a detailed recap of the proceedings.  While Al-Maqaleh has yet to be decided at the appellate level, Lyle’s post yesterday confirms that the case is almost certainly bound for the Supreme Court.

American Needle v. NFL, in which the Court will consider whether the National Football League and its teams are one entity for purposes of federal antitrust law, is getting a lot of attention prior to its oral argument next Wednesday. The January edition of the ABA Journal asserts that a ruling in favor of the league would give it – as well as Major League Baseball, the National Basketball Association, and the National Hockey League – “almost total control over nearly every aspect of operations on and off the field, including repeated disputes over franchise location, players union relations, individual player contracts and televised delivery of games.”  On the other hand, Tom Van Riper at Forbes argues that such a ruling is unlikely to cause major ripples in sports, especially for the players’ unions; Van Riper notes that the Major League Baseball Association has enjoyed an antitrust exemption for years without significant loss to its players. The New York Times also previews the case.

Last month Michigan asked the Supreme Court to order Illinois to block the entry of Asian carp, a ravenous fish species, into Lake Michigan—a request that has since been joined by Minnesota, New York, Ohio, Ontario, and Wisconsin.  Yesterday, both the attorney general of Illinois and the U.S. Solicitor General filed responses asking the Court to dismiss the action.  Lyle of this blog explains the nature of the dispute and summarizes the federal government’s position, and the Associated Press (via BusinessWeek) offers further coverage.  The Associated Press (via the Chicago Tribune) also has a short piece on Illinois’s filing.  The L.A. Times highlights the responses—also filed at the Court yesterday—by three other defendants in the suit (the Illinois Department of Natural Resources, the Metropolitan Water Reclamation District, and the Army Corps of Engineers).  Those filings question the science behind Michigan’s request.  In addition, the Chicago Tribune has an editorial on the case, arguing that “Michigan and the other states are in full panic attack.  Let's hope the Supreme Court doesn't buy into the hysteria.” A split Ninth Circuit decision that invalidated a Washington law banning incarcerated felons from voting drew much attention yesterday and prompted predictions that it would be reheard en banc or by the Supreme Court.  The Associated Press (via the Washington Post) reports on the decision and reactions to it.  The Seattle Times confirms that the State of Washington will appeal the ruling.  If the case doesn’t go en banc at the Ninth Circuit, Kent Scheidegger of Crime & Consequences says it will be a “slam-dunk for Supreme Court review.”  Doug Berman at Sentencing Law and Policy agrees, adding that “[a]mong interesting story lines to watch as this case goes forward is whether and how the Solicitor General of the United States might get involved.”