Gavel Grab

Archive for June, 2010

Gun Rights Expansion Triggers Debate

The Supreme Court’s ruling this week expanding gun rights (see Gavel Grab) has sparked sharply divided editorial opinion and forecasts of a flood of lawsuits to challenge gun-control rules in numerous states and cities.

Given this likely wave of litigation, “it could take years before the practical impact of the ruling is clear,” a Wall Street Journal article suggested. The article gives this summary of the Supreme Court ruling:

“The ruling requires states to respect a federal right under the Second Amendment to keep and bear arms, but it doesn’t say specifically how broadly the right extends. That means existing regulations must be weighed by federal judges who will have to interpret the Supreme Court’s vague language.” Read more

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Day 3: Kagan Sidesteps Criticizing Court

As her third day of testimony neared an end, Supreme Court nominee Elena Kagan sidestepped opportunities to criticize the current court and cautiously fielded questions about likening a justice to an umpire.

Democratic senators on the Senate Judiciary Committee “opened a broad attack” on the  court under Chief Justice John Roberts Jr. and challenged its “motives and legal integrity,” according to a Wall Street Journal article.

Rather than follow tradition by generally ruling on cases unanimously or with strong majorities, the Roberts Court overturns precedent regularly, voting 5-4 with a majority made up of Republican-picked justices, Sen. Sheldon Whitehouse, D-R.I., told Kagan. Some judges may have a mission and “are selectively knocking out precedent that does not coincide with their ideological views,” Whitehouse said.

The U.S. solicitor general and former Harvard Law School dean did not signal agreement.

“I’m sure everybody up there is acting in good faith,” the Washington Post quoted Kagan as saying. “You wouldn’t want the judicial process to become in any way a bargaining process or a log-rolling process.”

She also told Whitehouse, “Every judge has to do what he or she thinks the law requires,” according to a USA Today article.  “But on the other hand,” she said, “there’s no question that the court is served best and our country is served best when people trust the court as an entirely non-political body.” Read more

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Justice Kennedy Seen as 'Court's True Compass'

A  series of end-of-term snapshots of the Supreme Court offers insight and analysis.

Justice Anthony Kennedy (photo at right) is described as “the court’s true compass” in a Wall Street Journal article. The landmark Citizens United ruling “stands at the head of a series of 5-4 decisions that was resolved by the 73-year-old justice appointed by President Ronald Reagan in 1988,” the article says, and it adds:

“And while conservatives have made strides in their decades-long campaign to seize the bench from moderates and liberals who had dominated since the 1930s, Justice Kennedy still sometimes upsets their plans.”

A Washington Post article focuses on Chief Justice John Roberts Jr. and is headlined, “Roberts led Supreme Court through assertive term.” Read more

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WI Gay Marriage Ban Upheld

The Wisconsin Supreme Court unanimously rejected Wednesday a legal challenge to the state’s constitutional ban on gay marriage and civil unions.

In a 7-0 opinion, the high court agreed with a lower court ruling that the constitutional amendment was put properly before voters in a referendum in November 2006, according to an Associated Press article.

A lawsuit had contended that the referendum question improperly included two sections, one on gay marriage and one on civil unions, and that lawmakers had violated a rule limiting referendum questions to a single topic, the Milwaukee Journal Sentinel reported.

Both sentences “carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman,” Justice Michael Gableman wrote.

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Republican on Kagan: 'Dancing,' and 'Tough as Nails'

Americans are getting a more multidimensional impression of Elena Kagan as the 50-year-old Supreme Court nominee forges her way through hour after hour of nationally telecast and webcast Senate Judiciary Committee hearings.

The U.S. solicitor general was “poised,” “combative,” “somewhat guarded,” and “quick to volley with her own comedic abilities” during a 9 a.m. to 7 p.m. day of testimony Tuesday, according to various news media reports.

The different sides of her personality, or perhaps performance, so far may have been well reflected in separate reactions by Sen. Tom Coburn. He is an Oklahoma Republican and one of the panel’s most conservative members.

Coburn told a New York Times interviewer about Kagan and her posture on giving opinions, “She’s doing exactly what she criticized other nominees for doing. She’s dancing.” At another point, Coburn told Kagan during Tuesday’s hearing that she was smart and “tough as nails,” according to a Washington Post article.

A centerpiece of Kagan’s testimony Tuesday was her intense questioning by Sen. Jeff Sessions, an Alabama Republican, over the limits she set on military recruitment as dean of Harvard Law School (see earlier Gavel Grab post). While standing up for her actions, she “came under blistering attack” from Sessions, the Boston Globe reported.

Kagan testified she would keep her political views out of judging. The former Clinton White House aide also said of her own thinking, “my political views are generally progressive,” according to a McClatchy Newspapers article. Read more

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'The Roberts Court,' More than Ever

Only one day after the Supreme Court’s final sitting of its term, veteran court observers are analyzing the year.

In a New York Times article, reporter Adam Liptak writes that in the past year, the court’s profile under Chief Justice John Roberts Jr. has changed fundamentally: “Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.”

The article is entitled, “Roberts Put his Stamp on Supreme Court in Latest Term.” The evidence it offers to support the headline?

Liptak asserts, “Chief Justice Roberts, who joined the court five years ago, took control of it this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues, including some liberals, on an array of other issues.”

Or, as Gregory Garre, who was a solicitor general under President George W. Bush, put it, “More than in any other year since he became chief justice, this has truly become the Roberts court.”

A separate and comprehensive analysis is offered by Tom Goldstein, SCOTUSblog founder, at that blog’s site. It is  has a more humorous title: “Everything you read about the Supreme Court is wrong/Except here, maybe.”

Goldstein seems to delight in challenging conventional wisdom. Examining the court’s rulings case-by-case, he contends that “it is inaccurate to describe the Court as methodically on the march to the right,” and “the liberal critique of the Court as grossly pro-corporate…does not hold water.”

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Kagan: 'We Had Strong Case' on Citizens United

Solicitor General Elena Kagan backed away today from her earlier advocacy of more candid and specific discussion by Supreme Court nominees on their constitutional views. But she did offer some thoughts on the landmark Citizens United case.

In the second day of her confirmation hearings, Kagan was asked by Sen. Patrick Leahy, the Senate Judiciary Committee chairman, about the case. A day earlier, Democrats had derided the ruling as “conservative judicial activism.”

The 5-4 court majority struck down key restraints on corporate political spending. Kagan, who had argued the Obama administration’s case in defense of the limits, told Leahy that in preparing for the oral arguments, she had convinced herself of the correctness of the position she had taken, according to a New York Times article.

“I did believe that we had a strong case,” a CBS News blog quoted her as testifying.

Generally, however, Kagan said it would not be appropriate for her to say how she might side on pending cases, or potential future cases, or even discuss past cases by grading high court precedents, saying those issues “might again come before the court.”

Overall, Kagan resisted efforts by Republican senators to depict her as a liberal activist and refused to accept the label of “legal progressive,” McClatchy Newspapers reported. Read more

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'Soft Money' Ban Affirmed by Supreme Court

The Supreme Court has affirmed, with no comment, a lower court ruling that upheld a ban on unlimited contributions to political parties, called “soft money.”

The high court issued its order Tuesday, refusing a request by the Republican National Committee to consider ending the ban on unlimited donations by corporations, unions and others to national party committees, according to an Associated Press article.

A three-judge panel of the Federal District Court for the District of Columbia found the ban constitutional in March. But the panel voiced reservations about squaring this part of the 2002 congressional rewrite of federal campaign finance law, called McCain-Feingold, with the Supreme Court’s Citizens United decision this year, a New York Times blog reported.

Richard Hasen, a law professor, wrote in his Election Law Blog that the challenge before the Supreme Court amounted to a “very weak case for overturning the ban” and that the Tuesday order “is only temporary good news for those who think the soft money ban is an important anticorruption component of federal campaign finance law.”

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New Statement Explains Judge's Exxon Stock Sale

Federal District Judge Martin Feldman of Louisiana now says that he learned he had Exxon Mobil stock several hours after he heard a case involving the Obama administration’s recent deepwater drilling moratorium, according to an Associated Press article.

Judge Feldman, who blocked the moratorium, stated earlier (see Gavel Grab) he sold those shares less than five hours before making his ruling on Tuesday, June 22.

A statement released by the judge’s chambers has elaborated on the sequence of events, saying he learned of the holdings on Monday, June 21, the Wall Street Journal reported.

“Because he remembered that Exxon, who was not a party litigant in the moratorium case, nevertheless had one of the 33 rigs in the Gulf, the judge instructed his broker to sell Exxon and XTO [Energy Inc.] as soon as the market opened the next morning,” the statement said.

Some questions have been raised in news reports and the blogosphere over whether Judge Feldman should have recused himself. Read more

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Petition-Privacy Ruling 'More of a Beginning'?

When the Supreme Court handed down a major First Amendment decision recently, the lopsided 8-1 ruling was deceptive, according to a Washington Post analysis.

In the case from Washington state, the Supreme Court ruled that not all signers of  petitions seeking a public vote on a hot policy issue can expect to keep their identities anonymous (see Gavel Grab).

Reporter Robert Barnes pored over the majority opinion and six individual signed opinions and further explained the outcome:

“[T]he decision could be more of a beginning than an end. That’s because the other way to look at the decision is that a majority of the court decided that signing one’s name to a petition also is a form of political expression that, in some cases, warrants First Amendment protection.

“The decision could carve out a much more active role for the judiciary in determining in certain instances whether disclosing names brings a reasonable probability of  ‘threats, harassment or reprisals’ from government officials or from other members of the public.”

The court handed a defeat to gay marriage foes who had fought to  keep secret the names of people who signed a ballot petition seeking repeal of Washington state’s domestic partnership law. The Supreme Court did not draw the case to a conclusion, however. Its decision said the petition signers have a right to persuade a lower court that disclosing their names would make them subject to harassment.

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