FIRST ONE @ ONE FIRST

…But maybe Citizens United Tomorrow?

Posted in Anticipation by Mike Sacks on January 20, 2010

From SCOTUSBlog: “The Court has announced that it expects to issue one or more opinions in argued cases on Thursday.”

The Supreme Court will hold a special public session on Thursday at 10 a.m., the Court announced at the close of this morning’s oral arguments.  Although no purpose for the sitting was specified, no arguments are scheduled, so it almost certainly will be to release opinions — perhaps the long-awaited ruling on campaign finance regulation. Such sessions are highly unusual, but so is the campaign finance case, involving a major constitutional controversy.

If the Court is planning to issue the ruling in Citizens United v. Federal Election Commission (08-205), it presumably will be doing so to make some gesture to satisfy Congress’s mandate that cases testing the constitutionality of campaign finance laws are to be given expedited treatment.

On the one day I have a morning class…gah!

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No Citizens United Today…

Posted in Case Reports by Mike Sacks on January 20, 2010

…but Justice Sotomayor did pen her second majority opinion in Wood v. Allen.

Also, in South Carolina v. North Carolina, the Court came down unanimously in the result, but had a heartwarmingly mishmashed 5-4 split on the reasoning, with Chief Justice Roberts dissenting in part for himself and Justices Thomas, Ginsburg, and Sotomayor.

The final decision of the day was Kucana v. Holder.  Justice Ginsburg wrote for the Court with Justice Alito concurring in the result.

Thank you, SCOTUS, for giving me the time to prepare for class today!

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UPDATE: Professor Jerry Goldman, director/curator/mastermind of the indispensable Oyez Project writes in to give a more accurate and authoritative take on SC v. NC:

My reading of this exception differs from yours. Roberts dissents from the report of the special master on a key point regarding who can intervene. And while he concurs in the judgment regarding two of the intervenors, he is fundamentally opposed to the nonstate party intervention. Seems to read like a dissent, not a concurrence. So for me, this one tilts 5-4.

Chief Justice Roberts’s opening and closing comments in his separate opinion do, indeed, read more like a dissent than a concurrence:

The Court correctly rejects the Special Master’s formulation of a new test for intervention in original actions, and correctly denies the city of Charlotte leave to inter- vene. The majority goes on, however, to misapply our established test in granting intervention to Duke Energy Carolinas, LLC (Duke Energy), and the Catawba River Water Supply Project (CRWSP).
The result is literally unprecedented: Even though equitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests. Given the importance of maintaining the proper limits on that jurisdiction, I respectfully dissent. [...]
Our original jurisdiction over actions between States is concerned with disputes so serious that they would be grounds for war if the States were truly sovereign….A dispute between States over rights to water fits that bill; a squabble among private entities within a State over how to divvy up that State’s share does not. A judgment in an equitable apportionment action binds the States; it is not binding with respect to particular uses asserted by private entities. Allowing intervention by such entities would vastly complicate and delay already complicated and lengthy actions. And the benefits private entities might bring can be read- ily secured, as has typically been done, by their participation as amici curiae.
In light of all this, it is difficult to understand why the Court grants nonsovereign entities leave to intervene in this equitable apportionment action, and easy to under- stand why the Court has never before done so in such a case.
I would grant South Carolina’s exceptions, and deny the motions to intervene.

Conservative Convergence = Liberal Freakout, Cont’d

Posted in Anticipation, Clairvoyance by Mike Sacks on January 20, 2010

Lyle Denniston at SCOTUSBlog writes about how Brown’s election may indeed rattle the Executive Branch if Justice Stevens retires:

[W]hile most legislative observers will be watching for signs of trouble for health care reform and energy legislation, the processing of nominees to the federal courts will be another arena of likely difficulty.

And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur.  If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans.  That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing.  It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

With President Obama still having three years to go in his term, Republicans who might be bent on obstructing any Court nominees would probably not be able to hold out long enough to prevent a centrist nominee for the Court from finally getting through.   But a nominee with an identifiable liberal record may well be doomed (assuming that the White House has any lingering interest in that type of choice).

Per Lyle’s forecast, however, Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

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