FIRST ONE @ ONE FIRST

OT2010 Circus Watch

Posted in Anticipation by Mike Sacks on March 8, 2010

The Court today granted certiorari in Snyder v. Phelps, et al. Here’s Lyle Denniston from SCOTUSBlog:

The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. [...]

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting.

If Lyle’s description and the name “Phelps” didn’t already set off your mental bells, let me put the question before the Court another way–with illustrative hyperlinks: is this speech by this preacher‘s congregation protected under the First Amendment?

In other words, I may have to dust off F1@1F next term for a special encore report from this case’s line.

UPDATE: Back in 2006, Molly McDonough of the ABA Journal–she’s now my overseer over there–wrote about the constitutionality of the state and federal laws enacted to keep Phelps’s folk away from soldiers’ funerals.  Next term’s case is based on a common law tort’s damage award, not on any statutory command, but McDonough’s story is still well-worth revisiting.

SCOTUSReligion

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 8, 2010

Bob Barnes at the Washington Post has a column today that discusses whether the days of the Court’s religiously-reserved seats are over:

Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?

If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.

Turns out I’ve violated dinner conversation etiquette several times since I started F1@1F in December.

As I stated on F1@1F’s first day, I believe Obama will nominate Judge Diane Wood to preserve what has now become “the W.A.S.P. seat” when Stevens retires.   For this reason (though not only this reason) I disagree with Tom Goldstein’s prediction at SCOTUSBlog that Solicitor General Elena Kagan will be Stevens’s successor.

In fact, Kagan may have time yet before she gets her much-expected nomination to the bench.  I think Justice Ginsburg’s successor will be a person of color from a yet-to-be represented ethnic group.  Only when Justice Breyer retires will the President seek to preserve the Jewish seat.

By then, however, Kagan’s window may be closed by age or the President’s party affiliation.  And no amount of goodwill Kagan built up among the conservative legal professoriate during her Harvard Law deanship will compel a GOP President to nominate her.

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