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Supreme Court 2009-2010 Term

Old 10-05-09, 09:26 AM
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Supreme Court 2009-2010 Term

It's the First Monday in October, which means a new Supreme Court term begins. This term should be much more exciting than last year's. You have more hot-button issues on tap (religion/establishment, guns, free speech, sports antitrust, Miranda rights, executive compensation, cruel/unusual punishment), a new Justice, and and there should be rampant speculation on whether Stevens will be retiring (while there is a filibuster-proof majority in the Senate).

Here a couple articles on the some of the more notable cases on tap:


http://www.time.com/time/printout/0,...927760,00.html

Monday, Oct. 05, 2009
Five Supreme Court Cases to Watch This Term
By Dan Fletcher

The U.S. Supreme Court reconvenes for its 2009-10 term on Oct. 5, with most of the attention going to the court's freshest face, newly confirmed Justice Sonia Sotomayor. But Sotomayor and her eight colleagues won't have a lot of time for orientation: the court will start immediately on a docket of controversial cases that will call on Justices to consider new facets of the Establishment Clause, gun ownership and prison terms for minors, among other issues. In total, the Justices have already agreed to hear 55 cases in the new term. Here are five to keep an eye on.

Salazar v. Buono
At issue: Whether the government can permit the display of a crucifix on public land as per the Establishment Clause.

An 8-ft.-tall crucifix has stood on an outcrop called Sunrise Rock on the Mojave National Preserve since 1934, but in one of the court's earliest arguments of the term, the Justices will be asked to consider whether it should be removed. The battle has been brewing for a while — the cross, erected without government approval, was slated for removal by the U.S. National Park Service after a request from Buddhists to create their own memorial near the site was denied. But in 2000, Congress hastily passed a law prohibiting the use of public funds to remove the cross, in essence tying the National Park Service's hands. Congress declared the cross a National Memorial in 2002, and in 2003 it gave the small parcel of land to the Veterans of Foreign Wars (VFW) — the group that constructed the original cross. (See TIME's photo-essay "Sonia Sotomayor, the Making of a Judge.")

The removal of the cross brings up the Establishment Clause, that long-debated line separating church and state that takes its name from the First Amendment (which begins, "Congress shall make no law respecting an establishment of religion"). This case has been in the court system since early 2000, before Congress's involvement. The National Park Service's attempt to transfer the land to the VFW, per the 2003 congressional order, has been viewed by the lower courts as an illegal way of circumventing repeated rulings compelling it to remove the cross. (Once the land is considered private property, the Establishment Clause no longer applies.) The Supreme Court will be asked to sort out the issue — and ownership of Sunrise Rock — once and for all.


Maryland v. Shatzer
At issue: The scope of the rights of police suspects, as given in the court's landmark 1966 decision, Miranda v. Arizona.

In Maryland v. Shatzer, Michael Shatzer was questioned by police about sexual abuse of his 3-year-old child, and after being told he had the right to counsel as part of his Miranda rights, declined to answer any questions without an attorney present. The officer never pursued Shatzer further, but nearly three years later, a different detective questioned Shatzer, at which point he admitted abuse. Shatzer now argues this confession is inadmissible because the second police officer, who was unaware of Shatzer's original Miranda request, questioned him without an attorney present. (Read "Four Enduring Myths About Supreme Court Nominees.")

The court has already considered a similar case in 1981's Edwards v. Arizona, in which the court found admissions made by a suspect without the presence of an attorney, which he had requested, inadmissible. But in Edwards, these admissions were made only a day after the suspect had been given his rights — not nearly three years later. The court will be asked to decide whether to treat their decision in Edwards as a so-called "bright-line" rule — that is, one that would create an absolute standard of police conduct in regard to the Miranda rights, regardless of how much time has passed.


Graham v. Florida / Sullivan v. Florida
At issue: Whether life imprisonment for juveniles on nonhomicide charges constitutes cruel and unusual punishment.

The Eighth Amendment precludes cruel and unusual punishment, but it has long been left to the Supreme Court to define exactly what that term means. This court will be asked to consider it again in a pair of cases on the docket. In Sullivan, the petitioner was 13 years old when he was indicted as an adult and sentenced to life in prison without parole in Florida for sexual assault of an elderly woman. In Graham, a 19-year-old violated his parole by committing attempted armed robbery while on parole for two previous robbery attempts he had committed while he was a minor. He too was subsequently sentenced to life in prison without the possibility of parole.

In making their decision, the court will review its logic in 2005's Roper v. Simmons, which held that individuals could not be sentenced to death for crimes committed under the age of 18, as the court found that minors had a "lack of maturity." The petitioners in Graham and Sullivan are arguing for a similar standard for their noncapital offenses.


National Rifle Association v. Chicago / McDonald v. Chicago
At issue: Second Amendment rights to gun ownership.

A pair of cases challenge Chicago's 27-year-old ban on handgun sales within the city limits. Originally designed to curb violence in the city, the ban has long irked Second Amendment advocates, who take an expansive view of the amendment's wording that the "right of the people to keep and bear arms shall not be infringed." But the Supreme Court had long held that the Second Amendment pertained only to federal laws, until a 2008 decision in District of Columbia v. Heller struck down a ban on handguns and automatic weapons in Washington, D.C. The ruling marked the first time the Supreme Court acknowledged an individual right to bear arms, and it opened the door for these challenges to the Chicago regulation.


American Needle v. National Football League
At issue: Whether sporting leagues should be exempt from antitrust regulations.

Experts say American Needle may turn out to be the most important legal decision in sporting history. The sportswear manufacturer contracted with NFL teams to produce hats and headgear with official team logos. But the NFL decided to give an exclusive leaguewide license to Reebok in 2000, leading American Needle to sue, claiming the NFL's action violated the Sherman Antitrust Act by limiting the market for who could produce team-branded merchandise.

The fundamental question for the court to decide is whether the NFL should be considered a single entity or a collection of 32 individual businesses. The answer to this question has repercussions beyond the production of licensed merchandise. If the NFL is considered a single entity, it would largely be exempt from antitrust laws, giving the league not only continued right to grant exclusive licenses for team apparel but also the ability to make decisions on a leaguewide basis. This opens the door to the NFL — rather than individual teams — determining things like ticket prices and player salaries. Indeed, the bargaining power of the NFL Players Union is based on antitrust legislation that the league would largely be immune to if it receives a favorable ruling from the Supreme Court. Other sporting leagues are watching the American Needle case closely; many have filed briefs in favor of the NFL's position.

http://www.csmonitor.com/2009/1004/p02s01-usju.html

Questions surround start of new Supreme Court term

How will Sonia Sotomayor vote? Is John Paul Stevens soon to retire? Will John Roberts and Samuel Alito be more unabashedly conservative? The term begins Monday.

By Warren Richey | Staff writer of The Christian Science Monitor
from the October 4, 2009 edition

The coming year offers an opportunity for court watchers to more clearly define the character of the emerging Roberts Court during Chief Justice John Roberts's fifth term on the bench. And it presents a chance far superior to the wishy-washy Senate confirmation hearings to finally learn something of the real Sonia Sotomayor, the high court's newest justice.

Will she be a liberal stalwart or a sometimes ally to the conservatives? If so, in which cases?

The term already includes potential blockbuster cases examining the applicability of Second Amendment gun rights to state and local governments, campaign-finance regulations, life sentences for juveniles, and whether Congress violated the separation of powers when it created an independent accounting oversight board.

The court's options will reveal more than just legal winners and losers. How these disputes are analyzed and decided by the justices will offer legal scholars important clues about the evolving dynamics within the nation's highest court.

In addition to the arrival of a new justice, Justice John Paul Stevens's decision to hire only one law clerk (instead of the usual four) for the 2010-11 term has sparked speculation that he intends to leave the court in June.

Among key trends to watch will be whether Chief Justice Roberts and Justice Samuel Alito decide to put an unabashedly conservative stamp on the high court by joining their conservative colleagues to boldly overturn liberal legal precedents despite earlier pledges of a preference for judicial minimalism.

The broad internal dynamics at the Supreme Court are well established, with four liberal justices and four conservative justices. In the middle, often wielding a tiebreaking fifth vote, is Justice Anthony Ken*nedy, who leans conservative but sometimes swings to the liberal side in big, high-profile cases.

The arrival of Justice Sotomayor is not expected to significantly change this internal dynamic. Analysts say she should fit comfortably into the liberal wing and is expected to vote in ways similar to David Souter, the justice she replaced.

But she is not Souter. That has some liberals worried and some conservatives hopeful. Early in her legal career, Sotomayor worked as a prosecutor in New York City and later as a federal trial judge. Thus she knows intimately the challenges facing law enforcement officials.

When the high court hears a major case this term on whether police must give precise Miranda warnings before interrogating suspects, court watchers will want to see which Sotomayor votes in the case. Will it be the Latina civil rights activist concerned with defendants' rights, or the former big-city prosecutor concerned with helping the system fight crime and protect victims?

Thomas Goldstein, a lawyer who has often argued before the Supreme Court, says the departure of Mr. Souter and potential retirement of Justice Stevens could result in the court being nudged to the right. This is because their liberal replacements may not command the same respect that allowed Stevens and Souter to sometimes persuade Justice Kennedy to swing to the left.

"When that relationship is broken and you introduce somebody new into the equation, they can't possibly be as persuasive," Mr. Goldstein said in a recent panel discussion at the Cato Institute. "I think the ironic effect of new appointments replacing Justices Stevens and Souter will be to see the court gravitate to the right."

On Roberts and Justice Alito, analysts are awaiting the court's decision in a potential landmark campaign-finance case heard during a special argument session Sept. 9.

At issue in Citizens United v. Federal Election Commission is whether corporations can be barred from spending their treasury money on politically related advertisements during federal election season. The FEC, citing a 2002 campaign-finance law, said yes. Citizens United, a conservative nonprofit advocacy group, said the move amounted to government censorship.

Roberts's and Alito's positions in the case are being scrutinized because the justices were confronted with a similar issue in 2006 and refused to join their conservative colleagues in overturning the underlying legal precedents. Now they are being encouraged to take that step again.

Any move to strike down a portion of Congress's 2002 campaign-finance law and an earlier 1990 Supreme Court precedent will be portrayed by liberal critics as a particularly aggressive assertion of power by the high court's conservative wing. And it could be a defining moment for the emerging Roberts Court.

But it won't mean the conservatives will win every big battle at the Supreme Court. With the general 4-to-4 conservative-liberal split on hot-button cases, Kennedy continues to hold the power to decide many of America's most contentious disputes.

One such case involves two Florida teens who are serving life sentences for crimes they committed as juveniles. At issue in Graham v. Florida and Sullivan v. Florida is whether the Eighth Amendment's ban on cruel and unusual punishment bars Florida from keeping the young men imprisoned for the rest of their lives without any possibility for parole. At age 13, Joe Sullivan raped and robbed a 72-year-old woman. Terrance Graham committed a series of armed robberies at ages 16 and 17.

Kennedy will probably be the deciding vote in the case. In 2005, he provided the key vote to declare the juvenile death penalty unconstitutional. The question in the case is whether the same reasoning applies in the circumstances of the two Florida teens.

Free speech is also on the court's radar this term. At issue in US v. Stevens is whether Congress has the power to ban possession and distribution of images of animal cruelty, such as pit bull fights. A Virginia man was charged under a 1999 federal statute for including footage of a dogfight in Japan (where such fights are legal) in a documentary film he produced and distributed in the US. The central question is whether the First Amendment protects such depictions.

In another Florida case, the justices have agreed to examine a property rights dispute in which owners of seafront property complain that the state used a beach renourishment program to strip them of their legal rights as waterfront property owners.

Under the Flor*ida plan, sand was pumped onto the beach and the state claimed the new dry land for itself. Private waterfront property suddenly became landlocked.

A state appeals court ruled that the owners were due just compensation from the state, but Florida's Supreme Court upheld the state action.

In US v. Comstock, the court will examine a federal law that allows the government to hold alleged sexual predators indefinitely in protective custody once they are deemed to be "sexually dangerous," even after they have served a full criminal sentence.

One of the key things to look for is how Sotomayor votes in cases such as Shatzer, Graham, Sullivan, and Comstock. I'm of the opinion that she will join Alito and Roberts on some of these criminal law/procedure cases.

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Old 10-05-09, 11:04 AM
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Re: Supreme Court 2009-2010 Term

And three of the more notable cases start right off the bat. Oral arguments for....

Maryland v. Shatzer (08-680) — limits on police questioning after a suspect asks for a lawyer

United States v. Stevens (08-769) — government power to criminalize videos and other depictions of animal cruelty

Salazar v. Buono (08-472) — right to sue to challenge a religious symbol on public lands

.....take place this week.
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Old 10-05-09, 11:35 AM
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Re: Supreme Court 2009-2010 Term

One of the key things to look for is how Sotomayor votes in cases such as Shatzer, Graham, Sullivan, and Comstock. I'm of the opinion that she will join Alito and Roberts on some of these criminal law/procedure cases.
And if she doesn't, will you admit that my contention that she's just another Ginsburg clone is correct?
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Old 10-05-09, 11:37 AM
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Re: Supreme Court 2009-2010 Term

Originally Posted by classicman2 View Post
And if she doesn't, will you admit that my contention that she's just another Ginsburg clone is correct?
No. Because except for not having a Y chromosome, she's more Souter than Ginsburg.
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Old 10-05-09, 11:39 AM
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Re: Supreme Court 2009-2010 Term

What was the big difference between Souter and Ginsburg - except gender & the vote on the Florida recount?
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Old 10-05-09, 11:47 AM
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Re: Supreme Court 2009-2010 Term

Notable cases/issues where cert was denied (no SCt review):

- The Florida Pledge of Allegiance law which required recitation in public schools unless students had written permission from their parents excusing them. The 11th Circuit upheld most of the law. Haven't read that case, but I have a hard time imagining how that is consistent with Barnette (1943), where the SCt ruled that school children could not be forced to recite the Pledge as a part of their school day routine.

- A pro-life group trying to force the state of Illinois to issue "Choose Life" license plates. The 7th Circuit ruled that state officials were within their rights in trying to keep viewpoints on abortion off of Illinois license plates.
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Old 10-05-09, 11:50 AM
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Re: Supreme Court 2009-2010 Term

Originally Posted by classicman2 View Post
What was the big difference between Souter and Ginsburg - except gender & the vote on the Florida recount?
I think Ginsburg is a far more gifted writer and persuader on the Court. Souter opinions are about as blah as one can get. Otherwise, there's not a lot of difference from a philosophical standpoint - Souter was a bit to the right of Ginsburg overall.
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Old 10-05-09, 11:58 AM
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Re: Supreme Court 2009-2010 Term

First time for everything. I agree with classicman2. There simply is not a large difference in terms of ideology for Souter and Ginsburg. Below are a couple of spatial models I did for a Supreme Court Preview lecture for my University. As you can see, Souter and Ginsburg were extremely close.

Spoiler:


And for those interested. This is what the upcoming terms ideological distribution should look like based upon Sotomayor's ideological score from the CoA. (My own two cents is she will drift further left, though if her previous voting in criminal cases is accurate, than she may well be located correctly.)

Spoiler:
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Old 10-05-09, 12:03 PM
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Re: Supreme Court 2009-2010 Term

Based on what you say and your graphs, it sure looks like you agree with me.
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Old 10-05-09, 12:09 PM
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Re: Supreme Court 2009-2010 Term

Well, saying that Sotomayor is more Souter than Ginsburg is incorrect. Ideologically, she is more Kennedy than Souter.
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Old 10-05-09, 12:15 PM
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Re: Supreme Court 2009-2010 Term

Originally Posted by Decadance View Post
Well, saying that Sotomayor is more Souter than Ginsburg is incorrect. Ideologically, she is more Kennedy than Souter.
I don't follow that based on your graphs. Your graphs put her in the same 'spot' previously occupied by Souter (4th, left-to-right). (Although I don't agree with that - I would put Breyer 4th while Souter would have been 3rd.). Your graph has the difference between Sotomayor and Souter being .113 while the difference between Sotomayor and Kennedy is .276, so how is she more Kennedy than Souter?

I also don't follow where your agreement with classicman is.

Plus I already noted that I expect her to be somewhat to the right of Souter, based on law & order considerations. You graph certainly suggests that too.

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Old 10-05-09, 12:35 PM
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Re: Supreme Court 2009-2010 Term

Originally Posted by Red Dog View Post
No. Because except for not having a Y chromosome, she's more Souter than Ginsburg.
She is more "Souter" in the direct sense, but this implies that there was a difference between Souter and Ginsburg, which I claim does no exist.

The reason why I argue she is more Kennedy than Souter or Ginsburg is because it is perceived that she will reside outside of the two consistently united voting blocs. This is debatable, but it is a gut call.

And yes, I do agree with you that criminal issues may pull her right.

I personally think the most interesting vote for her will be in American Needle (which I think is a completely fascinating case regarding the Copperweld Doctrine and the "single entity" defense).
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Old 10-05-09, 01:26 PM
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Re: Supreme Court 2009-2010 Term

Originally Posted by Decadance View Post
The reason why I argue she is more Kennedy than Souter or Ginsburg is because it is perceived that she will reside outside of the two consistently united voting blocs. This is debatable, but it is a gut call.

It seems to me that the general perception is that she will be regular part of the liberal bloc.

Now I disagree with that perception when it comes to one area (criminal procedure). Otherwise, she'll be a reliable member of the liberal bloc, at least on constitutional cases.
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Old 10-05-09, 02:18 PM
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Re: Supreme Court 2009-2010 Term

C-span is doing a week long special on the supreme court. It is on every day at 6 pm pst 9 est
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Old 10-06-09, 04:24 PM
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Re: Supreme Court 2009-2010 Term

I read that Justice O'Connor is apparently perturbed that some of her rulings are being dismantled. Gee I wonder why your rulings are getting dismantled, Justice Wishy-Washy.



Anyhoo, back to the current-day Court....here's a synopsis of oral arguments from U.S. v. Stevens:

http://www.scotusblog.com/wp/analysi...le/#more-11476

Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed. Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal. Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

The case of U.S. v. Stevens (08-769) tests the constitutionality of the 1999 law that made it a federal crime to make and sell commercially “any visual or auditory depiction” of killing or seriously abusing a living animal, if the conduct is illegal under either federal or a state’s law. The Justices, loosing a series of hypotheticals on what kind of conduct could not be depicted legally under the law – from bull-fighting to using geese to make foie gras, suggested that the statute likely would reach far beyond what Congress was actually seeking to ban.

Deputy U.S. Solicitor General Neal K. Katyal, asking the Court to reinstate the law that had been nullified by the Third Circuit Court, said Congress intended to shut down “a robust market” for so-called “crush videos,” images of small animals being stomped to death. It was, he said, a “narrowly targeted restriction.”

But he was only a few words into his opening when Justice Sonia Sotomayor questioned whether Congress had any evidence that there was “such a robust market” for videos of dog-fighting or even of hunting. Katyal countered by stressing anew that the law was limited in scope, did not apply to hunting, and was a challenge only to the commercial market. That simply prompted Justice Antonin Scalia to say that applying it only to a “commercial market” was not to limit it, since that would embrace “anything sold.”

From then on, Scalia continued to assail the sweep of the law, and other Justices joined in the challenge. Scalia was so relentless that, when Patricia A. Millett, the lawyer speaking against the law, seemed to be leaving some opening for Congress to pass laws in this area, the Justice gave her a mini-lecture on “it is not up to the government to decide what our worst instincts are.” Millett had the most difficulty fending off questions from Justice Alito about whether Congress could write a law that would ban a TV channel devoted to “human sacrifice.”

In contrast to Katyal’s argument (seemingly one that made no discernible headway with the Court) that the law was a strictly limited one, Millett suggested that it would apply so widely that courts simply could not salvage it by trying to spell out what it did not cover. “You would have to excise so many things, I don’t know what you would have left,” she said.

Katyal had been challenged rigorously throughout his argument, but Millett did not encounter any serious pressure, until Justice Alito opted to join actively in the questioning.

Alito suggested that the law may have accomplished, over its decade on the books, just what Congress had in mind: it had dried up the market for “crush videos,” while not causing a decrease in videos or TV shows about hunting. He told Millett she should be addressing “what’s going on in the real world,” and not focus on hypotheticals like producing foie gras with geese. She replied that, if Congress were to write laws in the First Amendment area, it had to “write with a scalpel and not with a buzz saw.”

But she seemed less sure of her argument when Alito moved on to questions about Congress’ authority, hypothetically, to try to stop human sacrifice by banning its depiction on videos and in other media. She at first said that such a law might be valid if it were “properly drawn” and “narrowly tailored.” As other members of the Court showed some interest in the human sacrifice hypothetical, Millett made further concessions even while not answering directly. First Justice Anthony M. Kennedy and then Chief Justice John G. Roberts, Jr., insisted on a direct response to Alito’s hypothetical. She answered that Congress could legislate in this area, unless it sought to ban the content of such depictions “just because it did not like it.”

A final decision in the case is not expected for at least several weeks.
I haven't seen the statute but when I first heard about this case, I wondered how general it was because I thought of similar hypotheticals. I wouldn't be surprised if it was struck down for vagueness.
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Old 10-06-09, 07:31 PM
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Re: Supreme Court 2009-2010 Term

What's the difference between this law and anti-child pornography or other anti-obscene material laws?
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Old 10-07-09, 08:37 AM
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Re: Supreme Court 2009-2010 Term

Keep in mind that the internet anti-child pornography laws keep getting struck down for vagueness.
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Old 10-07-09, 11:25 AM
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Re: Supreme Court 2009-2010 Term

As per usual, once we go past the Time article, I'm lost on the discussion.

However, the cases are indeed really interesting. $5 says Red Dog is going to pay the most attention to American Needle vs. National Football League.
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Old 10-07-09, 12:08 PM
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Re: Supreme Court 2009-2010 Term

Originally Posted by The Bus View Post
As per usual, once we go past the Time article, I'm lost on the discussion.

However, the cases are indeed really interesting. $5 says Red Dog is going to pay the most attention to American Needle vs. National Football League.
You owe me $5. Not to say that the NFL case isn't interesting, but antitrust law isn't something I pay much attention to.

The 2nd amendment incorporation case is definitely the most interesting to me simply because the incorporation doctrine has traditionally been championed by liberals who must decide how to handle for a right they abhor, while you have conservatives generallly inclined against incorporation deciding how to handle it for a right that conservatives champion. It's a classic conundrum.
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Old 10-07-09, 12:19 PM
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Re: Supreme Court 2009-2010 Term

Originally Posted by Red Dog View Post
You owe me $5. Not to say that the NFL case isn't interesting, but antitrust law isn't something I pay much attention to.

The 2nd amendment incorporation case is definitely the most interesting to me simply because the incorporation doctrine has traditionally been championed by liberals who must decide how to handle for a right they abhor, while you have conservatives generallly inclined against incorporation deciding how to handle it for a right that conservatives champion. It's a classic conundrum.
I think the incorporation case will be 8-1 in favor of incorporation, with Thomas the lone dissent. Or possibly, he'll vote in favor of P&I incorporation. I also think that the majority opinion will make it clear that reasonable restrictions on the right to bear arms are constitutional, but will punt on articulating any sort of standard of review for those restrictions beyond striking down an outright ban.
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Old 10-07-09, 12:25 PM
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Re: Supreme Court 2009-2010 Term

Originally Posted by JasonF View Post
I think the incorporation case will be 8-1 in favor of incorporation, with Thomas the lone dissent. Or possibly, he'll vote in favor of P&I incorporation.
I'd love to see that since I think P&I incorporation is the correct way to handle it. Of course, were he to do the right thing, he'll get labeled the wacko as usual.
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Old 10-07-09, 12:56 PM
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Re: Supreme Court 2009-2010 Term

Is there a practical difference between due process incorporation and P&I incorporation apart from the citizenship distinction? The academic in me thinks P&I incorporation is the more correct way to go in terms of the language of the Amendment and the legislative history. But the practical litigator (and citizen!) in me thinks that as long as the states can't infringe my First (or Second, or Fifth, or ... ) Amendment rights, I don't really care whether they overrule the Slaughterhouse Cases.
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Old 10-07-09, 01:28 PM
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Re: Supreme Court 2009-2010 Term

Ask one of your favorites....Justice Frankfurter.
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Old 10-07-09, 03:31 PM
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Re: Supreme Court 2009-2010 Term

It's been a while since I studied this stuff, but wasn't Justice Frankfurter opposed to incorporation outright, reading the 14th Amendment due process clause as simply protecting certain procedural rights. But the Court ultimately rejected his approach and read the 14th Amendment Due Process Clause as Justice Black argued -- as incorporating a broad array of federal rights against the states. So I don't see this as a debate between the Frankfurter and Black positions. The Frankfurter position is dead and burried. Rather, it's a debate between the Black view of incorporation and the minority (Justice Field) view from the Slaughter-House Cases. And while I think the Field approach is superior to the Black approach from a purely academic point of view, I'm not sure that I see them arriving at a different destination.
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Old 10-07-09, 03:35 PM
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Re: Supreme Court 2009-2010 Term

As I remember it, Frankfurter championed selective incremental incorporation.

I think the question would be if you switched the rationale to P&I incorporation, 1) how do you do that in a single opinion, and 2) what does that do for non-enumerated rights outside the specific ones in the Bill of Rights.

How does P&I incorporation address establishment clause jurisprudence on a state level? That's not really a P/I of a citizen. You can bet that if Thomas were to write a P&I opinion, it wouldn't include that.

Last edited by Red Dog; 10-07-09 at 03:43 PM.
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