Just got an e-mail that the Citizens United campaign finance case just came down. The e-mail says - "It's bad." No details other than "Reversed in part, affirmed in part and remanded." Kennedy wrote the opinion.

The opinion (PDF).

Upshot - Tom Goldstein of SCOTUS BLOG - "The Court's decision overturns the previously settled distinction between corporate and individual expenditures in American elections."

The American Needle v. NFL Supreme Court argument transcript is available here (PDF). I have not read it. when I do I'll provide some comment. I discuss the case in a previous post.

Pains me to say it, but it seemed to me Justice Scalia had the best grasp of the issues in the case. Based on his questions, I see him as rejecting the NFL's argument.

Speaking for me only

How can a law allow the feds to continue to imprison an inmate after his sentence is up? That's what sex offender civil commitment laws allow. The Supreme Court held oral arguments today on a challenge to Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006.

The law applies to any federal detainee, including inmates who are about to complete their entire prison terms and regardless of whether the suspected future act is a federal crime....Lawyers are challenging the law as a violation of due process. In addition, they argue that Congress exceeded the limits of its federal authority by attempting to prevent sex crimes.

...The key question before the high court is whether congressional authority to enact legislation is broad enough to encompass prevention of future sex crimes.

[More...]

Update: AP news article here. This just in (via e-mail, no link, from the folks at Protect Marriage, who moved to block the video streaming):

Just minutes ago, U.S. Supreme Court Associate Justice Anthony Kennedy stayed the order of Judge Vaughn Walker that would have allowed for streaming video in the case challenging Proposition 8, Perry v Schwarzenegger. Walker previously had agreed to provide a video stream of the trial on a daily basis through YouTube. The Perry case would have been the first trial ever in the Ninth Circuit where cameras had been allowed in the courtroom. ProtectMarriage.com vigorously fought Walker’s order by appealing to the Ninth Circuit Court of Appeals and then filing an emergency appeal with Justice Kennedy.

The stay order is in effect until Wednesday, January 13th at 4:00pm eastern time to permit the Supreme Court time for further consideration. The full text of the order is below: [More...]

The Supreme Court will hear oral argument at 11:30 a.m. Monday on Briscoe, et al., v. Virginia (07-11191). This is unusual, in that the Court is going to hear the same arguments it ruled on last June in Melendez-Diaz v. Massachusetts (opinion here.)

In June, the court ruled for the defense, which had objected to the state's reliance on an affidavit to prove a substance was cocaine. The defense said it was entitled to the live testimony of the chemist so it could cross-examine him or her. The Court agreed with the defense that live testimony was required under the Sixth Amendment's right to confront witnesses.

Scotus blog says since the ruling, 26 states and the District of Columbia have urged that the decision be overruled, hence, arguments tomorrow at which the Court may also decide to limit the right.

It's an important right, and I tell a story here about how having that right changed the outcome in one of my cocaine cases many years ago.

Kevin Drum discusses this LATimes article on the American Needle v. NFL antitrust case, scheduled to be argued before the Supreme Court on January 13, 2010. There are interesting antitrust issues involved in the case, but I think there are two broader aspects of the case that are particularly of note. First, for those who doubt a momentous battle between the NFL and the NFL Players Association is in the offing when their collective bargaining agreement expires, this case should disabuse them of this notion. If the NFL is declared a single entity for antitrust law purposes, it will likely take very aggressive positions in bargaining with the NFLPA. And the NFLPA may have to up the ante by going on strike. Yep, no NFL football in 2011 seems a very real possibility. More . . .

At 6:00 p.m. last night, Chief Justice John Roberts released the 2009 Report on the Federal Judiciary. The number of criminal cases filed reached its highest level since 1932:

Criminal case filings (including transfers) rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003. The number of criminal cases reached its highest level since 1932, the year before ratification of the Twenty-first Amendment, which repealed prohibition. In that year, 92,174 criminal cases were filed.

The number of marijuana cases increased while the number of other drug, firearms and explosives cases declined. Immigration cases increased big-time: [More...]

Alabama Senator Jeff Sessions says he will filibuster the nomination of Indiana federal judge David Phillips to the 7th Circuit Court of Appeals.

Sessions conceded that he probably lacks the votes necessary to ultimately prevent a final vote on Hamilton's confirmation....Decrying Hamilton's "steadfast resistance" to informed consent abortion laws and other positions that the Obama nominee has taken on the bench goes beyond the norm, Sessions argues.

A vote could take place tomorrow. Democrats likely have the votes necessary to confirm Phillips.(Even Sen. Dick Lugar (R-Ind.) will vote for Phillips.)

Roll Call reports Obama is ready to step up the pace of judicial nominations.

In the midst of economic contraction unseen since the Great Depression, it is unsurprising that the economic developments plans of the City of New London now lay in ruins. Opponents of a government that is accountable to voters are rejoicing in this opportunity to again criticize the Supreme Court's decision in Kelo. Here is the WSJ Editorial Page:

The Supreme Court's 2005 decision in Kelo v. City of New London stands as one of the worst in recent years, handing local governments carte blanche to seize private property in the name of economic development. Now, four years after that decision gave Susette Kelo's land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.'s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut.

The aftermath of Kelo is the latest example of the futility of using eminent domain as corporate welfare. [. . .] That's especially galling because the five Supreme Court Justices cited the development plan as a major factor in rationalizing their Kelo decision. Justice Anthony Kennedy called the plan "comprehensive," while Justice John Paul Stevens insisted that "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." So much for that.

(Emphasis supplied.) The demand for judicial activism by "unelected judges" to overturn the governing decisions of local ELECTED officials is, of course, ironic and hypocritical. But more importantly, it is bad Constitutional law. Let's revisit what the Kelo decision held:

Monday, the Supreme Court, with newly appointed Justice Sonia Sotomayor, begins its new term. Among the cases of interest:

• Whether police may reinterrogate a continuously imprisoned suspect about an offense for which he invoked his right to counsel three years earlier
• The applicability of Second Amendment gun rights to state and local governments
• Whether the Eighth Amendment's ban on cruel and unusual punishment bars Florida from imprisoning juveniles for the rest of their lives without any possibility for parole.
• The validity of 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.
• Whether Congress has the power to ban possession and distribution of images of animal cruelty, such as pit bull fights.

[More...]

Associate Justice Sonia Sotomayor cleverly asks whether conservatives really are judicial minimalists (recording of the argument in Citizens United here, transcript here (pdf):

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment. That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

(Emphasis supplied.) A basic tenet of Supreme Court jurisprudence is constitutional avoidance (link to Conservapedia.) Do not decide the constitutional question unless you have to. Those opposed to "judicial activism," as conservatives purport to be, would want Citizens United decided on narrow statutory grounds, rather than on sweeping constitutional grounds. But the extreme right wing Roberts Gang of 5 plow forth with their judicially activist right wing agenda. And so would extreme Republicans like Mitch McConnell, who hired Floyd Abrams to argue for judicial activism on his behalf:

When appointing judges, so many Governors appoint prosecutors. Very few appoint criminal defense lawyers.

So, props today to California Governor Arnold Schwarzenegger for appointing Jim Collins, a well-known, well-respected, career criminal defense lawyer (and a Democrat) to the San Francisco Superior Court. He's an excellent choice.