Wow. What a week it has been for the Supreme Court. As if the Court did not already have its fair share of controversial issues to resolve this term—health care reform, GPS tracking, Texas redistricting, and the Arizona Immigration Case, to name a few—yesterday the Supreme Court agreed to hear a challenge to the Fifth Circuit's affirmative-action decision in during its next term. For the latest development in this case, visit the Supreme Court's official case page here, or read the Fifth Circuit's decision here: Fisher v. University of Texas, 631 F.3d 213 (2011). And last Friday, in granting a stay of the Montana court’s ruling rejecting the Court’s Citizens’ United decision, Justice Ginsburg invited parties in the case to submit briefs to “give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Today’s post features yet another closely followed case presently before the Supreme Court. The Supreme Court will hear oral argument in United States v. Alvarez today over the question of whether Congress’s Stolen Valor Act violates the First Amendment by criminalizing false statements about one’s military decorations or medals. To catch up on the latest developments in this case, check out SCOTUSblog's case page here. You can find the Ninth Circuit's decision in this case here: United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011).
As the following excerpt from the Solicitor General’s cert petition illustrates, the Supreme Court has shown a willingness to grant cert in cases that lack a circuit split where such split appears inevitable:
This Court has often reviewed lower-court decisions holding that a federal law is unconstitutional, even in the absence of a circuit split. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison,529 U.S. 598 (2000); NEA v. Finley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s recognition that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called upon to perform.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)).
Although the decision in this case is the first from a court of appeals to address the constitutionality of [18 U.S.C. § 704(b)], the issue is a substantial and recurring one. The Eighth, Tenth, and Eleventh Circuits are currently considering challenges to the Act’s constitutionality, and an appeal of a district court decision upholding the Act has recently been filed in the Fourth Circuit. See United States v. Strandlof, No. 10-1358 (10th Cir. argued May 12, 2011) (government’s appeal of district court’s dismissal of information charging defendant with five counts of violating Section 704(b), on the ground that the statute is facially unconstitutional); United States v. Amster, No. 10-12139 (11th Cir. filed May 11, 2010) (defendant’s appeal of district court’s denial of motion for judgment of acquittal on the ground that the Act was facially unconstitutional); United States v. Kepler, No. 11-2278 (8th Cir. filed June 10, 2011) (govern- ment’s appeal of district court’s dismissal of one count of indictment on the ground that Section 704(b) and (d) are unconstitutionally overbroad); United States v. Robbins, No. 11-4757 (4th Cir. filed July 29, 2011) (appeal of decision upholding Section 704(b) against First Amendment challenge, see 759 F. Supp. 2d 815 (W.D. Va. 2011)).
The fact that the case involves a controversial limitation on speech that was struck down by the Ninth Circuit, in addition to the looming circuit split, was apparently too enticing for the Supreme Court to pass up.
[*Photo courtesy of United States Marine Corps, on Flickr]