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The Supreme Court never just does one thing at a time. So, even though the spotlight was on the Court for the oral arguments March 18 in the Second Amendment case D.C. v. Heller, it was also making history, or at least news, in several other ways last week. It issued an important ruling on race in jury selection. It made time to honor Deputy Solicitor General Edwin Kneedler for arguing his 100th case. And on the First Amendment front, the high court agreed to consider the Federal Communications Commission’s policy on indecent language on the airwaves. It also issued a ruling that continues the Roberts Court’s effort to rein in facial challenges against statutes, an important tactic used by civil liberties advocates for decades. And in that First Amendment case, the Court — or at least Justice Antonin Scalia — even found time to mention Oscar the Grouch, another first.
Dropping the F-Bomb The week began with the Court agreeing to revisit the issue of broadcast indecency, 30 years after it approved FCC rules banning George Carlin’s “seven dirty words” from the radio. This time, the context is the fleeting use of expletives in live broadcasts. At issue in the case of FCC v. Fox Television Stations is the seemingly spontaneous use of the “F-word” by Cher in 2002 and Nicole Richie in 2003 on Fox broadcasts of the Billboard Music Awards. In accepting an award, Cher said critics had counted her out for decades, and she added, “So fuck �em. I still have a job, and they don’t.” Richie got an award for her role in a reality show that had her living a rural life. “Have you ever tried to get cow shit out of a Prada purse?” she asked on the air. “It’s not so fucking simple.” After receiving complaints, the FCC ruled that these instances and others violated its ban, even though such fleeting usage had been largely ignored since the 1978 FCC v. Pacifica Foundation decision, which left the issue open. Networks appealed and won a ruling from the U.S. Court of Appeals for the 2nd Circuit that the commission’s new rules were “arbitrary and capricious” and “divorced from reality.” The Bush administration appealed and the Court agreed to consider it in the fall. The Court rejected the pleas of Supreme Court veterans Carter Phillips of Sidley Austin, who represents Fox, and Miguel Estrada of Gibson, Dunn & Crutcher representing NBC Universal. Now that the case has been granted, Phillips confirms he will argue the case for the networks . Asked if he will verbalize the words at issue during oral argument, rather than use euphemisms, Phillips offered this answer by e-mail: “Unless directed otherwise by the Court, I plan to approach the argument … in the same way I did in the Second Circuit. I dropped the F- and the S-bomb before and I would do it again.” The Court also heard oral arguments on Monday, and at the end of one of them, Chief Justice John Roberts Jr. paid tribute to veteran advocate Kneedler for arguing his 100th case before the Court.
Advocates Fire Away For some big-firm advocates, getting to the Supreme Court on time to argue a big case might be reason to beckon the Town Car. But Walter Dellinger III of O’Melveny & Myers stuck to his usual mode of transportation — road bicycle — for his ride to the Court on March 18 to argue what may be the biggest case of his career, the gun-rights case D.C. v. Heller. That level of calm and confidence continued when he was on the podium. Dellinger is unflappable, even when the argument is getting away from him or he is being pummeled by questions. So Dellinger did not seem unnerved even when, just a minute or so after he began speaking, Justice Anthony Kennedy seemed to tip his hand — away from Dellinger’s side. Parsing the words of the Second Amendment, Kennedy said the first clause was meant to reaffirm “the existence and the importance” of the treatment of state militias contained in the Constitution itself. The crucial second part, Kennedy asserted, means that “in addition” there is a right to bear arms, which he later declared was a “general right.” The Second Amendment reads, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Counting Kennedy, it appeared that five or more justices were ready to recognize some form of an individual right to keep and bear arms that is only loosely tethered, if at all, to the functioning of militias. What kind of regulation of that individual right will be allowed by those justices is uncertain. Solicitor General Paul Clement was up next after Dellinger. Some conservatives hoped he might back off his middle-road approach to the issue — an approach that would preserve the range of federal gun laws already on the books — but Clement stood his ground. For his part, Alan Gura of Gura & Possessky, arguing his first case before the Court, also held his own in his representation of the D.C. residents challenging the D.C. ban. Some on the gun-rights side had hoped he would stand aside and let a veteran advocate argue the historic case, but Gura persisted. He seemed well-versed in the colonial-era history of the Second Amendment and gun rights that interested several justices. One thing was clear from the 97 minutes of oral argument — extended on the spot from the 75 minutes allotted by Roberts: After nearly 70 years of sidestepping the issue of the meaning of the Second Amendment, the Supreme Court seemed ready to tackle the job with gusto.
Oscar’s Debut The same day of the oral argument in the gun case, the Court issued its decision in the case Washington State Grange v. Washington State Republican Party, et al. In that decision, authored by Justice Clarence Thomas, the Court said the “top two” primary system in Washington state should be allowed to go into effect. The system, approved by voters in 2004, allows candidates to list on the ballot their political party preferences — whether or not the party they prefer wants to be identified with them. The political parties complained their First Amendment right not to associate with the candidates would be violated, and voters would be confused. Courts below agreed, so the system has not been tried. The ruling will be remembered most for its discouragement of facial challenges — lawsuits against a statute before it takes effect. “Claims of facial invalidity often rest on speculation,” Thomas wrote, adding that in many cases, they also thwart the wishes of the electorate. But the decision also marked the first time that Oscar the Grouch has been cited by the nation’s highest court. In a concurrence, Roberts supported Thomas’ view that voter confusion was not at all certain just because a candidate says, “I prefer the Democratic Party.” To illustrate his point, Roberts said that the statement “I like Campbell’s soup” would not necessarily imply any connection with the Campbell Soup Co. Justice Antonin Scalia, who argued that political parties’ rights were infringed in part because they cannot rebut the candidate’s statement of preference, could not resist. Washington’s law, he said, amounted to allowing “Oscar the Grouch (Sesame Street’s famed bad-taste resident of a garbage can)” to endorse Campbell’s soup repeatedly, without allowing the soup company to disavow his statement.
O.J. and Jury Selection On Wednesday, after the hoopla surrounding the gun case settled down, the Court issued Snyder v. Louisiana, overturning the conviction and death sentence of Allen Snyder, a black death row inmate. Authored by Justice Samuel Alito Jr., the 7-2 decision was a strong reaffirmation of Batson v. Kentucky, the 1986 ruling that bars striking potential jurors on the basis of race. Before the trial the prosecutor referred to it as his “O.J. Simpson case.” The voir dire resulted in an all-white jury, and Alito dissected the reasoning behind the peremptory challenges that struck all the blacks from the jury pool. In one instance, the prosecutor used a challenge to eliminate a black college student who was a student teacher. When the defense made a Batson challenge, the prosecutor said race was not a factor. Instead, the prosecutor said he was worried the student might find the defendant not guilty to minimize his time away from student teaching. But Alito said that explanation was “suspicious,” noting that the student’s professor said making up lost time was not a problem, and that white jurors with similar work concerns were kept on the jury. The ruling, a rare reversal of a death penalty conviction, won the applause of Amnesty International, which usually has little to cheer about from this conservative Court. Said Sue Gunawardena-Vaughn, director of Amnesty International USA’s Death Penalty Abolition Campaign, “The Supreme Court justices have prudently demonstrated that bias cannot form the underpinnings of judicial proceedings.”
Tony Mauro can be contacted at [email protected].

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