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Could Clarence Thomas Be Questioning Whether Citizens United Binds the States?

By Steve Klepper (Twitter: @MDAppeal)

One of the more surprising denials of certiorari this past term at the U.S. Supreme Court was in Iowa Right to Life Comm. v. Tooker. There, the Eighth Circuit, applying FEC v. Beaumont, 539 U.S. 146 (2003), upheld an Iowa law that bans direct corporate contributions to political campaigns but permits such contributions by unions. Over at the Election Law Blog, Rick Hasen noted that Beaumont’s days appear to be numbered under recent Supreme Court election law decisions, but he concluded Chief Justice Roberts “is playing the long game, not wanting to move quickly.”

I agree that Chief Justice Roberts is playing the long game, but it only takes four justices to grant certiorari. In Beaumont itself, Justices Kennedy (concurring in the judgment) and Justices Scalia and Thomas (dissenting) telegraphed a willingness to reexamine the ban on corporate giving in a future case. It’s difficult to see why Justice Alito, having since joined the Court, would hesitate to vote to grant review in Iowa Right to Life, particularly given Iowa’s differing treatment of unions and corporations. Read More…

Team SCOTUS! 9 Action Hero Supreme Court Justices

By Steve Klepper (Twitter: @MDAppeal)

Maryland Court of Appeals Judge Glenn T. Harrell, Jr. likes his movie references. The first time I had dinner with him, he regaled the table with a lively discussion of The Expendables 2 – a cartoonish testosterone-fest featuring a collection of past-their-prime action stars. (Disclosure: I never saw the first one and made it through only 15 minutes of the second.) The Expendables 3 arrives this summer, and, at least judging by the posters, it looks simply awful. In honor of Expendables 3, and of Judge Harrell completing his term as Chair of the MSBA Section of Litigation, I proudly present my list of nine action-hero Supreme Court justices. Read More…

The Elite Federal Bar in Baltimore, 1818 to 1834

by Steven M. Klepper (Twitter: @MDAppeal)

[On the anniversary (plus one day) of William Wirt’s argument before the Supreme Court in McCulloch v. Maryland, I am reprinting below an article that has previously appeared in The Federal Lawyer and Maryland Litigator. I would like to dedicate this re-print to my late cousin, Kevin Rooney, who passed away last June. When this article appeared in The Federal Lawyer in 2011, Kevin—who attended seminary in Baltimore before deciding to become a lawyer—emailed me regarding our Wirt connection. When Kevin served as Assistant Attorney General for Administration, he chose Wirt’s portrait to hang in his office at the U.S. Department of Justice. Kevin, however, found the happy balance between career and family that eluded Wirt.]

[The article is Copyrighted 2011,  Steven M. Klepper.]

As the federal bar took shape in the early decades of the nineteenth century, Baltimore, Maryland, was home to a disproportionate share of that bar’s elite members. G. Edward White, in his volume of the Oliver Wendell Holmes Devise History of the Supreme Court, observed that the “period from 1815 to 1835 was one of the highwater marks in the history of the Supreme Court bar.”[1] Of the six pre-eminent attorneys whom Professor White profiled, three—Luther Martin, William Pinkney, and William Wirt—centered their trial practices in Baltimore. After the deaths of Martin and Pinkney in the early 1820s, future Chief Justice Roger Taney, himself an accomplished advocate before the Marshall Court, moved his practice to Baltimore. In a time when United States Attorney General was a part-time job, Pinkney, Wirt, and Taney all served in that role while maintaining private practices in Baltimore. Read More…

McCulloch v. Maryland—Revisited With Newly Discovered Document

By Michael Wein

A recently auctioned document[1] puts a few historical facts in context of the historic Supreme Court decision in McCulloch v. Maryland, 17 U.S. 316 (1819), holding that a Maryland law seeking to tax the Second National Bank in Baltimore was unconstitutional, under an expansive reading of the Federal Government’s implied powers through the “Necessary and Proper” Clause. Here’s the link to the Ebay auction. Read More…