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In this three-part series, Politics Daily's legal analyst Andrew Cohen takes a look at the year in the law. Part 1 focuses on the 2010's most under-reported legal stories. Part 2 will focus on the year's most over-reported legal stories. And Part 3 will wrap up the year-ender package with a look at major legal events and issues.
The Five Most Under-Reported Legal Stories of the Year
No. 1: United States Supreme Court Justice Samuel Alito's emergence as a conservative firebrand.
The year started off with a bang for the 2006 appointee of President George W. Bush when he visibly scoffed at remarks made by President Barack Obama during the State of the Union address. At the time, the president was criticizing the Supreme Court's decision in Citizens United v. F.E.C. It was by far the most important case of the year, in which the court's conservatives gutted federal campaign finance laws by expanding the scope of First Amendment protection for corporate "speech." Justice Alito later said pointedly that he did not plan to attend next year's SOTU address.
In October, Justice Alito's speech to the Manhattan Institute for Policy Research also was notable for his remarks about "judicial activism" and the Constitution. Editorial writers, he said, "may not appreciate the difference between what the Constitution means, and what one might like it to mean... [but] ordinary people still do get this critical distinction. The assault on the traditional idea of the role of judges began more than 100 years ago but ordinary people stubbornly hold on to some old-fashioned beliefs and one of these is the idea that the Constitution means something, statutes mean something, and the role of the judge is to interpret and apply the law as written."
Then, during oral argument before the court in late November, Justice Alito forcefully expressed his concerns about a plan endorsed by the lower courts to reduce California's prison population to constitutional levels. "If 40,000 prisoners are going to be released," he said, "you really believe that if you were to come back here two years after that you would be able to say they haven't contributed to an increase in crime?" Court observers say it takes about five years for the average justice to find his or her groove on the Supreme Court. And, indeed, as Justice Alito moves into his fifth year he is finding his voice.
No. 2: The relationship of Arizona's prison industry to the state's controversial new immigration measures.
As my colleague Jill Lawrence pointed out, Arizona was very much in the news this past year. But one component of the state's memorable journey through the courts and the cable channels did not receive its due. NPR, to its credit, spent the time to figure it out, reporting in late October:
"NPR spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry. The law could send hundreds of thousands of illegal immigrants to prison in a way never done before. And it could mean hundreds of millions of dollars in profits to private prison companies responsible for housing them."
The Arizona immigration law is now before the federal courts -- on appeal to the 9th U.S. Circuit Court of Appeals. The good news for its supporters is that the role of the prison industry in crafting the legislation won't likely play into the judges' ruling. The bad news is that there are plenty of other things wrong about the law. (Updated: credit where it's due. MSNBC's Rachel Maddow and her team also focused upon this important issue, in August. I apologize for the omission).
No. 3: Lingering problems at the Interior Department.
It wasn't just the department's slow response to the massive Gulf oil spill. It wasn't just the way a federal trial judge used a written opinion to eviscerate Mineral Management Service's staffers over their push for an undersea drilling moratorium. It wasn't the shoddy way in which the Bureau of Land Management treated wild horses out West, to the benefit of corporate interests, which led to unnecessary deaths and a much-needed internal review. It was all of these things, and Interior Secretary Ken Salazar's leadership, that reveal the lingering problems. Just two years after the agency's sex and drugs scandal, you would have thought more folks would still be paying attention. It's just our land, air, water and animals that are at stake, after all.
No. 4: The corporate fraud trial of David H. Brooks.
I have covered and followed hundreds and hundreds of trials in my time as a legal analyst. I have never seen one like this. Brooks was charged, tried and convicted of massive fraud involving his former body-armor company DHB Industries. The narrative of his federal trial in Central Islip, N.Y. -- allegations of mind control, pens allegedly hidden in orifices, the whiff of jury tampering -- reads like a movie script that some producer would reject as too unbelievable even for Hollywood. The case involved sex, drugs, money, innocent victims and bizarre courtroom behavior, and if all of that had occurred in front of courtroom cameras, United States v. Brooks, et. al, would have become the most closely watched court case of the past decade.
No. 5: The Four Horsemen of Federalism (or Interposition)
The Republican attorneys general of four states -- Arizona, Florida, Texas and Virginia -- collaborated extensively in 2010 on a legal crusade against federal authority and power. They joined in legal filings against health care, copied one another's tactics on immigration, challenged federal climate control legislation, and otherwise made life miserable for the White House and Justice Department. Indeed, the level of support and coordination between and among these state attorneys was remarkable -- you may have to go back to the 1960s or even the 1930s for its equal -- and a wonderfully specific example of the level of tension these days that exists along the federal-state divide.
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