Tuesday round-up

By Jay Willis
on May 18, 2010 at 10:50 am

As the Court returned from recess, yesterday’s release of opinions in Graham v. Florida, Sullivan v. Florida, United States v. Comstock, and Abbott v. Abbott provided a brief respite from nomination coverage.

At CNN, Bill Mears covers the Graham decision, noting that the ruling “is likely to create further challenges from other inmates who say their sentences as juveniles were excessive.” At Slate, Emily Bazelon echoes this sentiment, predicting that Justice Kennedy’s majority opinion “will resonate for a lot of criminals who say they’ve rehabilitated themselves.” At the New York Times, Adam Liptak notes that the ruling “marked the first time that the Court excluded an entire class of offenders from a given form of punishment outside the context of the death penalty.”  Nina Totenberg’s recap of the opinion at NPR includes discussion of the decision’s ramifications on sentencing law in states outside of Florida.  Robert Barnes at the Washington Post highlights Justice Thomas’s “stinging” dissent,  while Lyle Denniston’s coverage for SCOTUSblog focuses on the decision’s practical implications for juveniles currently sentenced to life without parole.  Joan Biskupic of USA Today, Ashby Jones of the WSJ Law Blog, and Warren Richey of the Christian Science Monitor provide additional coverage.

In the blogosphere, at Concurring Opinions, Youngjae Lee describes the decision as “[p]otentally revolutionary” in the way it could change legal challenges to other sentences.  At Crime & Consequences, Bill Otis expresses his disappointment that the decision removes life-without-parole sentences from all juvenile cases, regardless of the crime, and he predicts that “the real news” from the opinion is that it will lead to an erosion of the usage of the death penalty. The editorial board of the New York Times applauds the majority for embracing changes in sentencing standards and for its “forthright acknowledgment that there are other sources of judicial inspirations beyond the country’s founders.”  At the Volokh Conspiracy, Eugene Volokh criticizes the opinion’s reasoning; he argues that the justices in the majority “are applying their own views of what society should do.”  The ACSblog also has coverage of the decision.

At the Sentencing Law Blog, Douglas Berman has a lengthy series of posts on Graham.  In one post, he highlights the shift in jurisprudence, endorsed in Justice Kennedy’s majority opinion, from deciding Eighth Amendment cases on a case-by-case basis to using a “categorical rule.” In another piece, he suggests that although the ruling emphasizes that it applies only to non-homicide cases, the logic in the majority opinion, which “puts special emphasis on the diminished culpability of juvenile offenders as a class,” may eventually be used to challenge juvenile life-without-parole sentences for some homicides. And looking ahead, Berman previews the anticipated opinion in “the biggest constitutional law case still pending” this Term, McDonald v. City of Chicago. Berman predicts that if the Court rules for the petitioners, “a cottage industry of gun regulation litigation is sure to develop.” Berman also posts his own round-up of coverage of the Graham and Comstock opinions.

Warren Richey at the Christian Science Monitor recaps the Comstock opinion, asserting that the “lopsided…result suggests that federalism is no longer a high priority within the high court’s conservative wing.”  At the Washington Post, Robert Barnes noted that despite the margin, “there were signs of trepidation about the recognition of federal powers” within the several concurring opinions. Joan Biskupic of USA Today, Nina Totenberg of NPR, David Savage of the L.A. Times, BBC News, and Bill Mears of CNN also have coverage.  At the Sentencing Law Blog, Douglas Berman characterizes the simultaneous release of the decisions in Graham and Comstock a wise public relations move by the Court; casual observers who learn of both decisions, he writes, are likely to concur that “the Supreme Court is being pretty sensible.” At the BLT, Tony Mauro notes (as does Jess Bravin at the Wall Street Journal) that the case is yet another victory for Elena Kagan, who argued the case on behalf of the government.

In the first of several Comstock posts at the Volokh Conspiracy, Eugene Volokh expresses dismay at the holding and writes that it may signal that “the brief resurrection of the enumerated powers doctrine…may be largely over.”  Jonathan Adler concurs, asserting that the decision is “a major setback for those seeking to limit the federal government to its constitutionally enumerated powers.”  At the same blog, Ilya Somin calls the opinion “very bad news for constitutional federalism,” although he tempers this assessment by noting some ambiguity in the reasoning that “might reduce the decision’s future impact.”  Finally, Randy Barnett examines how the Court’s analysis might affect future constitutional challenges to the individual health insurance mandate.

Jesse Holland of the AP and Marcia Coyle of the National Law Journal cover the Court’s decision in Abbott. [Disclosure:  Akin Gump and Howe & Russell represented petitioner Timothy Abbott in the case.]  At the Volokh Conspiracy, Jonathan Adler has a brief post on the subject in which he notes the ideologically unusual voting lineups.

In nomination-related news, Julie Hirschfield Davis of the AP reviews Kagan’s “carefully calculated hints about her judicial approach” on various issues, including the Citizens United v. FEC decision, as she continues her Capitol Hill visits.  Tony Mauro of the BLT reports that Professors Michael Gerhardt (the University of North Carolina) and Orin Kerr (George Washington University) will advise members of the Senate Judiciary Committee in preparing for confirmation hearings. Mike Allen and Josh Gerstein of Politico cover the release of Kagan’s undergraduate thesis on twentieth-century socialism in New York City, while Ashby Jones at the WSJ Law Blog notes the wide scope of early reactions to its public dissemination.  In an opinion piece at CNN, Julian Zelizer downplays Kagan’s lack of judicial experience and the significance of her thesis, writing that “rely[ing] on undergraduate work to make judgments about a nominee is a mistake.”  However, he still urges senators to take Kagan’s “challenge” to heart and to press her to share her views on important constitutional questions.

At the National Law Journal, Marcia Coyle examines Kagan’s academic writings during her tenure as the dean of Harvard Law School and compares it to the output of other high-profile deans.   Nina Totenberg at NPR provides another in-depth look at Kagan’s tenure at Harvard (includes audio).

Warren Richey at the Christian Science Monitor examines Kagan’s answers during last winter’s Solicitor General confirmation hearings to try and determine how she might rule on the issues as a Justice. With an eye toward the possibility of a filibuster, Eugene Volokh of the Volokh Conspiracy opines that such an action is unlikely because “it’s not clear exactly how liberal Kagan will be,” and he concludes that a filibuster would entail “a political cost…with fairly little political []gain.”

Other commentators continue to discuss the changes to the Court’s demographics if Kagan is confirmed.  In an opinion column at USA Today, Stephan Prothero writes that although the current Court is preferable to previous all-Protestant courts, it still does not reflect the broader religious diversity of the country. Reflecting these sentiments, Chris Weigant of the Huffington Post discusses the possibility of appointing a Justice even further outside the religious mainstream.  In an opinion piece on the U.S. News & World Report blog, Mary Kate Cary downplays the significance of motherhood on the Court; in her view, although diversity of experience is important, “just having more qualified women on the Supreme Court’” is an important intermediate step.

Finally, Nina Totenberg of NPR and Lyle Denniston of SCOTUSblog briefly report on the Court’s decision to deny cert. in Cablevision Systems Corp. v. FCC.