Monday round-up

By James Bickford
on Dec 6, 2010 at 9:20 am

The Court will hear argument in two cases this morning.  In USA Today, Joan Biskupic previews the first: Henderson v. Shinseki, in which the widow of a mentally ill Korean War veteran is seeking the right to appeal a denial of benefits by the Department of Veterans Affairs.  Her late husband failed to appeal the denial within the statutory 120-day period; his widow argues that the very disability that made him eligible for benefits also made him incapable of meeting the deadline for appeal.  At Sentencing Law and Policy, Doug Berman notes an amicus brief filed in Pepper v. United States, the other case to be argued this morning, and lays out the conflict implicit in Pepper: between utilitarian and retributivist approaches to sentencing.

On Wednesday, the Court will hear argument in Chamber of Commerce v. Whiting, which raises the question whether federal immigration law preempts an Arizona statute that punishes companies that hire undocumented workers.   The Arizona Republic and Arizona Daily Sun both have coverage of the case (thanks to How Appealing for those links) as do the Los Angeles Times and the Associated Press (via Arizona Daily Sun).  ACSblog has video of a recent panel discussion of the case.

Last week’s argument in Schwarzenegger v. Plata is still in the news.  The editorial board of the New York Times writes that “[t]he justices should uphold the lower court’s remedy for addressing the horrors” of California’s overcrowded prisons.  In the Sacramento Bee, Michael Vitiello has a column arguing that “only the continued pressure from the federal court has focused policymakers’ attention” on the issue, and hoping that the Supreme Court will allow the lower court’s order to stand.  The San Bernadino Sun writes that the only alternative to releasing prisoners is to “float a massive construction bond the state can’t afford and begin putting up more prisons.”  The Record of Stockton, CA also offers its opinion on the case.

Several publications have coverage of pending petitions for certiorari.  Michael Kirkland of UPI reports on the petition in Wal-Mart v. Dukes, which asks the Court to review the class certification of 1.5 million women who allege employment discrimination; he writes that the Court is “expected” to take the case.  Lawrence Hurley of Greenwire (via the New York Times) covers the petition in American Electric Power v. Connecticut, which Justice Sonia Sotomayor heard (though she did not rule on the case) while serving on the Second Circuit; he suggests that Justice Sotomayor will likely recuse herself if the petition is granted.  Meanwhile, at the Constitutional Law Prof Blog, Steven Schwinn highlights the petition in Philip Morris v. Jackson, involving a $271 million judgment that was stayed by Justice Antonin Scalia in September.

Commentators continue to speculate about the various gay-rights issues that may come before the Court.  At Jost on Justice, Kenneth Jost looks back to a 1980 opinion by Justice Anthony Kennedy (written when he was a judge on the Ninth Circuit) in search of clues to the Justice’s vote if and when a challenge to the “don’t ask/don’t tell” policy reaches the Court.  Jost concludes that “the justice who wrote Lawrence seems an unlikely vote to deny the freedom established in that decision to men and women who put their lives on the line to defend freedom for the rest of us.”  At Summary Judgments, Doug NeJaime reviews Gill v. Office of Personnel Management and Perry v. Schwarzenegger, the two gay marriage cases that seem likeliest to reach the Court.

Retired Justice John Paul Stevens’ recent book review is still a topic of conversation.  In his Boston Globe column, Jeff Jacoby disputes the contention (endorsed by Justice Stevens) that the death penalty is applied in a racially disparate manner.  And at Crime and Consequences, Kent Scheidegger criticizes Justice Stevens’ role in a number of death penalty cases.

Finally, there are several reports on the resignation of Ginni Thomas, wife of Justice Clarence Thomas, from her post at the conservative advocacy group Liberty Central.  The Daily Caller has an interview with Mrs. Thomas; at the Blog of Legal Times, Tony Mauro highlights her comment that the widely reported phone call to Anita Hill was “probably a mistake on my part.”  The Associated Press (via Minneapolis Star Tribune) and the Wall Street Journal Law Blog also have coverage.

And, briefly:

• In Slate, Rick Hasen looks back at Bush v. Gore, writing that the real legacy of the case is “the undermining of the public’s faith in the fairness of American elections.”
• Anna Sale of WNYC reports on the still-disputed impact of Citizens United.  (Thanks to Rick Hasen’s Election Law Blog for the link.)