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Thursday round-up

At the eleventh hour last night, the full Court stayed a Texas execution, giving the justices more time to consider the condemned man’s cert. petition, in which he seeks to pursue a civil rights claim that he is entitled to DNA testing to prove his innocence.  The Los Angeles Times, CNN, Houston Chronicle, AP (via NPR), and Lyle at this blog offer background on the case.

On Tuesday, Justices Breyer and Scalia brought their “road show” to the Supreme Court Historical Society, explaining how their different methods of constitutional interpretation – Justice Scalia looking primarily to the text and Justice Breyer considering other factors that allow for changing meaning over time – puts them on opposite sides in so many cases.  The BLT recounts highlights from the discussion, observing that the Justices have “perfected the stylized debate they have from time to time in front of audiences around the country,” while Ashby Jones on the WSJ Law Blog focuses on a good-natured exchange: when Scalia responded that he’d never heard one of Breyer’s arguments before, Breyer quipped, “If I did make an argument you hadn’t thought of before, I wish you’d think about it.”

After news broke yesterday of constitutional challenges by fourteen state attorneys general to the recently passed healthcare bill (see the latest report from the Boston Globe), editorial boards at the major newspapers are weighing in: the board at the USA Today, for example, expressed concern that “the outcome could ultimately paint the courts, which are supposed to be neutral, as just one more venue for the partisan warfare that convulsed Congress.”  Administration officials have called the suits “legally baseless,” according to Politico, and counter that the Court’s 2005 decision in Gonzales v. Raich “suggests that the Roberts court could be reluctant to overturn the law.”

News coverage of yesterday’s oral arguments is slim. Adam Liptak of the New York Times reports that the Justices did not appear swayed by the arguments of a death row inmate appealing his sentence in Magwood v. Patterson.  [Disclosure: Howe & Russell and Akin Gump represent petitioner Billy Joe Magwood.]

After the Court recently dismissed as moot the Kiyemba I case brought by Guantanamo detainees, Eric Montalvo asserts at ACSBlog that the Court should have heard the case as an exceptional one “capable of repetition, yet evading review.”


  • At the Huffington Post, John Whitehead criticizes the Court’s decision to deny cert. in Nurre v. (Carol) Whitehead, a petition challenging a high school’s refusal to allow a rendition of the “Ave Maria” at graduation.
  • The Associated Press’s Jesse Holland (via the Boston Globe) and Paul Secunda at the Workplace Prof Blog offer a late recap and reflection, respectively, on Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, with Secunda predicting a 9-0 victory for the government.
  • ACSBlog notes the fortieth anniversary this month of Goldberg v. Kelly, which recognized a right not to be denied benefits from a government program without “procedural due process.”
  • The AP (via the Los Angeles Times) reports that, pursuant to the Court’s denial of cert. in Noriega v. Pastrana, a petition by Panamanian former dictator Manuel Noriega, a Miami federal judge has lifted a stay barring Noriega’s extradition to France.
  • Jack Balkin writes at Balkinization that the Warren Court gets an undeserved “bum rap” for its bold progressive rulings, when in fact some of the biggest advances for affirmative action and abortion rights happened during the tenure of conservative Chief Justice Warren Burger.
  • Joan Biskupic of USAToday describes a talk at Akin Gump by Seventh Circuit Judge Diane Wood, whom many regard as a possible candidate to fill a Supreme Court vacancy.