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Monday round-up

Two interviews with Justice Stevens appeared this weekend, renewing speculation over the timing and political consequences of his eventual retirement from the Court.  The Justice told Adam Liptak of the New York Times that although “there are still pros and cons to be considered…. I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process.  The president and the Senate need plenty of time to fill a vacancy.”  Liptak reported that the Justice’s “calculus seemed to be weighted toward departure.”  And reporting from Fort Lauderdale, where Justice Stevens spends much of his time, Robert Barnes of the Washington Post spoke with Florida neighbors and acquaintances who described the Justice’s regular tennis and bridge games and his unassuming presence.  Justice Stevens told Barnes that he hoped that his earlier comment (to Jeffrey Toobin of the New Yorker) that he would decide on his plans for next year within thirty days “wasn’t being treated as a statute of limitations,” and he repeated that he would surely retire while President Obama was still in office.

Jess Bravin of the Wall Street Journal opined that “Justice Stevens’s departure is likely to diminish the liberals’ influence because of the personal and institutional dynamics that define the Supreme Court.”  Bravin noted that whereas Justice Stevens now “speaks immediately after Chief Justice John Roberts at the court’s private meetings, where the justices follow seniority to decide which cases to hear and conduct straw votes after oral arguments,” after his retirement “the chief justice will be followed by fellow conservative Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas before a liberal—Justice Ruth Bader Ginsburg—gets in a word.”  Greg Stohr of Bloomberg reported that the Obama administration “is focusing on three candidates” – Solicitor General Elena Kagan, Judge Merrick Garland of the D.C. Circuit, and Judge Diane Wood of the Seventh Circuit – to replace Justice Stevens.

Appearing with Senator John Kyl on Fox News Sunday, Senator Arlen Specter encouraged Justice Stevens to remain on the Court for another year, reasoning that “gridlock in the Senate [this summer] might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.”  Perry Bacon, Jr. on the Washington Post’s Politics and Policy Blog, Joan Biskupic for USA Today, Bridget Johnson of The Hill, Josh Kraushaar for Politico, FoxNews, Sam Stein on the Huffington Post, and the Village Voice all discussed the Stevens interviews and the comments by Senators Kyl and Specter.  Josh Gerstein of Politico weighed the likelihood of a controversial nominee given the Obama administration’s other political priorities, while The Guardian offered a foreign perspective.

The weekend also saw continued commentary on recent decisions by the Court.  Jessica Toonkel Marquez of InvestmentNews opined that the Court’s decision in Jones v. Harris Associates would “likely put more pressure on the boards and managements of [mutual] fund companies to defend their fees and could open the door to even more litigation.”  The Sentencing Law and Policy blog recapped its coverage of the decision in Padilla v. Kentucky and last week’s arguments in Dillon v. United States and Barber v. Thomas.  Sahar Aziz of ACSBlog expressed hope that the Court would use Humanitarian Law Project v. Holder, argued in February, to require prosecutors to prove the defendants’ specific intent to further illegal ends when interacting with charitable groups designated as terrorist organizations.

A recording of Justice Breyer’s recent speech on the place of foreign law in the Court was made available; Ashby Jones of the Wall Street Journal Law Blog contrasted Justice Breyer’s approach with that of Justice Scalia.  Robert Barnes of the Washington Post reported on the Justices’ increased practice of speaking outside of the Court.


  • Stuart Taylor Jr. of the National Journal reviewed the public positions of Ninth Circuit nominee Goodwin Liu on a host of controversial topics; the editorial board of The Nation praised the nomination.
  • JURIST reported on the dismissal of 105 habeas cases involving former Guantanamo Bay detainees by the U.S. District Court for the District of Columbia.
  • David Ingram of the Blog of LegalTimes reported that Dick Heller would appeal to the D.C. Circuit the recent decision upholding the District of Columbia’s post-Heller gun control laws.
  • UPI noted that the Republican Party is preparing an as-applied First Amendment challenge to McCain-Feingold’s prohibition on “soft money” donations to national parties.
  • Rick Pildes of Balkanization ascribed some portion of the recent financial meltdown to the Court’s 2007 decision in Watters v. Wachovia Bank, N.A.
  • Harriet Robbins Ost of UPI reported on Snyder v. Phelps, to be argued next term.
  • Dan Freedman of the Houston Chronicle connected the constitutional litigation over the healthcare legislation to United States v. Lopez, which involved a San Antonio student.
  • Lee Hill Kavanaugh reported for the Kansas City Star on a young cancer patient’s recent trip to the Court.
  • At Above the Law, David Lat recorded one reader’s marshmallow-Peep-based interpretation of Justice Sotomayor and the Court.