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Tuesday round-up

Coverage of Christian Legal Society v. Martinez and City of Ontario v. Quon dominates the Court-related headlines this morning. Anticipation ran high for Monday’s oral arguments in both cases; Mike Sacks of First One @ One First writes that the line began forming at noon on Sunday for those that sought to ensure themselves a seat in the courtroom.

Most of the coverage of Christian Legal Society noted what Warren Richey of the Christian Science Monitor called the “sharply divided” nature of the justices’ lines of questioning. In her recap of the proceedings at Slate, Dahlia Lithwick calls it an “unbelievably hard case” and sees the matter as indicative of the increasing polarization of the Court.  In NPR’s coverage, Nina Totenberg also calls the oral argument “fast and furious” and characterizes the justices’ positions as “animated and sharply divided.”  Joan Biskupic of USA Today writes that the Court “seemed divided along ideological grounds,” but she also notes the concern displayed by Justices Kennedy and Breyer about the sufficiency of the lower court record.  Bob Egelko of the San Francisco Chronicle, Lyle Deniston of SCTOUSblog, Adelle Banks at the Huffington Post, Tony Mauro at the National Law Journal, and James Vicini of Reuters also have coverage of the case.

In the first of a trio of CLS-related posts at the ACS Blog, Paul Cates of the ACLU editorializes in favor of the school and its policies, making several comparisons of CLS’s position to historical clashes between religious expression and nondiscrimination policies; Cates concludes that “[p]ublicly funded universities have a[n]…imperative to ensure that tuition-paying students are not discriminated against.”  The ACS Blog also posted clips from its press brief on the case, as well as an extended interview on the same subject with Ayesha Khan of Americans United for Separation of Church and State . Ashby Jones at the WSJ Law Blog recaps the proceedings and concludes that the justices are “pretty well split along predictable lines.”  In a post on the Baltimore Sun’s blog, Rev. Jason Polling opines in favor of the petitioners, writing that “a learning environment, like a guitar string, is useless without some tension[.]”  Finally, looking ahead, at The New York Times, Adam Liptak analyzes how the justices might one day rule on a same-sex marriage case through this month’s “proxy battles” of Christian Legal Society and Doe v. Reed.

Leading coverage of the second case, Quon, Joan Biskupic’s recap of oral argument at USA Today concludes that the Court, led by Justice Stevens during questioning, seems likely to rule in favor of the petitioner.  At The New York Times, Adam Liptak asserted that problems with the record, among other issues, point toward “a limited ruling that might provide little guidance to government employers and perhaps none to private ones.”  David Savage of the L.A. Times also covered the story and similarly concluded the Court may decide the case based on Quon’s status as a police officer, which would allow it to issue a narrower ruling.  Lee Ross at Fox News, Mark Sherman at the AP, Lyle Deniston of SCOTUSblog, and Marcia Coyle at the National Law Journal also have coverage of Monday’s argument.

In the blogosphere, Orin Kerr at the Volokh Conspiracy shares his thoughts after Monday’s proceedings, writing that a compromise of sorts, hinted at by Justice Breyer during questioning, may allow the case to be resolved without delving into broader issues of Fourth Amendment privacy. Kerr also notes the Chief Justice appeared to be the strongest supporter of the respondent’s position. In another post at the Volokh Conspiracy, Kerr also raises his doubts about whether the Stored Communications Act was actually violated in the case, and he encourages the justices to reexamine the issue if the lower court’s decision is not binding. At the Sentencing Law Blog, Douglas Berman writes that he expects the eventual ruling “to have inevitable echo effects into a lot of cybercrime and punishment matters.”  And at the WSJ Law Blog, Ashby Jones takes a humorous look at some of the justices’ less-than-tech-savvy comments in their lines of questioning in Quon.

At the BLT, Tony Mauro covers the Court’s decision to deny cert. in Hood v. Texas, the high-profile case in which the petitioner’s lawyers asked for a new trial after it was discovered that the judge and the prosecutor had once been engaged in a romantic affair. Dianne Jennings at the Dallas Morning News and Michael Graczyk of the Houston Chronicle provide further coverage of the denial.  James Vinici at Reuters, Greg Stohr at Bloomberg, and Melissa Allison of the Seattle Times all cover the justices’ decision to grant cert. in the latest test of the so-called “grey market,” Costco v. Omega.  Finally, Bill Mears at CNN covers the Court’s various orders issued on Monday.

In other Court-related news, Robert Barnes of the Washington Post discusses the possibility of allowing cameras in the Supreme Court, as Justices Breyer and Thomas discussed with members of Congress last week.  Barnes notes that though Justice Breyer hinted that he would be receptive to the idea under the right circumstances, concern for the ramifications of televising criminal court proceedings, among other reservations, may prevent this change from occurring.

In nomination-related news:

  • At the Washington Post, Perry Bacon, Jr. reports that President Obama plans to meet on Wednesday with the leaders of the Senate Judiciary Committee to discuss the nominees.  Bacon also notes that the Senate Rules Committee will hold a hearing on the filibuster as Republicans continue to consider its use during the confirmation process.
  • At Bloomberg, James Rowley and Kristin Jensen profile possible Supreme Court nominee Merrick Garland, noting in particular how the judge was affected by his work coordinating the federal investigation of the Oklahoma City bombing.
  • In the Baltimore Sun, Dan Rodricks highlights several of Justice Stevens’ pro-defendant opinions and calls the justice’s retirement the loss of a “voice of reason against the war on drugs.”
  • In an editorial at the L.A. Times, Princeton University provost Christopher Eisgruber studies how Roe v. Wade has changed the Supreme Court nomination process and writes that President Obama will have a difficult time replacing the “quirky jurisprudence” and “imaginative independence” of Justice Stevens, the “last justice appointed before the abortion debate changed the Court.”
  • An editorialist at the New Jersey Star-Ledger calls the rhetoric of criticizing so-called “activist judges” a “ritual rhetorical clash that does neither party credit,” and the author opines that since President Obama will likely choose a nominee as liberal as Justice Stevens, “[t]here would be no justification for the Republicans to block a nominee” on the basis of ideology.
  • At the Christian Science Monitor’s Mises Economics Blog, Gary Galles quotes from the Founding Fathers in calling for a return to the principle of the Court as a defender of individual liberties against “encroachment…by an overbearing national government.”
  • David Lat of Above the Law asserts that former President Clinton’s recent comments may indicate his support for the nomination of Elena Kagan to the Court this summer.


  • Mark Sherman of the AP covers Justice Stevens’ ninetieth birthday and draws comparisons between the justice and the Court’s only other nonagenarian, Justice Holmes.  Mike Sacks of First One @ One First takes a humorous look at yesterday’s proceedings in CLS in light of the justice’s birthday.
  • The AP also briefly highlights the Court’s granting of cert. in Staub v. Proctor Hospital.
  • An editorialist at The New York Times discourages the Court from hearing Republican National Committee v. FEC, writing that the justices should not “compound [the] mistake” of Citizens United v. FEC by striking down the standing ban on “soft money” contributions.