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Tuesday round-up

Note: Please see yesterday’s evening round-up for more coverage of Monday’s opinions and orders at the Court.

In the wake of yesterday’s decision in American Needle, Inc. v. NFL, Jarrett Bell of USA Today and W.D. Cornwell at the Huffington Post discuss the decision’s ramifications for future collective bargaining negotiations in the sport.  Robert Barnes and Mark Maske of the Washington Post also have coverage of the decision.

Warren Richey of the Christian Science Monitor and Adam Liptak of the New York Times analyze the opinion in Lewis v. City of Chicago, another of yesterday’s decisions. At the Chicago Tribune, Cynthia Dizikes discusses how the “costly defeat” will affect future hiring for the fire department and for city employers in general.

In nomination news, Paul Bedard of the USNRW Washington Whispers blog reports on the letter sent recently to the Senate Judiciary Committee by National Archivist David Ferriero, who promised members of the Committee that memos written by Elena Kagan during her time in the Clinton White House would be provided beginning on June 4.  Julie Hirschfield Davis of the AP reports on statements made yesterday by Republican Senator Jeff Sessions, who warned that he would attempt to slow the confirmation process if senators did not receive timely access to the files. Meredith Shiner of Politico reports on criticism by Sessions of Kagan’s decision to bar military recruiters from Harvard; Sessions conceded, however, that the issue would not be “the” deciding factor in determining whether Kagan should be confirmed. Ariane de Vogue of ABC News also reports on Sessions’ comments.  At the New York Daily News, James Gordon Meek reports on criticism leveled at Kagan by Senator John Cornyn, who characterized Kagan’s public disagreement with the Court’s ruling in Citizens United v. FEC as a “disregard” for freedom of speech.

Meanwhile, Bennett Roth of Roll Call reports on interest groups’ use of the Internet and social networking sites to influence the nomination process.  At NPR, Ari Shapiro reports on the relatively high level of involvement of the Obama Administration in preparing Kagan for the confirmation process.

In the first of a pair of editorials, the editorial board of the Washington Times criticizes what it describes as Kagan’s “judge-centric view of government power”; the editorial concludes that “a vote for Ms. Kagan would be a vote against moderation and in favor of liberal social action.”  In another piece, the editorial board questions Kagan’s views on the role of foreign law in American jurisprudence and calls on senators to “question Ms. Kagan in great depth” on the subject during confirmation hearings.

At Slate, Richard Hasen disputes the argument that Kagan would be willing to allow the government to ban books and pamphlets critical of the government.  Hasen calls the idea a politically motivated “distortion” of her remarks in Citizens United oral argument, and he concludes that “the whole book-banning argument…turns out to be no more than political theater to beat up on the president’s nominee, and on the president by proxy.”  Marvin Ammori of Balkinization posts a lengthy analysis of Kagan’s previous criticism, both in her earlier writings and during her tenure as Solicitor General, of “anti-distortion” rationales used to restrict free speech.

Finally, at the New York Times, Charlie Savage and Lisa Faye Petak look at Kagan’s grades as a first-year law student at Harvard, noting that a B and B-minus during her fall semester were the lowest grades of her law school tenure.


  • In the wake of last week’s opinion in U.S. v. Comstock, the editorial board of the L.A. Times criticizes the practice of using the “civil commitment process as a backdoor way of prolonging a criminal sentence.”  The board urges the Court to “address the question left hanging by last week’s decision”:  whether extending an offender’s confinement requires “the same level of proof as convicting him in the first place.”
  • At the Volokh Conspiracy, Eugene Volokh reviews the Court’s opinion in Hustler v. Falwell to conclude that allowing liability for “supposedly outrageous speech that recklessly inflicts severe emotional distress” in Snyder v. Phelps is a subjective standard that would restrict other forms of speech that may be “an important part of public debate.”
  • In light of recent admissions by some Justices that they were unfamiliar with Twitter and some other social media sites, Andrew Cohen of Politics Daily takes a lighthearted look at what some members of the Court might share in 140 characters or fewer.
  • The AP and SCOTUSblog‘s Lyle Denniston cover the Obama Administration’s Monday request that the Supreme Court let stand the lower court ruling in Republican National Committee v. FEC, which upheld the partial ban on “soft money” campaign contributions.