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Friday round-up

For all round-up coverage of Elena Kagan since her nomination, see our collection of past links on SCOTUSwiki. Staff picks are marked by asterisks.

Arizona’s campaign finance law and Elena Kagan’s paper trail dominate Supreme Court coverage as the week comes to a close.

On Tuesday, the Court reinstated an injunction halting further disbursement of public subsidies to candidates for state offices, at least until the Court decides whether to grant cert. in the case. (See Lyle’s post on the order here.) The editorial board of the Washington Post reacts to the order today, asserting that, “[o]n the subject of campaign finance regulation, the Supreme Court is out of control.” The editorial goes on to describe the Court’s emergency order as “extraordinary—and extraordinarily unwise” because campaigns are in full swing: Arizona’s primaries are two months away, and the general election will take place in just five months. On ACSblog, the Brennan Center’s Mimi Marziani agrees; she describes the order as “irresponsible,” but she also argues that predictions of public financing’s ultimate demise are “greatly exaggerated,” “alarmist,” and “inaccurate.” At Constitutional Law Prof Blog, Steven Schwinn lists the various issues the Justices could address in the case if – as now seems likely – they grant cert. Deborah Hellman, in a guest post at Concurring Opinions, examines the arguments on each side of the case and asks, “Why . . . is the First Amendment even implicated?”

Senate Republicans are stepping up their criticisms of Elena Kagan as her confirmation hearings approach. Politico’s Scott Wong reports that Senator Jeff Sessions (R-AL) and Senator Jon Kyl (R-AZ)—both members of the Judiciary Committee—are troubled by memos that Kagan wrote as Justice Thurgood Marshall’s law clerk. The senators contend that “the papers suggest she lets politics dictate her legal decisions,” according to the Associated Press (via the Huffington Post). At the Volokh Conspiracy, however, Eugene Volokh explains the context of law clerk memoranda and why Kagan’s memos to Justice Marshall should not raise eyebrows. Nina Totenberg reports for NPR that, because Kagan has never served as a judge, Senator Kyl believes she bears the burden of proving her fitness to be a Justice. Meanwhile, Senator Sessions continues to suggest that Kagan’s hearings be delayed due to the pace at which the National Archives is releasing documents from the Clinton administration, according to the Blog of LegalTimes. (Another 41,759 pages of documents are set to be released today at 1 p.m.) Al Kamen, a columnist for the Washington Post, reports that “[t]he administration [has] asked the Archives to step on it.” ABC News and Bloomberg also have reports on Senator Sessions and Senator Kyl’s statements.


  • The Associated Press (via NPR) reports on a study from the Constitutional Accountability Center finding that the Roberts Court has “a decidedly pro-business tilt.”
  • At Sentencing Law and Policy, Doug Berman responds to what he calls an “amusing” editorial in the Washington Times (covered in yesterday’s round-up) criticizing Elena Kagan’s record on gun control. Berman faults the editorial board’s charges of “activism” against Kagan and Justice Sotomayor on Second Amendment issues. Media Matters calls the editorial a “distortion” of Kagan’s record.
  • AOL Politics Daily’s Andrew Cohen examines Senator Tom Coburn’s (R-OK) recent lament about the effectiveness of Supreme Court confirmation hearings and reflects on Coburn’s performance in the hearings for Chief Justice Roberts and Justices Alito and Sotomayor.
  • Howard Wasserman analyzes the Court’s recent decision in Krupski v. Costa Crociere, the “mistaken defendant” case, at PrawfsBlawg. Wasserman writes that “[t]he Court adopted a very broad understanding of ‘mistake concerning the proper party’s identity,’ which is a good thing.”  (You can read Kevin Russell’s discussion of the case for SCOTUSblog here.)
  • Finally, Lynn Sweet’s blog for the Chicago Sun-Times has a picture of President Obama wearing a bow tie while taping a video tribute to Justice Stevens.