Breaking News

Friday round-up

The news media is paying particular attention to the Court’s decision yesterday in Skilling v. United States (as well as the two related “honest services” cases, Weyhrauch v. United States and Black v. United States) in which the Court restricted the scope of the statute on which federal prosecutors have long relied in corruption cases.   Nina Totenberg has coverage of the decision at NPR, while at the Washington Legal Foundation’s Legal Pulse blog, Jonathan Marcus expects “an avalanche of legal challenges on both direct and collateral review.” In the New York Times, Nicholas Confessore explores the implications of the Skilling ruling for the conviction of Joseph Bruno, a former New York State Senate majority leader who was found guilty of fraud last year. David Roeder at the Chicago Sun-Times speculates that despite yesterday’s decisions, Jeffrey Skilling and Conrad Black are unlikely to be released soon.  Kenneth Jost of the CQ Researcher Blog has additional coverage, while Christine Hurt at the Conglomerate has a discussion of the Court’s “pre-trial publicity” holding in Skilling.

Commentators are also debating the nature of the Court’s decision-making process. Cato@Liberty’s Tim Lynch criticizes the six Justices who declined to find the relevant statute unconstitutional, describing them as having “bent over backwards to ‘save’ the law from invalidation–they ruled that the law should be narrowly interpreted.” At the Atlantic, however, Wendy Kaminer sees the ruling as an expression of judicial restraint.

Some of yesterday’s other opinions are also attracting attention. Elizabeth Banicki of Courthouse News recaps yesterday’s decision in the collective-bargaining-agreement case Granite Rock Company v. International Brotherhood of Teamsters. On Josh Blackman’s blog, Blackman focuses on Justice Scalia’s use of history in his concurrence in Doe v. Reed, in which the Court held that petition signatories generally do not have a right to remain anonymous. At JURIST, Dwyer Arce summarizes yesterday’s decision in the international securities-fraud case Morrison v. National Australia Bank. We have more coverage of that case – and others – in Anna Christensen’s special-edition round-up, posted yesterday afternoon at SCOTUSblog.

Coverage of the Elena Kagan nomination has reached a fever-pitch. The American Bar Association yesterday released its rating of Kagan: well qualified, by unanimous vote (one abstention).  The Associated Press, Boston Globe, and Bloomberg have reports.  Ed Whelan calls the rating “ridiculous” at Bench Memos, where he separately draws attention to “Kagan’s role, as a Clinton White House staffer, in preventing enactment of the Partial-Birth Abortion Ban Act.” At TIME, Adam Cohen briefly profiles the nominee, concluding that she could be “a powerful intellectual leader for the liberals, and adept at winning over conservative justices.”

“Senate Republicans and conservative activists…are sharpening their criticism” of Kagan, the AP’s Julie Hirschfeld Davis reports (via the Washington Post). Also at Bench Memos, Ed Whelan quotes at length from a floor speech by Republican Senator Orrin Hatch, in which the Senator claims that Kagan has “endorsed . . . an activist judicial philosophy.” The WSJ Law Blog’s Nathan Koppel also has coverage of recent attacks on Kagan by conservatives, including the remarks of former Solicitor General Robert Bork. The Volokh Conspiracy’s Jonathan Adler revisits Bork’s confirmation hearings, comparing Kagan’s remark that those hearings were “the best thing that happened . . . to constitutional democracy” with the views of Justices John Paul Stevens and William Brennan.

In yesterday’s morning round-up, we linked to the recent C-SPAN poll on the Supreme Court.  Paul Bedard of U.S. News also reports on the poll, noting that most of those polled could not identify Elena Kagan as the President’s nominee to replace Justice Stevens.

Last year, the Supreme Court ordered a hearing to determine whether Georgia death-row inmate Troy Davis could “‘clearly establish’” his innocence.  That hearing took place in a Georgia courtroom; Eamon McNiff of ABC News, the Atlanta Journal Constitution’s Bill Rankin, and Amnesty International USA’s Laura Kagel (via the Huffington Post) all have coverage of the hearing.

The Court is expected to hand down its final opinions of the Term on Monday. The Volokh Conspiracy‘s Jonathan Adler briefly describes the four cases in which a decision is expected. Discussing the patent case Bilski v. Kappos at Patently-O, John Duffy argues that the petitioners should seek dismissal of the case under Supreme Court Rule 46 because they are almost certainly going to lose.

The Second Amendment case, McDonald v. City of Chicago, is attracting the most attention.  Based on opinion authorship patterns, Court watchers have speculated that Justice Alito may be writing the Court’s opinion.  Sentencing Law and Policy’s Douglas Berman suggests that as a former prosecutor, Justice Alito “may be more attentive than some other Justices to the potential echoes of [District of Columbia v. Heller] and now McDonald for state criminal justices systems.”


  • PrawfsBlawg’s Thomas Baker describes the Justices’ secret Cold War bunker.
  • At his eponymous blog, Josh Blackman notes that “[o]ver the last 4 terms, Justice Thomas has [dissented alone in] ten out of a total twenty-five 8–1 (and 7–1 in the case of recusals) [decisions].”