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Thursday 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.

At the Washington Post, op-ed columnist E.J. Dionne discusses the “remarkable” commencement speech given by retired Justice David Souter last week at Harvard — a speech that, in Dionne’s view, “should become the philosophical shot heard ’round the country” for its tacit critique of originalism, a method of constitutional interpretation favored by many conservatives.

Tuesday’s opinions are still generating commentary, with the Miranda rights case Berghuis v. Thompkins taking the greatest share.

Kenneth Jost, at his blog Jost on Justice, argues that the ruling retreats from the standard established in the original 1966 Miranda v. Arizona case — that a suspect must “knowingly and intelligently” waive his right to refrain from speaking to the police without a lawyer – by permitting police to question a suspect who merely remains quiet. Using similar language, Adam Cohen of Time characterizes Tuesday’s decision as “quietly chipping away” at the Miranda precedent, while the Baltimore Sun’s editorial board describes it as continuing “a recent trend of chipping away the protections afforded by the landmark Miranda decision.” In his column for the Chicago Tribune, Steve Chapman criticizes the opinion as “impossible to square with” the “psychological reality of police interrogation” in Miranda.  And the L.A. Times editorial board chides the Court for failing to at least clarify that police must warn suspects that, if they want to assert their rights under Miranda, they must say so at the outset of an interrogation.  Sherrilyn Ifill at The Root surmises that Justice Sotomayor, the author of the dissent, drew on her “real-world understanding of the pressures of interrogation in custody and the incentives of police.”  Given the significance of the ruling, Ifill predicts that “we may well expect a conversation on the scope of Miranda to make an appearance again” soon – at Elena Kagan’s confirmation hearings.  Finally, Emily Berman at CNN sees a “silver lining” in Thompkins: by demonstrating that the Court is itself willing to curb the right to silence, it “should derail Congress’ recent calls to enact an unnecessary, likely overbroad and possibly unconstitutional statute further restricting Miranda’s requirements.”

The Court also held on Tuesday, in Samantar v. Yousuf, that a former Somali defense minister living in this country cannot claim immunity under the Foreign Sovereign Immunities Act from a lawsuit for human rights violations he allegedly committed in Somalia.  [Disclosure:  Akin Gump and Howe & Russell represented the respondent in the case.]  At the Daily Journal (via How Appealing Extra), Lawrence Hurley notes that the future of the case remains unclear, because the former defense minister may be able to assert other kinds of immunity on remand.

Yesterday forty-eight states – all save Virginia and Maine — filed an amicus brief in next Term’s case Snyder v. Phelps, in support of a father suing an anti-gay minister for protesting at his son’s funeral (for coverage of the amicus brief, see yesterday’s round-up).  The Virginia Politics blog at the Washington Post notes that Virginia Attorney General Ken Cuccinelli declined to join the brief out of concern that a verdict in favor of the family would undermine the First Amendment.  Another post on the same blog reports that Cuccinelli’s decision has drawn criticism from a variety of sources.

Coverage of the Kagan nomination continues.  At PrawfsBlawg, Eduaro Penalver compares the Kagan and Sonia Sotomayor nominations, concluding that Kagan’s has been “far less controversial,” given the uproar over Sotomayor’s “wise Latina” remark.  Similarly, Sheryl Gay Stolberg at the New York Times deems the Kagan confirmation thus far a “Knock Down, Drag Out – Yawn”; if a controversy does arise, she anticipates that it will happen when the Clinton Library releases documents from Kagan’s time at the White House (expected this week).


  • At ACSblog, Anthony Renzo discusses the reasoning behind the majority opinion and dissent in the juvenile life-without-parole case Graham v. Florida.  He concludes that “[p]reserving some glimmer of hope for minors who could spend the rest of their lives in prison seems a small price to pay for not deferring to the opinions of 18th Century slave owners on what punishments transgress Eighth Amendment standards of humane treatment.”
  • ALM announces the launch of a new daily e-newsletter, the “Supreme Court Insider,” which will carry writing by National Law Journal legal reporters like Tony Mauro.  Register for free access here.
  • A recent FindLaw poll finds that the two-thirds of Americans cannot name even one Supreme Court Justice.  Insofar as the Justices can be named at all, Clarence Thomas is known most often (19%).  The results are reproduced at the Volokh Conspiracy.