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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.

With Elena Kagan’s confirmation hearings scheduled to begin on Monday, the news and blogosphere are beginning to buzz in anticipation. At Slate, law professor (and former Supreme Court clerk) Sonja West predicts that the hearing will contain little “honesty” about concrete legal issues:  “The belief that it’s career suicide for a nominee to talk about any actual cases is a dubious one, but sadly it’s prevalent enough that such a discussion is unlikely.”  At USA Today, Joan Biskupic also previews the hearings, observing that confirmations are wont to become “political theater” and predicting key issues on which senators are likely to focus.

This morning, C-SPAN is releasing a new poll on the Supreme Court, largely testing public knowledge of the institution and its cases.  Sixty-eight percent of those polled indicate that they do remember seeing at least part of any confirmation hearing past; of that group, fifty-two percent say the Senators do an “okay job” of questioning, and an additional twelve percent say they do a “very good job.”

At the New York Times, Sheryl Gay Stolberg observes a shift in the Republicans’ public relations strategy on Kagan: now, rather than criticizing her lack of experience as a judge, they are portraying her as more “political operative” than lawyer, based on her work during the Clinton Administration.  In a speech on the Senate floor, for example, Senator Mitch McConnell  argued that documents from Kagan’s past “reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.”  The Associated Press reports that critics and supporters of Kagan are both stepping up their advocacy efforts.  In particular, Robert Bork, the only living Solicitor General who has not endorsed Kagan, wrote that Kagan’s admiration for former Israeli Supreme Court Justice Aharon Barak renders her unqualified to serve the Court.

Brookings fellow Melissa Rogers suggests, in a new paper and its summary on the Brookings website, that the “substitution of Kagan for Stevens could result in a qualitatively different vote” on First Amendment issues.  And in an opinion piece for the U.S. News & World Report, Ron Bonjean argues that conservatives should oppose Kagan because of her views on five subjects: the military, abortion, terrorist detainees, guns, and liberalism.

The decision in Holder v. Humanitarian Law Project, in which the Court upheld the constitutionality of the federal statute prohibiting “material support” for terrorism, continues to attract commentary.  At the new “Middle East Channel” at Foreign Policy online, Mohammad Fadel argues that “the Supreme Court based its holding not on First Amendment principles, but rather on the principle of judicial deference to the Executive and Congress in the context of foreign relations.”  Kenneth Jost at his Jost on Justice blog also concludes that “the Roberts Court is willing to put the First Amendment at some risk, trusting assurance from a government that since 9/11 has proved none too trustworthy on national security matters.”  But Mary Dudziak, writing at Balkinization, finds a silver lining: at least the ruling did not justify the statute by its usefulness in “wartime” (i.e., the war on terror); instead, the opinion focused on the independent danger posed by terrorist organizations. Jon Carroll at the San Francisco Chronicle goes further in his criticism of the Court, writing that “it is not known whether reason has much of a role” in the votes.  In the Huffington Post, Geoffrey Stone analyzes the decision and suggests that it runs contrary to the Court’s holding in Scales v. United States that Congress cannot criminalize Communist Party membership.   The New American also has commentary.

At the Examiner, Brian Irving notes that yesterday, on the fifth anniversary of the eminent domain decision Kelo v. New London, libertarian leaders nationwide issued a joint statement calling for the Court to reverse the decision in a future case and urging state governments to adopt laws eliminating eminent domain.  At the Volokh Conspiracy, Ilya Somin reflects at length on the “shortcomings” of the Kelo ruling.

Commentators continue to mull over last Thursday’s decision in Stop the Beach Renourishment. In commentary for the Baltimore Sun, attorney J. Wylie Donald notes that the opinion, while leaving state beach renourishment programs safe for now, leaves open questions about how states can respond to rising sea levels.  In an opinion piece at the Washington Times, Douglas Smith criticizes the Court for failing to enforce the “plain language” of the Constitution by declining to reach the question of whether a court’s decision can constitute a “taking.” In his Time piece on the decision, Adam Cohen summarizes other state laws regulating public access to beaches, explaining that, unlike in the Stop the Beach case, “property-rights disputes are generally decided under state law.”

James Gaitis at the Disputing blog and David Gans at the Center for Constitutional Accountability’s Text & History blog both comment at length on Monday’s five-four arbitration decision in Rent-A-Center v. Jackson.


  • The Sunlight Foundation has launched a new feature called “Elena’s Inbox” that allows users to easily search through the emails released by the Clinton Library (thanks to The Caucus blog of the New York Times for the link).
  • Politico reports that former Acting Solicitor General Walter Dellinger predicted on Tuesday in a public debate that Roe v. Wade will eventually be overturned because “it is such a symbol of a kind of jurisprudence that conservatives have set themselves in opposition to.”
  • Lyle Denniston of SCOTUSblog reports that a case challenging the moratorium on new deepwater oil drilling in the Gulf of Mexico “appears destined ultimately for the Supreme Court.”
  • James Oliphant at the Los Angeles Times has an update on the DISCLOSE Act, the bill fashioned by Congress to curb the effects of the Citizens United ruling on corporate campaign financing: the House of Representatives is preparing to vote on it today.
  • Josh Blackman predicts which Justices will write the remaining high-profile cases for the Term.
  • Finally, the Associated Press has a story on a group of thirty social studies teaches from across the country who saw the Supreme Court for the first time while on vacation.  For one teacher, “her first impression was that it was much smaller than she expected.”