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Tuesday 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.

Commentators again took a break from nomination coverage as the Court issued three opinions – and a rare certified question – on Monday morning.  Marcia Coyle at the BLT reports on the day’s proceedings, noting that though perhaps “none of the three rulings…is likely to make front page news, they answer questions of practical significance to litigators.”

At the Sentencing Law Blog, Douglas Berman discusses the “fascinating sentencing dog[] that did not end up barking” in Monday’s Barber v. Thomas opinion.  Berman describes the votes by Justices Sotomayor – who voted in favor of the government – and Kennedy – who voted in favor of the defendant – as particularly “noteworthy.”  At CNN, Bill Mears has coverage of the decision in Krupski v. Costa Crociere, noting that in announcing the decision from the bench Justice Sotomayor had to make a good-natured appeal for help from her Italian-American colleague, Justice Scalia, to pronounce the respondent’s name.  Kevin Russell of SCOTUSblog and Gene Sloan of USA Today also cover the Court’s decision in the case.

Also at the Sentencing Law Blog, Berman examines the question that the Court certified to the Montana Supreme Court in United States v. Juvenile Male; Lyle Denniston of SCOTUSblog also covers the Court’s unusual order.  Berman expresses surprise that the Court “dusted off” this little-used procedure and concludes that “the early Roberts Court is already…a lot more interesting and unpredictable than was the late Rehnquist Court.” And in a separate post, Berman concludes that the Court’s action is indicative of the justices’ “continued concern with at least some aspects of…federal SORNA provisions.”

Also at SCOTUSblog, Lyle Denniston summarizes the briefs filed by both sides in the ongoing dispute over the dissemination of public funds for political campaigns in Arizona, McComish v. Bennett. As Denniston noted in an afternoon update, the challenges to the election scheme filed their reply brief on Monday afternoon, thereby allowing the Court to act at any time on the request to withhold subsidy funds.  In its coverage, the ACS Blog notes that “public financing systems like Arizona’s [are] one way to counter the enormous flow of corporate dollars into elections following…Citizens United v. FEC.”

At the School Law Blog at Education Week (via How Appealing), Mark Walsh covers the Court’s denial of cert. in Pontiac School District v. Duncan.  Walsh notes that then-Solicitor General Kagan filed a brief in May in which she urged the Court to deny certiorari.  Greg Stohr of Bloomberg also has coverage.  Meanwhile, Ben Conery of the Washington Times, Pete Williams of MSNBC, and the AP all cover Monday’s denial of cert. in Rodearmel v. Clinton.

Awaiting the Court’s opinion in McDonald v. Chicago, the editorial board at the Chicago Tribune – anticipating a decision in favor of the petitioners – urges the City to adopt “some new and sensible legislating” to protect its citizens from gun violence.  At the Huffington Post, Lonna Saunders examines the possibility that the Court in McDonald could both incorporate the Second Amendment as to the states and uphold Chicago’s gun ordinance in its eventual opinion.

In nomination news, at Politico, Manu Raju and Glenn Thrush examine how the Kagan nomination has managed to avoid significant controversy thus far, noting that Republican senators “have found little…to make a major fuss about” as they focus on other issues of national importance.  Though the authors acknowledge that this could change pending review of the recently released documents from her years in the Clinton administration, they conclude that Kagan is “not likely to face a major fight.”  At Forbes, Victoria Pynchon echoes earlier reports that the first set of these documents are indicative of Kagan’s “pragmatic mindset” and her “willingness to negotiate across partisan and ideological lines.” And at the New Yorker, Hendrik Hertzberg conducts a lengthy review of Kagan’s much-discussed undergraduate thesis, which he calls a “remarkable accomplishment” and a “politically sophisticated” work.  Hertzberg also concludes that the thesis is not evidence that Kagan is a socialist, as some have suggested, but instead merely shows that she “had some sympathy for the main impulses that motivated most of the American socialists of a century ago.”

On Capitol Hill, John Stanton of Roll Call reports on Senator Leahy’s comments on Monday, in which he accused Republican senators of imposing a “judicial litmus test” and demanding “justices who will guarantee the results they want.”  J. Taylor Rushing of The Hill also has coverage of the senator’s comments and notes his conclusion that most Republican senators will vote against Kagan’s confirmation.

Finally, at the Washington Post, Brett Zongker reports on the Kennedy Center showing of the one-man play, “Thurgood.”  Zongker calls the Washington debut of the play, which stars Laurence Fishburne and earned a Tony Award during its 2008 run on Broadway, a “hugely symbolic event.”  Sophie Gilbert of the Washingtonian and Barbara MacKay of the Washington Examiner also review the play positively.


  • Ashby Jones of the WSJ Law Blog previews the Term’s last few weeks as Court-watchers continue to await opinions in Bilski v. Kappos, McDonald, and the three “honest services” fraud cases argued this Term.
  • At the Kansas City Star, Mary Sanchez applauds Justice Sotomayor’s “scathing” dissent in Berghuis v. Thompkins as a “warning flare” against what Sanchez calls “a series of High Court rulings…that have effectively nipped away at the Miranda ruling.”
  • In an opinion piece at the Christian Science Monitor, David Rose concludes a discussion of legal philosophy by urging senators to ask Kagan about judges using their position to “advance social justice…from the bench.”
  • Louis Sahagun of the L.A. Times reports on the next steps in California after the Court denied cert. in City of Los Angeles v. County of Kern.
  • Finally, in the spirit of the upcoming World Cup, Gerard Magliocca at Concurring Opinions ponders the ways in which the role of a Supreme Court justice might be more akin to that of a soccer referee than to a baseball umpire.