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Tuesday round-up

It was a busy morning yesterday at the Court, which handed down four opinions.  However, as Tony Mauro of the BLT noted in his coverage of the day’s proceedings, “[n]one of the marquee cases that would make big headlines” – such as Bilski v. Kappos, McDonald v. Chicago, or Christian Legal Society v. Martinez – were decided yesterday.  Thus, as Ashby Jones of the WSJ Law Blog notes in his coverage, the Court’s next two weeks will be exceptionally busy.

Several commentators, including Warren Richey of the Christian Science Monitor, noted the ideologically “unusual lineup of justices” in yesterday’s opinion in Dolan v. United States.  [Disclosure:  Akin Gump and Howe & Russell represented the petitioner in Dolan.]  Jonathan Adler of the Volokh Conspiracy observes that although the majority consists of the five junior-most Justices, he does not see “how [tenure] would influence the respective justices’ view of the case.”  And Douglas Berman of the Sentencing Law Blog concludes that in sentencing cases in particular, the ways in which “the justices will vote is so unpredictable.” Hillary Stemple of the Jurist also has coverage.

Warren Richey of the Christian Science Monitor and Dwyer Arce of the Jurist both have coverage of the decision in Holland v. Florida, which Tony Mauro of the National Law Journal characterizes as a “rare victory” for death penalty defendants and their advocates.  However, Kent Scheidegger of Crime and Consequences laments the lack of objective standards for determining threshold levels of attorney negligence, and he urges the Court to issue a clearer test for the issue next Term.

At the Sentencing Law Blog, Douglas Berman and Margaret Colgate Love discuss yesterday’s decision in Carachuri-Rosendo v. Holder.  In their view, the decision is significant because the Court “unanimously backs away from constiutionalizing recidivist sentencing.”  Adam Liptak of the New York Times, Nina Totenberg of NPR, and Hillary Stemple of the Jurist also have coverage of the case.

The editorial board of the New York Times applauds the Court’s Carachuri-Rosendo and Holland decisions, calling empathy the “recently vilified but still vital heartbeat of the legal system.”  The board concludes that “the outcome of Monday’s cases suggests that even on a conservative court, the letter of the law has its limits.”

Among the cases that the Court agreed to hear yesterday, most media outlets focused on Schwarzenegger v. Plata.  Lyle Denniston of SCOTUSblog wrote in his coverage that the merits hearing “could produce a major ruling of federal judges’ power to order prison releases under the Prison Litigation Reform Act of 1996.”           Howard Mintz of the San Jose Mercury-News calls the decision to review the case “a crucial test for state prison systems across the country,” while David Savage of the L.A. Times characterizes the mere decision to hear the case as itself a “victory for the governor and state prison officials.”  Bob Egelko of the San Francisco Chronicle, Douglas Berman of the Sentencing Law Blog, Warren Richey of the Christian Science Monitor, Greg Stohr of Bloomberg, and James Vicini of Reuters also have coverage of the story.

At the Christian Science Monitor, Mark Guarino previews possible next steps by the City of Chicago if – as expected –  the Court overturns its handgun ban this month, sending it “back to the drawing board to find a new balance between gun rights and public safety”; Guarino also interviews advocates of other gun-safety measures, such as stricter background checks and restrictions on permissible carry areas.

Brandon Bartels of Concurring Opinions reviews Justice O’Connor’s recent op-ed in the New York Times in which she continues to criticize judicial elections.  Bartels deems her arguments “strong and persuasive,” but he notes that a recently published book, In Defense of Judicial Elections, may provide an alternative perspective.  He concludes that no matter the judicial selection system in place, “we can be assured of one thing: judicial selection is always a political process.

Monday’s nomination coverage was relatively light.  At ACSblog, Erin Louise Palmer argues that  although Kagan’s confirmation may not change the Court’s ideological balance and she is likely to vote to uphold the constitutionality of health care reform, it still remains important for senators to question her on health care and similar issues to “provide a glimpse of [her]…broader judicial decision-making philosophy.”  At the Huffington Post, Sam Stein reports that the pro-choice group NARAL “seems genuinely satisfied” with Kagan’s nomination after reviewing her written record.  Peter Baker of the New York Times chronicles Kagan’s extensive policy battles with Christopher Edley, Jr. when the two worked together in the Clinton Administration, and he details Kagan’s willingness to compromise on ideology to “nudge the party to the center after a generation of electoral losses.”

In an op-ed at the Wall Street Journal, John McGinnis and Michael Rappaport criticize Justice Souter’s Harvard commencement address.  Applying the Justice’s preferred method of constitutional interpretation to Plessy v. Ferguson, the authors conclude that the same logic “permitted justices to create a Constitution of their own contrivance in the service of injustice” in the case.  Jonathan Adler of the Volokh Conspiracy also has coverage of the McGinnis and Rappaport piece.

Jeff Jeffrey of the BLT reports that the D.C. Bar Association formally honored Laurence Fishburne, the star of the one-man play Thurgood, at a reception after the Sunday night showing.  Fishburne thanked the attorneys present “for continuing to ‘use the law the way Marshall teaches us.’”


  • Sarah Miley of the Jurist reports on the unanimous opinion in Astrue v. Ratliff.
  • Several outlets also reported on the Court’s decision to deny cert. in Arar v. Ashcroft, including Bill Mears of CNN, ACSblog, and Warren Richey of the Christian Science Monitor.
  • Daniel Suddeath of the News and Tribune (IN) and the AP both have coverage of the denial of cert. in New Albany v. New Albany DVD.
  • Brent Kendall of the Wall Street Journal and James Vicini of Reuters note Monday’s decision to grant cert. in Matrixx Initiatives v. Siracusano.  Ken Alltucker of the Arizona Republic suggests that the ruling could be significant in the pharmaceutical industry if it addresses “when companies should disclose to investors reports about adverse side effects” from users of a product.
  • The editorial board at the Philadelphia Inquirer criticizes last week’s order in McComish v. Bennett, the Arizona campaign-finance case.  writing that the Court “is on a path to chilling free speech because it is discouraging candidates of lesser means from getting involved in democracy.”
  • In the Opinionator blog at the New York Times, Stanley Fish favorably reviews Brian Tamanaha’s recent book on judicial philosophy, Beyond the Formalist-Realist Divide: The Role of Politics in Judging.