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Tuesday round-up

Coverage of yesterday’s decision in Humanitarian Law Project v. Holder dominates the headlines.  Most describe the opinion as a significant victory for the Obama administration; Michael Doyle of McClatchy calls it “the year’s most anticipated war-on-terror decision” and noted that the opinion ultimately “stressed how much deference the presidents and the Congress should receive in matters of war and peace.”  However, Lyle Denniston in his coverage at SCOTUSblog notes that the Court “still stopped short of providing an unqualified victory” for the government.  Adam Liptak of the New York Times reports that Justice Breyer took the “unusual” step of reading his dissent from the bench – which, as Jess Bravin of the Wall Street Journal notes, often signals a “particular discomfort with the majority.”  Bill Mears of CNN, David Savage of the L.A. Times, James Vicini of Reuters, Robert Barnes of the Washington Post, Nina Totenberg at NPR [audio], Warren Richey of the Christian Science Monitor, and Greg Stohr of Bloomberg also have coverage of the decision.

Commentators also began discussing the case’s effects on both the Court’s jurisprudence and the war on terror.  The editorial boards of the New York Times, L.A. Times, and Washington Post all criticize the opinion and urge Congress to respond to the decision with legislation; by contrast, the board at the New York Daily News enthusiastically endorses the outcome. At the Volokh Conspiracy, Eugene Volokh posits that the legal theory behind the opinion “points toward a broad definition of content discrimination” in the Court’s First Amendment philosophy.  At the Room for Debate Blog of the New York Times, a group of legal experts – including David Cole, who served as counsel to Humanitarian Law Project in the case – also discuss the ramifications of the decision.  And in a follow-up article at the Christian Science Monitor, Warren Richey notes the decision’s implications for international humanitarian workers, concluding that they will have to tread lightly to avoid culpability under the Court’s reading of the law.  At Balkinization, Mark Graber sharply criticizes the opinion, calling it “a remarkable perversion of traditional free speech doctrine.”

At SCOTUSblog, Kevin Russell recaps yesterday’s five-four decision in Rent-a-Center v. Jackson, as does Clifford Marks at the WSJ Law Blog.  Elsewhere in the blogosphere, though he reserves comment on the opinion as a matter of public policy, Aaron Bruhl of PrawfsBlawg describes the decision as “one logically reasonable interpretation of the precedents,” and he also suggests that, despite previous pro-arbitration opinions from liberal justices, the Court will revert to splitting along “the usual political lines” in future arbitration issues.  For the Chicago Tribune, Ameet Sachdev is more critical; in his view, the decision is “bad news” for both consumers and employees because the Court “removed an important check on the arbitration system.”

Finally, Brent Kendall of the Wall Street Journal, Jennifer Koons of the Greenwire blog of the New York Times, and Amy Howe and Laurie Williams of SCOTUSblog have early coverage of the opinion in Monsanto v. Geerston Seed Farms, the Court’s first case dealing with genetically modified crops.  In his coverage for the L.A. Times, James Oliphant notes the immediate criticism that Sen. Patrick Leahy and Rep. Dennis Kucinich leveled at the decision.  In an op-ed at the Huffington Post, Andrew Kimball of the Center for Food Safety claims a partial victory, emphasizing that the decision did not affect current restrictions on the use of GMO crops.

At Balkinization, Steve Vladeck discusses yesterday’s cert. grant in Virginia Office for Protection & Advocacy v. Reinhard, in which the Court granted cert. on Monday.  Vladeck posits that Reinhard and Sossamon v. Texas, which is also slated for argument next Term (disclosure:  Akin Gump and Howe & Russell represent the petitioner in Sossamon) may make the upcoming Term “the bellwether for the Roberts Court when it comes to either following or retreating from the Rehnquist Court” on issues relating to state sovereign immunity.

Douglas Berman of the Sentencing Law Blog and Sarah Miley of Jurist note yesterday’s cert. grant in Walker v. Martin.  At Crime and Consequences, Kent Scheidegger responds with enthusiasm to the Court’s decision to “clean up one of the messier areas of its jurisprudence” in taking up the case, and he expresses hope that the Court will rule “broadly and correctly,” in his view, to narrow and to simplify the litigation process.

Russ Bynum and Greg Bluestein of the AP (as reported in the Macon Telegraph, via the Sentencing Law Blog) report on the case of Troy Davis, a death-row inmate in Georgia for  whom the Supreme Court ordered a rare “innocence hearing.”  The hearing begins on Wednesday; the judge’s decision in the case, they note, could force the Court to eventually rule on the broader issue of whether death-row defendants can raise “a stand-alone claim that the client is innocent” on appeal.

The editorial board at the L.A. Times criticizes the Court’s decision last week to deny cert. in the “extraordinary rendition” case, Arar v. Ashcroft.  In the board’s view, the lower court opinion  “gave short shrift to the role of the judiciary in vindicating individual rights,” and it urges Congress to take action now that the Court has refused to do so.

With Elena Kagan’s confirmation hearing scheduled to begin next week, the Supreme Court press corps continues to examine the bevy of Kagan-related documents making the rounds.  Nathan Koppel of the WSJ Law Blog reports on the eventual resolution of the military recruiting controversy at the law school.  Bill Mears of CNN concludes an extensive review of Kagan’s White House messages (the release of which he describes as “every e-mailer’s nightmare) by noting her “sharp political insights” and “quick wit,” and he notes that the aggregated documents are allowing pundits to slowly form “a clear outline of her views on . . . hot-button issues.”

At Bloomberg, Greg Stohr examines how Kagan’s previous criticism of the Supreme Court confirmation process – which she has previously characterized as a “vapid and hollow charade” – could affect her own hearing.  And in an op-ed at the Washington Post, Donald Ayer argues against the idea that judges should be evaluated by their ability to mechanically apply the law to the instant case.  Because the Court considers not straightforward cases but difficult constitutional questions for which there are no easy answers, he argues that “[o]f greater relevance is a demonstrated history of good judgment and prudence, in life as in legal work.”

Although Kagan previously praised Robert Bork for his forthrightness during his confirmation hearings, Julie Hirschfield Davis of the AP reports that Bork has decided not to support Kagan’s confirmation. Ariane de Vogue of ABC News reports that Bork’s Wednesday press conference will highlight Kagan’s expressed admiration for former Israeli Supreme Court Chief Judge Aharon Barak as one of the major reasons he has decided to oppose her.

On the ideological front, Julie Hirschfield Davis of the AP writes that interest groups on both ends of the ideological spectrum are wary of Kagan’s position on abortion rights.  Also at the AP, Sharon Theimer notes that Solicitor General Kagan argued in favor of secrecy in four of the five FOIA cases in which she was involved, a position that Theimer characterizes as being “at odds with [the] promise of transparency” made by President Obama. At PrawfsBlawg, Adam Winkler writes that although Kagan may turn out to be a “progressive” justice, her work on the Court may not yield the type of progressivism hoped for by many on the left.  However, in an opinion piece at the U.S. News & World Report, Josh Gottheimer argues that progressives should rally around the Kagan nomination based on her aggressive work in Citizens United, her practical experience in the Clinton administration, her passion for public interest law, her work uniting the Harvard faculty, and her academic writing on executive power.


  • Lyle Denniston of SCOTUSblog discusses Monday’s notable grants and denials of cert.
  • Also at SCOTUSblog, Kevin Russell analyzes the decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp.
  • Amanda Becker of the Washington Post writes on the implications for attorneys’ ability to collect fees from low-income clients in cases against the government in the wake of last week’s decision in Astrue v. Ratliff.
  • Brent Kendall of the WSJ Law Blog and James Vicini of Reuters report on yesterday’s cert. grant in Chase Bank USA v. McCoy.
  • Greg Stohr and Jeff Feeley of Bloomberg, Bill Mears of CNN, and James Vicini of Reuters report on yesterday’s denial of cert. in Wyeth vs. Scroggin.