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Wednesday 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.

Upstaging the ongoing Kagan coverage for at least one day, the Supreme Court released five decisions and granted cert. in one case yesterday.  Of those cases, the most headline-grabbing proved to be Berghuis v. Thompkins, in which the Court held, by a vote of five to four, that suspects must explicitly tell police that they want to be silent to invoke Miranda protections during criminal investigations. Justice Sotomayor’s dissent was longer than the majority opinion and drew particular notice. The L.A. Times’s David Savage describes it as her “first strongly written dissent,” while Tony Mauro of the National Law Journal characterizes it as perhaps “her most important writing since joining the Court.” Kent Scheidegger at Crime and Consequences reacts to the dissent this way: “Justice Sotomayor criticized the majority for going further than needed to decide the case before it. True, but it is kind of odd to make that criticism in a Miranda case, as Miranda itself is the exemplar of going further than necessary to decide the case.” The New York Times editorial board criticizes the Court’s decision for “not provid[ing] much clarity,” while Steve Vladeck at Balkinization wonders whether “Miranda’s applicability to terrorism cases is one of the (perhaps many) elephants in this particular room.”

At the Volokh Conspiracy, Jonathan Adler observes that Thompkins is the fifth Sixth Circuit habeas case that the Supreme Court has reversed this Term, adding that “it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.” Over at Think Progress’s The Wonk Room blog, Ian Millhiser contends that “Thompkins joins a long line of Roberts Court decisions that replaced well-established precedents with conservative ideology.” SCOTUSblog, the Washington Post, NPR (also here), the Wall Street Journal, the New York Times, USA Today, Bloomberg, the Christian Science Monitor, the Detroit Free Press, Jan Crawford’s blog at CBS News, Courthouse News Service, and ACSblog all have full coverage of the decision in Thompkins.

The decision in Samantar v. Yousuf, in which the Court unanimously held that a former Somali official could not use the Foreign Sovereign Immunity Act to shield himself from suit, also drew significant attention. [Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case.]  At Opinio Juris, Duncan Hollis offers his initial reaction to the ruling: “[H]uman rights activists should be breathing a huge sigh of relief tonight. The Court had a chance here to gut the [Alien Tort Statute], and it declined to do so.” Based on the four separate opinions in the case, Michael Dorf of FindLaw suggests that “[w]hen the Justices cannot find room to disagree on the result of a case, they will find other ways to argue with one another.” SCOTUSblog, the L.A. Times, the Washington Post, Courthouse News Service, Reuters, and Bloomberg have further coverage of the decision.

The ruling in Carr v. United States, a case involving the retroactive application of the Sex Offender Registration and Notification Act (SORNA), generated a six-to-three split among the Justices that did not follow traditional ideological lines. Justice Sotomayor wrote the majority opinion, joined by the Chief Justice and Justices Stevens, Scalia (mostly), Kennedy, and Breyer—leaving Justices Thomas, Ginsburg, and Alito in dissent. Jonathan Adler of the Volokh Conspiracy and Doug Berman of Sentencing Law and Policy both took note of this line-up, with Berman observing that the case split the Court’s two former prosecutors (Alito and Sotomayor), the Court’s two women, and Justice Scalia from the Chief Justice (at least on the use of legislative history). In another post at Sentencing Law and Policy, Berman writes that the Thompkins and Carr voting patterns “confirm[] my impression that the ‘classic’ 5-4 split votes in SCOTUS criminal justice cases emerge[] principally when the Court is reviewing habeas decisions reviewing state convictions.  But in most other criminal cases lately, such a 5-4 split seems rare.” The Christian Science Monitor, UPI, and Courthouse News Service also have full reports on Carr. [Disclosure: my law school clinic represented the petitioner in Carr v. United States.]

For coverage of the other two decisions released yesterday— Levin v. Commerce Energy and Alabama v. North Carolina—see Constitutional Law Prof Blog (Levin), the Raleigh News & Observer (Alabama), and Courthouse News Service (both).

The Court’s grant of cert. in Mayo Foundation for Medical Education and Research v. United States has also garnered media interest. At issue in the case is whether medical residents should be treated as students or employees when collecting Social Security taxes. The Chronicle of Higher Education reports that “[w]hat’s at stake is as much as $700-million that medical colleges pay annually in taxes to the federal government on behalf of their residents.” AOL News, the Wall Street Journal, and Courthouse News Service have further coverage of the cert. grant.

Several other orders were of interest to Court watchers, as well. As noted by Courthouse News Service and CNN’s Bill Mears, the Justices refused to block the enforcement of Arizona’s “matching funds” law that provides public subsidies for Arizona electoral candidates who agree to forgo private donations. Lyle Denniston of SCOTUSblog distilled a “tip for appellate lawyers” from the order: make it clear that you plan to appeal to the Supreme Court when you ask for emergency relief. The Court also denied cert. in a death penalty appeal that raised the issue of “juror misconduct,” a denial that the Associated Press (via the L.A. Times), WAVE, and WOWK all cover. (The case was mentioned in yesterday’s round-up, as well.) The Associated Press (via the L.A. Times) has a story on another death penalty appeal that was denied, over the defendant’s claim of innocence and unexamined exonerating evidence. The Court also denied a petition in a case involving Kern County, California’s ban on dumping treated human waste, an order reported by McClatchy’s Michael Doyle and the Associated Press (via the San Jose Mercury News).

Amidst all of the decisions and orders, the WSJ Law Blog, the Blog of LegalTimes, and IPWatchdog all noted that yesterday’s decisions did not include Bilski v. Kappos, a high-profile patent law case that was argued in November.

In other Court action, forty-eight states and the District of Columbia filed an amicus brief in Snyder v. Phelps, the funeral protesting case.  The states—with only Virginia and Maine excluded—support the father who brought suit against anti-gay protesters at his son’s military funeral. The Associated Press (via the Washington Post and the Kansas City Star) and the L.A.Times’s L.A. Now blog have the story. At the Volokh Conspiracy, Eugene Volokh takes issue with an assertion in the brief and draws a connection to Citizens United.

Two polls about the Court were in the news yesterday, as well. First, PRNewswire reports the results of a FindLaw poll on public familiarity with the Supreme Court. The findings include that sixty-five percent of Americans cannot name a single Justice, that only one percent can name all nine Justices, and that Justice Thomas’s name is the most widely known (by nineteen percent of respondents). New York Magazine’s Daily Intel blog and FireDogLake comment on these results. The second poll comes from CNN and finds that fifty-four percent of Americans want the Senate to confirm Elena Kagan’s nomination. As The Hill’s Briefing Room blog points out, a majority (fifty-two percent) also indicates that they are less likely to support her because she has never been a judge.

Turning to the Kagan nomination, the Associated Press (via the Washington Post) has a story on Kagan’s family members, a “family tree richly populated with individuals of great determination, intelligence and activism.” The Boston Globe reports that Republican Senators Lindsey Graham, Susan Collins, and Richard Lugar have praised Kagan and suggests that she might be confirmed “with support from many members of the minority party.” Even so, the ranking Republican on the Judiciary Committee, Jeff Sessions, has an opinion piece in the Kansas City Star calling Kagan’s record on military recruiting “shameful.”

As the hearings near, researchers at Bill Clinton’s presidential library are “working overtime to produce more than 160,000 pages of documents,” according to the Associated Press (via the Washington Post). Neither President Obama nor President Clinton has sought to withhold any documents, but as Jonathan Adler notes at the Volokh Conspiracy, “that does not mean there will be all that much of interest.” Nonetheless, Kent Scheidegger of Crime and Consequences, is “particularly interested in knowing whether Ms. Kagan had anything to say on the habeas reform portion [of the] Antiterrorism and Effective Death Penalty Act of 1996.”


  • At Politics Daily, Andrew Cohen praises retired Justice David Souter’s commencement speech at Harvard, calling it a “blessing of a speech,” an “extraordinary gift,” and worthy of becoming a “vital part of our ageless constitutional conversation.”
  • Adam Liptak has a story in the New York Times on the Justices’ various baseball allegiances.
  • On the subject of baseball, Aaron Zelinsky argues in the Huffington Post that “[Elena] Kagan’s confirmation hearing presents an opportunity to set the record straight: The Judge-Umpire analogy should be benched immediately.” Also at the Huffington Post, Robert Benson has a piece decrying the image of judging embodied in the judge-umpire analogy.
  • At the Blog of LegalTimes, Tony Mauro reports on the web launch of Liberty Central, a conservative organization being spearheaded by Justice Thomas’s wife Virginia. Doug Berman of Sentencing Law and Policy looked at the site and reviewed it this way: “Troublesomely, I could not find any information of any kind about the drug war or mass incarceration anywhere on the otherwise impressive Liberty Central website.”
  • Todd Collins and Gibbs Knotts have an op-ed in the Atlanta Journal-Constitution on what “true diversity” would mean at the Supreme Court.
  • The Bronx Times reports that the Bronxdale Houses, where Justice Sotomayor spent much of her childhood, as well as the Bronxdale Community Center, will be renamed in her honor.
  • The AFP reports on a cert. petition filed yesterday in a sexual harassment case involving a top official of the United Nations. If the Court takes the case, “[i]t would mark the first time the high court intervenes on the question of diplomatic immunity granted to top UN officials.”
  • A prosecutor, a police officer, and a prison warden have an op-ed in the L.A. Times supporting a California bill that would extend the holding of Graham v. Florida to homicide, as well as nonhomicide, crimes.
  • Chris Good has a piece in the Atlantic on the Federal Election Commission’s forthcoming post-Citizens United regulations.
  • Ann Althouse has a response to Cliff Sloan’s tribute to Justice Stevens on SCOTUSblog yesterday.
  • Joan Biskupic has a post on her blog Court Beat about how Chief Justice Rehnquist “lived large and beyond his legal interests.”
  • On the Legal Theory Blog, Lawrence Solum takes note of a new paper on the diversity of legal training of the Justices over time.