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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.

The Court yesterday temporarily blocked Arizona from providing additional “matching funds” to candidates running for state office who are already receiving public financial support. Lyle Denniston covered the Court’s order for this blog; Adam Liptak at the New York Times, Rick Hasen at Election Law Blog, Robert Barnes of the Washington Post, David Savage and Jennifer Martinez of the Los Angeles Times, JURIST, and Courthouse News Service also have coverage.

Aside from the coverage of the Court’s order in the Arizona case, the media’s focus has largely returned to Elena Kagan’s nomination. In an essay at Slate, Doug Kendall and Jim Ryan suggest that Kagan should use the confirmation process as an opportunity to address her views about the Constitution and to highlight her commitment to upholding more recent amendments as well as the original document. At NPR, Nina Totenberg has a detailed analysis of Kagan’s role in the controversy over military recruiting at Harvard.

David Ingram reports at the BLT on recent remarks by Walter Dellinger, a former Acting Solicitor General; Dellinger asserted that Kagan is not the same kind of unknown “stealth candidate” that David Souter was when he was confirmed in 1990. In addition, the National Review’s Ed Whelan has two posts today on Kagan:  one revisits her discussion, during her 2009 confirmation hearing for her position as Solicitor General, of the possibility of a constitutional right to marriage, while the other discusses her membership in the Society of American Law Teachers.  And at the WSJ Law Blog, Jess Bravin notes that Kagan’s Supreme Court clerkship brought her into contact with the legal troubles of a number of high-profile personalities, including J.D. Salinger, Lionel Richie, and Larry Flynt.

Following up on this week’s rulings, Elizabeth Wydra argues at the Constitutional Accountability Center’s Text and History blog that Monday’s opinion in Lanning – in which Justice Scalia offered a lone dissent – reflects the “fundamental fallacy” of the Justice’s belief in a strict textualist interpretation of the Constitution.

Steven Shapiro, the legal director of the ACLU, has an opinion piece on last week’s Berghuis v. Thompkins opinion at the Wall Street Journal. In the essay, Shapiro posits that the ruling – which stipulates that suspects must verbally indicate their intent to remain silent – “seriously undermines the court’s landmark ruling in Miranda v. Arizona, which has helped to preserve the constitutional right to remain silent for more than four decades.” Also at the Wall Street Journal, Berkeley professor and former DOJ official John Yoo disagrees, opining that the post-9/11 world necessitates thinking “outside the criminal-justice framework.”


  • At Concurring Opinions, Gerard Magliocca ponders Justice Oliver Wendell Holmes’ use of the term “bad law.”
  • At Slate, Radley Balko discusses Skinner v. Switzer, which will be argued next Term; he argues that in Skinner’s case – as in all death-penalty cases – all available biological evidence should be submitted for DNA testing.