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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.

As journalists and commentators continue to mull over recent action at the Court, a letter of support from sixty-nine law school deans emerged as the latest development in Elena Kagan’s nomination and confirmation proceedings. The letter, addressed to the ranking Democrat and Republican on the Senate Judiciary Committee, describes Kagan as someone who “excels along all relevant dimensions desired in a Supreme Court Justice.” The group of deans, led by Stanford’s Larry Kramer, represents over a third of the country’s law school deans. The Washington Post, CNN, the Christian Science Monitor, the New York Times’s The Caucus blog, and the Associated Press (via the Washington Post) all have coverage of the letter. Meanwhile, the Washington Independent has a video from an Aspen Institute panel evaluating Kagan’s chances of confirmation and what viewers can expect from her confirmation hearings. SCOTUSblog has also started a series of “issue briefings” that will analyze the issues most likely to attract significant attention during the hearings.

The gradually emerging debate over Justice Souter’s Harvard commencement address has drawn in a few more participants. At the Volokh Conspiracy, David Bernstein examines the social and political context of Plessy v. Ferguson and contends that “Souter’s history of the case is off.” And in an op-ed for USA Today, David Rivkin and Lee Casey write that “Souter’s candor [in the speech] is commendable but also genuinely troubling—the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses.” Rivkin and Casey look to Plessy themselves to make the point that “bad constitutional decisions, far from being the result of the Constitution’s frailty, are caused by the frailties of judges who depart from it.”


  • In USA Today, Joan Biskupic has a report on President Obama’s judicial nominees. Biskupic notes that while Obama “is setting records for the number of women and minorities nominated to lifetime appointments,” “his administration has been thwarted by unprecedented delays.”
  • The New York Times editorial board describes the Court’s denial of cert. in Arar v. Ashcroft as “disgraceful” and “a bitterly disappointing abdication of its duty to hold officials accountable for illegal acts.”
  • At Slate, Dahlia Lithwick provides an excerpt of her report for Dan Rather Reports on the practical impact of last Term’s decision in Melendez-Diaz v. Massachusetts, a decision requiring “crime lab technicians . . . to testify in criminal trials far more often than they used to.”
  • At, Daniel Fisher discusses Monday’s cert. grant in Matrixx Initiatives v. Siracusano, which presents “the tricky question of . . . just how much a company must disclose to investors—even when the information appears significant only in hindsight.” Fisher draws a connection to BP’s decisions about disseminating information regarding the oil spill in the Gulf of Mexico.
  • Kristin Goss has an op-ed in the Atlanta Journal-Constitution on the Second Amendment case pending before the Court, McDonald v. City of Chicago.   If, as seems likely, the petitioners prevail, Goss hopes their victory will “open the door for a long-overdue public reckoning about the place of firearms in civil society.” (Josh Blackman also speculates on McDonald, predicting that Chief Justice Roberts is authoring the decision.)
  • The Atlantic’s Chris Good has a post on a bet Justice Scalia made in January with Rahm Emanuel’s brother Ezekiel. Justice Scalia, having wagered that a health care bill would not pass Congress, had to pay up by taking Emanuel to dinner.