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Monday round-up

The weekend began with what is expected to be the last set of documents from Elena Kagan before the vote on her confirmation: the Senate Judiciary Committee released her answers to post-hearing questions submitted by six of the seven Republican Senators.  (Senator Hatch did not participate.)  Jess Bravin of the Wall Street Journal reports that, in her responses, “Elena Kagan rejected several influential liberal legal theories . . . distancing herself from intellectual movements conservatives have criticized,” including legal realism and the critical legal studies movement.  Kagan named the most influential cases from the last twenty-five years (including Grutter v. Bollinger and Planned Parenthood v. Casey), the worst-reasoned opinion of the last fifty (Korematsu, stretching the timeline a bit), and the most influential modern Justice (Oliver Wendell Holmes).  Josh Gerstein also has coverage of Kagan’s responses in Politico.  At Fox News, Lee Ross focuses on Kagan’s answers to questions regarding the federal Defense of Marriage Act, including her acknowledgement that she would recuse herself from a California suit challenging that law if it were to reach the Supreme Court.  In the Washington Post, R. Jeffrey Smith sums up Kagan’s responses, writing that “[i]n ritual form, her answers . . . were finely sanded to avoid any clamor.” 

On Thursday, Justice Ruth Bader Ginsburg spoke at the Aspen Ideas Festival: she expressed her excitement at the prospect of Elena Kagan joining the Court, and her confidence that Roe v. Wade would never be overturned.  “We will never go back to the way it once was,” the Justice said.  Manu Raju of  Politico, Nathan Koppel of the Wall Street Journal Law Blog, and Tony Mauro of the Blog of Legal Times all have coverage. 


  •  In the Washington Post, Robert Barnes looks back at Justice Sotomayor’s first year on the Court, concluding that “the court’s first Hispanic member, and only its third woman, has hardly had the typical first-termer’s experience.”
  • Mark Sherman of the Associated Press discusses one effect of Justice Stevens’ retirement:  a shift in the order of seniority that could make Justice Kennedy the senior Justice in the majority, giving him the “power to choose the author of some court opinions, an authority that has historically been used . . . to subtly shape a ruling or preserve a tenuous majority.”
  • At How Appealing, Howard Bashman reprints an article by Lawrence Hurley in the Daily Journal of California. Hurley argues that “[o]ne of the most distinctive features of the U.S. Supreme Court’s just completed term was the justices’ unusual willingness to intercede at the early stages of controversial cases through their power to stay lower court rulings.”
  • In the York Daily Record, Jeff Frantz continues his local reporting on Snyder v. Phelps, the upcoming case involving protests at military funerals.  Frantz notes that the lawyers for Phelps are preparing to argue that because “Albert Snyder voluntarily gave interviews after his son’s 2006 death in Iraq and funeral, and because he discussed issues important to the public, he should be viewed as a public figure, not a private figure” under the Court’s First Amendment doctrine.
  • In a column in Forbes, Lee Sheppard offers her objections to the Kagan nomination, predicting that “Kagan will become yet another Justice too willing to interfere with necessary administrative decision-making.”
  • CSPAN broadcasts a panel put on by the Heritage Foundation, featuring former Solicitor General Gregory Garre and others reviewing notable cases from the last Supreme Court Term.