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Monday round-up

This post is a round-up of weekend news and commentary about the Court.  A round-up of coverage from today will appear tomorrow morning.

Adam Liptak has two new features on the Court in yesterday’s New York Times.  In the longer one, he reports on a recent analysis by political scientists who conduct empirical research on the Court.  According to that research, the Court has moved to the right during the tenure of Chief Justice Roberts, and especially after the replacement of Justice O’Connor with Justice Alito in 2006.  At her eponymous blog, Ann Althouse is skeptical of the methodology that the political scientists use to classify cases by ideology.  At Dorf on Law, Michael Dorf also discusses that this type of political science data is largely ignored by legal academics.

In the shorter Times feature, Liptak discusses the debate over whether Elena Kagan, if confirmed, should recuse herself from future challenges to health care reform legislation if – as expected – they reach the Court.  Kagan’s confirmation hearings, Liptak observes, “highlighted how vague the standards for recusal by Supreme Court justices are.”

In the Washington Post, Robert Barnes focuses on the dissent authored by Justice Stevens in McDonald and Justice Scalia’s concurring opinion in that case, characterizing them as the last in a series of intellectual “duels.”

A third Republican senator has agreed to vote for Kagan’s confirmation, according to the Associated Press: Senator Susan Collins of Maine.  Meanwhile, the Ninth Justice reports that Lamar Alexander, chairman of the Republican Conference, has pledged to oppose Kagan.

At, Michael Dorf commends Republican Senator Lindsey Graham for his vote in favor of Kagan, but – in a lengthy analysis – he disputes Graham’s suggestion that senators are constitutionally required to confirm a “mainstream” nominee.


  • A UPI feature by Michael Kirkland (thanks to Howard Bashman for the link) discusses next Term’s prison-crowding case, Schwarzenegger v. Plata, a challenge to a lower-court order requiring large-scale reductions in the California prison population to remedy the constitutionally inadequate health care provided to prisoners.
  • Nathan Koppel at the WSJ Law Blog summarizes last week’s ABA Journal article on the “flexible standards” established by the Court for patent cases in Bilski v. Kappos.
  • In a weekend interview, the Wall Street Journal talks to law professor Randy Barnett, who explains why he thinks the Court would, if asked to rule on the recent healthcare reform legislation, find it unconstitutional.
  • Steven Schwinn at Constitutional Law Prof Blog has an update on the DISCLOSE Act, a bill requiring corporations to disclose campaign donations in light of the Citizens United decision.