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Tuesday round-up

[NOTE: James Bickford and Matthew Scarola contributed to this morning’s round-up.]

Reflections on the Court’s October Term 2009 abound. The editorial board of the New York Times argues that this Term, “the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost.” At Althouse, Ann Althouse criticizes the editorial as “tedious sophistry”—an attempt to “wind up [the NYT’s] readers about the conservatives on the Supreme Court.”

With the Term over, many commentators focus on the big picture, rather than individual decisions.  The editorial board of the Los Angeles Times expresses disappointment with the Court’s “inconsistent” rulings in First Amendment cases, arguing that in Holder v. Humanitarian Law Project and Christian Legal Society v. Martinez, the Court gave “disappointingly short shrift to [First] Amendment values.” The National Law Journal’s Marcia Coyle observes that last Term, the Court heard an “unusually large number of cases” that involve “how lawyers do their jobs,” particularly cases involving “[p]rotection from bad lawyering.” And in the San Francisco Chronicle (with thanks to Howard Bashman at How Appealing), Bob Egelko writes that the “biggest loser [this Term] may have been the [J]ustices’ image as practitioners of judicial restraint….” The winners, he writes, include “corporate campaign donors, gun owners and dealers, prosecutors – except for those in white-collar crime and corruption cases – and immigrants.”  Finally, Constitutional Law Prof Blog’s’s Ruthann Robson links to the  video of the American Constitution Society’s Supreme Court Review panel, moderated by SCOTUSblog’s Tom Goldstein.

In the wake of the Court’s decision in McDonald v. City of Chicago, NPR’s David Schaper reports that Chicago quickly legalized handgun ownership after the Court’s decision, but that the ruling has also “fuel[ed]” debate on the subject of gun control. Also at NPR, Larry Abramson describes the complaints that, notwithstanding the Court’s decision two years ago in District of Columbia v. Heller, “it’s still too difficult to get a gun in the nation’s capital.”  The Court’s reasoning in McDonald is attracting particular attention. At Balkinization, Jack Balkin argues that the logical extension of the Court’s interpretation of the Civil Rights Act of 1866—the “inadvertent” holding of McDonald—is that the entire Bill of Rights applies to the states, and that “the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.” Sasha Volokh objects to the latter conclusion at the Volokh Conspiracy. Ilya Shapiro and Josh Blackman opine in the Detroit News that Justice Thomas’ concurrence in the case—the “decisive fifth vote”—has “pav[ed] the way for [Court’s future use of] the Privileges or Immunities Clause [of the Fourteenth Amendment].” At his eponymous blog, Blackman argues that “if presented with the right case,” Justice Alito would be “willing to reinvigorate” that Clause.

David Savage of the Los Angeles Times discusses the Court’s just-concluded Term and the tension between the Court and President Obama following the Court’s decision in Citizens United v. Federal Election Commission. Savage adds that “[m]any legal experts foresee a clash between Obama’s progressive agenda and the conservative court,” and that Kagan’s “mission,” if confirmed, “is to help uphold the laws that Obama and Democrats are pushing through Congress.” Similarly, the Washington Post’s E.J. Dionne Jr. opines that “something momentous [happened]” during Kagan’s confirmation hearings, in part because “Republicans largely [gave] up talking about ‘judicial activism,’ [and] liberals [spoke] of the importance of democracy and deference to elected officials.”

At Slate, Dahlia Lithwick takes a different tack. She argues that, by “tethering Kagan” to the alleged “‘judicial activist’” Thurgood Marshall, Senate Republicans helped the Democrats to make their case: “that sometimes the [C]ourt needs to step in when the other branches of government are not looking out for its most vulnerable citizens.”  On the op-ed page of the Wall Street Journal, Juan Williams objects to the Republicans’ efforts to characterize Marshall as an “activist,” countering that Justice “Marshall always tailored his opinions to adhere to constitutional principles—not political ideology.”

Also at Slate, William Saletan discusses Elena Kagan’s role in a Clinton-era statement put out by the American College of Obstetricians and Gynecologists, using the statement as an example to argue that “[j]udges have put too much faith in statements from scientific organizations.”

In the Washington Post, Robert Barnes suggests that some Senators may have less than total confidence in Supreme Court nominees who have recently appeared before them.  Barnes emerged from the Kagan hearings with “the impression that, in the minds of some senators, certain members of the Supreme Court might be — how to put this? — less than truthful.”

But if the opinions of several editorial boards are any indication, the Senate will soon confirm Kagan.  The Philadelphia Inquirer concludes that Kagan is“worthy of the Supreme Court,” while the Los Angeles Times writes that “[a]s disappointed as we were by her evasiveness on broad constitutional issues, the hearings confirmed our original judgment, based on the excellence she has displayed during a long career, that she is well qualified for the court.”  Meanwhile, the Washington Post writes that Kagan displayed her “grasp of a wide array of legal matters. She exhibited an admirable judicial temperament that allowed her to stay cool and engaged despite at times hostile questioning. The former Harvard Law School dean and current U.S. solicitor general should be confirmed, and by a wide margin.”

Finally, the New York Times Week in Review recaps last week’s hearings.


  • At the Volokh Conspiracy, David Post pays tribute to Justice Ginsburg’s late husband, Marty, describing him as “truly one-of-a-kind.” The Ginsburgs’ marriage, reports NPR’s Nina Totenberg, was “one of those marvels of life, a 56-year marathon of love and support.”
  • Constitutional Law Prof Blog’s Steven Schwinn discusses the Cato Institute’s analysis of the DISCLOSE Act, a legislative response to the Court’s holding in Citizens United.
  • In the Atlanta Journal-Constitution, the AP’s Russ Bynam describes some of the “murky legal questions” surrounding death row inmate Troy Davis, whom the Supreme Court granted a rare opportunity to prove his innocence. (Thanks to How Appealing’s Howard Bashman.)
  • Sentencing Law and Policy Blog’s Douglas Berman discusses a piece that describes the “affinity of the Roberts Court for summary decisions,” noting that he “might even urge the Justices to adopt a presumption of dealing with most capital appeals in summary form.”