on Jul 6, 2010 at 10:39 am
[NOTE: James Bickford and Matthew Scarola contributed to this morningâ€™s round-up.]
Reflections on the Courtâ€™s October Term 2009 abound. The editorial board of the New York Times argues that this Term, â€œthe Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost.â€ At Althouse, Ann Althouse criticizes the editorial as â€œtedious sophistryâ€â€”an attempt to â€œwind up [the NYTâ€™s] readers about the conservatives on the Supreme Court.â€
With the Term over, many commentators focus on the big picture, rather than individual decisions.Â The editorial board of the Los Angeles Times expresses disappointment with the Courtâ€™s â€œinconsistentâ€ rulings in First Amendment cases, arguing that in Holder v. Humanitarian Law Project and Christian Legal Society v. Martinez, the Court gave â€œdisappointingly short shrift to [First] Amendment values.â€ The National Law Journalâ€™s Marcia Coyle observes that last Term, the Court heard an â€œunusually large number of casesâ€ that involve â€œhow lawyers do their jobs,â€ particularly cases involving â€œ[p]rotection from bad lawyering.â€ And in the San Francisco Chronicle (with thanks to Howard Bashman at How Appealing), Bob Egelko writes that the â€œbiggest loser [this Term] may have been the [J]ustices’ image as practitioners of judicial restraintâ€¦.â€ The winners, he writes, include â€œcorporate campaign donors, gun owners and dealers, prosecutors – except for those in white-collar crime and corruption cases – and immigrants.â€ Â Finally, Constitutional Law Prof Blog’sâ€™s Ruthann Robson links to theÂ video of the American Constitution Societyâ€™s Supreme Court Review panel, moderated by SCOTUSblogâ€™s Tom Goldstein.
In the wake of the Courtâ€™s decision in McDonald v. City of Chicago, NPRâ€™s David Schaper reports that Chicago quickly legalized handgun ownership after the Courtâ€™s decision, but that the ruling has also â€œfuel[ed]â€ debate on the subject of gun control. Also at NPR, Larry Abramson describes the complaints that, notwithstanding the Courtâ€™s decision two years ago in District of Columbia v. Heller, â€œitâ€™s still too difficult to get a gun in the nationâ€™s capital.â€Â The Courtâ€™s reasoning in McDonald is attracting particular attention. At Balkinization, Jack Balkin argues that the logical extension of the Courtâ€™s interpretation of the Civil Rights Act of 1866â€”the â€œinadvertentâ€ holding of McDonaldâ€”is that the entire Bill of Rights applies to the states, and that â€œthe main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.â€ Sasha Volokh objects to the latter conclusion at the Volokh Conspiracy. Ilya Shapiro and Josh Blackman opine in the Detroit News that Justice Thomasâ€™ concurrence in the caseâ€”the â€œdecisive fifth voteâ€â€”has â€œpav[ed] the way for [Courtâ€™s future use of] the Privileges or Immunities Clause [of the Fourteenth Amendment].â€ At his eponymous blog, Blackman argues that â€œif presented with the right case,â€ Justice Alito would be â€œwilling to reinvigorateâ€ that Clause.
David Savage of the Los Angeles Times discusses the Courtâ€™s just-concluded Term and the tension between the Court and President Obama following the Courtâ€™s decision in Citizens United v. Federal Election Commission. Savage adds that â€œ[m]any legal experts foresee a clash between Obama’s progressive agenda and the conservative court,â€ and that Kaganâ€™s â€œmission,â€ if confirmed, â€œis to help uphold the laws that Obama and Democrats are pushing through Congress.â€ Similarly, the Washington Postâ€™s E.J. Dionne Jr. opines that â€œsomething momentous [happened]â€ during Kaganâ€™s confirmation hearings, in part because â€œRepublicans largely [gave] up talking about â€˜judicial activism,â€™ [and] liberals [spoke] of the importance of democracy and deference to elected officials.â€
At Slate, Dahlia Lithwick takes a different tack. She argues that, by â€œtethering Kaganâ€ to the alleged â€œâ€˜judicial activistâ€™â€ Thurgood Marshall, Senate Republicans helped the Democrats to make their case: â€œthat sometimes the [C]ourt needs to step in when the other branches of government are not looking out for its most vulnerable citizens.â€Â On the op-ed page of the Wall Street Journal, Juan Williams objects to the Republicansâ€™ efforts to characterize Marshall as an â€œactivist,â€ countering that Justice â€œMarshall always tailored his opinions to adhere to constitutional principlesâ€”not political ideology.â€
Also at Slate, William Saletan discusses Elena Kaganâ€™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 â€œ[j]udges have put too much faith in statements from scientific organizations.â€
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.Â Barnes emerged from the Kagan hearings with â€œthe impression that, in the minds of some senators, certain members of the Supreme Court might be — how to put this? — less than truthful.â€
But if the opinions of several editorial boards are any indication, the Senate will soon confirm Kagan.Â The Philadelphia Inquirer concludes that Kagan isâ€œworthy of the Supreme Court,â€ while the Los Angeles Times writes that â€œ[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.â€Â Meanwhile, the Washington Post writes that Kagan displayed her â€œgrasp 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.â€
Finally, the New York Times Week in Review recaps last weekâ€™s hearings.
- At the Volokh Conspiracy, David Post pays tribute to Justice Ginsburgâ€™s late husband, Marty, describing him as â€œtruly one-of-a-kind.â€ The Ginsburgsâ€™ marriage, reports NPRâ€™s Nina Totenberg, was â€œone of those marvels of life, a 56-year marathon of love and support.â€
- Constitutional Law Prof Blogâ€™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 APâ€™s Russ Bynam describes some of the â€œmurky legal questionsâ€ surrounding death row inmate Troy Davis, whom the Supreme Court granted a rare opportunity to prove his innocence. (Thanks to How Appealingâ€™s Howard Bashman.)
- Sentencing Law and Policy Blogâ€™s Douglas Berman discusses a piece that describes the â€œaffinity of the Roberts Court for summary decisions,â€ noting that he â€œmight even urge the Justices to adopt a presumption of dealing with most capital appeals in summary form.â€