Breaking News

Wednesday round-up

One story cut through the ongoing analysis of the Term’s rulings to grab significant attention yesterday. Thomas M. DeFrank of the New York Daily News reports that Justice Kennedy “has told relatives and friends he plans to stay on the high court for at least three more years—through the end of Obama’s first term.” Aside from that unconfirmed claim, though, coverage focused on major recent decisions and the Kagan nomination.

Commentators and journalists continue to dissect the implications of many of the Term’s decisions. At the Volokh Conspiracy, David Kopel has a post on a lawsuit challenging the new gun control laws enacted in Chicago in the wake of the Court’s decision in McDonald v. City of Chicago. In Forbes, law professor Richard Epstein criticizes the McDonald ruling, arguing that “[t]here is, quite simply, no good structural reason why the state cannot limit the right to keep and bear arms if the full text of the Second Amendment is in play.” And in the Chicago Tribune, columnist Clarence Page connects the McDonald ruling with African-American history, writing that “[l]obbyists for gun rights owe black Americans a historical debt of gratitude.”

In The Hill, David Cole, who represented the Humanitarian Law Project in Holder v. Humanitarian Law Project, describes the Court’s decision in that case as “perverse, even Orwellian” and calls on Congress to amend the material-support law at issue in the case. Writing for FindLaw, Joanne Mariner also criticizes the decision, nominating it as the worst of the Term.

Marcia Coyle reports for the Blog of LegalTimes that, as a result of the Court’s decision in New Process Steel v. NLRB, the National Labor Relations Board will rehear 96 cases that were not decided by a quorum of the Board. Also at the Blog of LegalTimes, Mike Scarcella reports on the latest developments in the corruption prosecution of former Jack Abramoff associate Kevin Ring; in that case, the Justice Department has argued that the Court’s decision in Skilling v. United States—the “honest services” case—has “no impact whatsoever” on its prosecution of Ring. 

SCOTUSblog’s Tom Goldstein examines the Term’s pattern of opinion assignments and finds it “quite likely . . . that Justice Stevens was originally going to author the Court’s opinion in Bilski [v. Kappos, the business methods patent case,] but subsequently lost his majority to Justice Kennedy.”

In Inside Higher Ed, Linda Hirshman suggests that Christian Legal Society v. Martinez “is noteworthy not just for what it says about public colleges and their student organizations, but also for what it may suggest about Perry v. Schwarzenegger, the constitutional challenge to California’s Prop 8.” Hirshman looks to Justice Kennedy’s concurring opinion in Christian Legal Society, which she regards as “a pretty stirring argument for the Prop 8 plaintiffs coming up from California.”

Rounding out coverage of the Term’s cases, the Washington Post’s T.W. Farnam reports on the practical effect of January’s decision in Citizens United. A Post analysis finds that “[l]abor unions have dominated spending on independent campaign ads so far this election season” and that “corporate money is not flooding into campaigns as many predicted would happen.” (Adam Cohen has a primer on Citizens United in Time magazine.)

Turning to the recently concluded confirmation hearings, David Ingram of the National Law Journal attempts to distill Kagan’s judicial philosophy from her testimony. One theme of the testimony, Ingram observes, is “that she would interpret the Constitution’s commerce clause broadly, granting Congress and the executive branch wide leeway to craft domestic policy.” Writing for Newsweek’s The Gaggle blog, Daniel Stone adds that “[i]n some ways she came out looking better than before [the hearings], humanizing herself with a number of charming one-liners that earned the favor of Republicans who began the hearings determined to find something—anything—problematic with her record.”

Stone also notes that Massachusetts Senator Scott Brown’s vote is in play, and the Boston Globe calls his vote “the most defining ideological test yet of his young Senate career.” Meanwhile, Senate candidate Marco Rubio, a Florida Republican, has declared that he would vote against Kagan’s confirmation if he were in the Senate, according to the South Florida Sun-Sentinel’s Florida Politics blog. In an opinion piece in the Pittsburgh Post-Gazette on Kagan’s Republican opposition, Reg Henry makes the case that “if this president nominated the Lord Himself for this court, Mr. Sessions and his pals would remain unrepentantly uneasy.” And despite such opposition from some Republicans, Kagan has added the Baltimore Sun’s editorial board to her list of over a dozen major newspaper endorsements.

Finally, and unrelated to the hearings, the Associated Press has a story on Kagan’s “prolific” fundraising as dean of Harvard Law School and explores whether that fundraising might create conflicts for her on the Court.


  • The American Bar Association has selected Justice Ginsburg to receive the American Bar Association Medal, its highest honor, reports the ABA Journal. Past winners include Chief Justice Burger and Justices Frankfurter, Holmes, Powell, Marshall, Brennan, O’Connor, and Kennedy.
  • Politico’s Kenneth P. Vogel has a lengthy report on Liberty Central, the “hybrid think tank/advocacy group/campaign arm for the tea party movement” whose president is Justice Thomas’s wife Ginny.
  • In his Sidebar column for the New York Times, Adam Liptak highlights a case pending at the Supreme Court in which a prosecutor was allowed to choose a capital defendant’s defense attorneys when Georgia could no longer afford to pay his capital defenders.
  • The Federalist Society is hosting its annual Supreme Court round-up on Friday at the Mayflower Hotel in Washington, DC; former Solicitor General Greg Garre will be the featured speaker.
  • And at the Huffington Post, humorist Doug Lieblich imagines what a cover letter for an application to be a Supreme Court Justice might look like.