Breaking News

Monday round-up

With the Senate expected to vote on Elena Kagan’s nomination to the Supreme Court this week, media coverage this weekend focused on the upcoming vote. As the Washington Post, Bench Memos, The Caucus blog of the New York Times, and the Volokh Conspiracy all report, Senator Ben Nelson of Nebraska became the first Democrat to announce that he will vote against Kagan’s confirmation. Senator Nelson cited the concerns of his constituents and his inability to address those concerns given Kagan’s “lack of a judicial record.” However, on Friday Senator Judd Gregg became the fifth Republican senator to announce that he would vote in favor of Kagan’s confirmation, thereby joining fellow Republican senators Olympia Snowe, Susan Collins, Richard Lugar, and Lindsey Graham. The Ninth Justice, The Hill, and the Boston Globe all have coverage, with The Ninth Justice suggesting that Massachusetts Senator Scott Brown “appears to be the most likely remaining GOP ‘yes’ vote.’”

On Friday, Justice Ruth Bader Ginsburg delivered a speech at American University’s Washington College of Law about the role of foreign and international law in American courts. Both Jess Bravin of the WSJ Law Blog and Lyle Denniston of this blog have coverage of Ginsburg’s speech; they note that Ginsburg seemed to approve of Kagan’s suggestion that a foreign decision “could be informative in much the same way as . . . a law review article,” and she seemed critical of Republican senators’ condemnations of the use of foreign law in American courts. 

The legal battle over Arizona’s controversial immigration law continues to unfold. On Friday, the Ninth Circuit denied Arizona’s motion for an expedited appeal, as JURIST, Politico, and SCOTUSblog’s own Lyle Denniston report. In an opinion piece for the Washington Post, Roberto Suro suggests that the controversy is headed down a “tortured path to the U.S. Supreme Court,” although “even the nine justices won’t be able to settle the heart of the matter.”   And in his column for the Wall Street Journal’s Capital Journal blog, pollster Peter Brown argues that the case raises issues about the role of courts as political actors.


  • At Slate, Dahlia Lithwick asks, “Will there be friction between the chief justice and Elena Kagan on the Supreme Court?” Citing the tense interactions between Chief Justice John Roberts and then-Solicitor General Kagan during Kagan’s brief tenure as Solicitor General, Lithwick suggests the two brilliant jurists will make a “fascinating pairing” if Kagan is confirmed to the Court.
  • An opinion piece for the New York Times defends the Court’s decision in the animal cruelty case, United States v. Stevens, and argues that the Court should again refrain from carving out an exception to the First Amendment in the violent video games case, Schwarzenegger v. Entertainment Merchants Association, next term.
  • A UPI feature by Michael Kirkland (thanks to How Appealing’s Howard Bashman for the link) discusses the consequences of Court’s denial of certiorari in the tobacco case. For background on the case, see Lyle Denniston’s discussion of the Court’s decision not to review the D.C. Circuit’s ruling for this blog.
  • At the Volokh Conspiracy, Jonathan Adler added his voice to the critics of Adam Liptak’s Roberts Court article (published last weekend in the New York Times and originally covered in last Monday’s round-up) Adler argues that Liptak “overstates the purported conservatism of the Roberts Court” and that Liptak’s data tends to show that the Roberts Court is the “least activist” Court, not necessarily the “most conservative” Court.
  • The Hill discusses the NRA’s response to the Kagan nomination and speculates about whether the NRA will spend further political capital opposing Kagan given the likelihood of her confirmation.