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Monday round-up

On Saturday, in a ceremony attended by (among others) Justices Kennedy, Thomas, Ginsburg, Sotomayor and retired Justice Stevens, Elena Kagan was officially sworn in by Chief Justice John Roberts as the 112th Justice of the United States Supreme Court. The New York Times, the Washington Post, the Los Angeles Times, the Christian Science Monitor, NPR, JURIST, Politico, The Hill, The BLT, and this blog all have coverage. As Tony Mauro reports for the National Law Journal, Kagan will have to get straight to work, setting up her chambers and dealing with incoming petitions. David Savage of the Los Angeles Times discusses some of the high-profile cases – such as the Arizona immigration law and same-sex marriage – that Kagan may have to decide during her early years on the Court, while the Christian Science Monitor describes some of the cases that Kagan will face next Term on the Court. In his column for Slate, Brian Palmer explains that Justice Sonia Sotomayor  – who until Kagan’s arrival was the Court’s junior justice of the Court – will likely be responsible for introducing Kagan to the Court, and he speculates about whether Kagan will wear a jabot (the ruffled neckpiece worn by Justice Ruth Bader Ginsburg and retired Justice Sandra Day O’Connor).

With Elena Kagan now a member of the Court, the media continues to analyze her confirmation process and its implications for future Supreme Court nominations. In an op-ed for the Boston Globe, Harvard Law School dean Martha Minow discusses some senators’ criticisms of Justice Thurgood Marshall, for whom Kagan and Minow both served as law clerks, and characterizes Kagan’s confirmation as “not only a victory for her, but also a confirmation of Marshall’s enduring legacy.” At Bench Memos, Carrie Severino argues that conservatives should be pleased with Kagan’s confirmation, including because “the debate [over the confirmation] was focused not on sordid personal attacks but on real issues of judicial philosophy and temperament.”  Also at Bench Memos, Gary Marx offers “five lessons learned” from the Kagan confirmation process, and he describes Kagan’s confirmation in the face of thirty-seven “no” votes as a victory for judicial conservatives.  Both Severino and Marx suggest that if Republicans gain seats in November, ”President Obama will be looking at a totally different set of possibilities should Justice Ginsburg or another Supreme retire.” The Ninth Justice discusses potential reasons for the opposition to Kagan’s confirmation, while in the National Law Journal David Ingram comments on the criticism Kagan faced for not having had prior judicial experience.

Speculation about the potential outcome of the California same-sex marriage case should it reach the Supreme Court continues. Maura Dolan and Carol Williams of the Los Angeles Times discuss the extent to which Judge Walker’s opinion is “anchored in factual findings,” which might help the decision survive appellate review. Michael Doyle, writing for the Miami Herald, agrees that “Justice Kennedy’s the one to watch” in this case. In an opinion piece for the Wall Street Journal, James Taranto argues that Kennedy’s vote in favor of a constitutional right to same-sex marriage is all but assured and predicts that he will write the opinion in the case. Ann Althouse agrees that “[t]here are 5 votes for a constitutional right to same-sex marriage, and 5 is all you need.” In a feature for TIME, Michael Lindenberger interviews David Boies and Ted Olson, who were adversaries in Bush v. Gore but later teamed up together to litigate the Prop 8 case.  At the Huffington Post, Jason Linkins discusses the relationship of the California case to the Massachusetts DOMA case and suggests that Judge Walker’s decision has the better chance of surviving Supreme Court review.


  • On Friday, the White House hosted a reception to celebrate Kagan’s confirmation. ACSblog , the Caucus Blog of the New York Times, and the Courthouse News Service have coverage.
  • At Cato@Liberty, Ilya Shapiro suggests that Justice “Kagan’s confirmation could be [the] high-water mark for big government” and states that “[s]he will rarely be a friend of liberty on the Court.”
  • On Friday, the Court denied the petition to stay the war crimes trial of Omar Khadr, the Canadian detained at Guantanamo Bay. This blog and JURIST have coverage.
  • The Washington Post reports that the Court’s decision in Skilling v. United States (the “honest services” case) “has led to a string of dropped charges and new trials.”