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Monday round-up

On Friday, the California Attorney General notified the Ninth Circuit that the state would not appeal Judge Walker’s decision in the Proposition 8 case, as Lyle Denniston of this blog reports. The state’s refusal to defend the law has led to the question whether Proposition 8’s supporters even have standing to appeal Judge Vaughn Walker’s decision. In an opinion piece for the Los Angeles Times, Erwin Chemerinsky analyzes the standing question in light of the Supreme Court’s standing precedent; he concludes that “[i]ronically, it is a legal doctrine fashioned by conservatives that may provide a decisive victory” for supporters of same-sex marriage.  Howard Wasserman has a similar analysis in a post at PrawsfBlawg, as do Jonathan Adler of the Volokh Conspiracy, Emily Bazelon of Slate, Tony Mauro of the BLT, and Lyle Denniston of this blog. Jesse McKinley of the New York Times explores the avenue by which the case might reach the Supreme Court and how it might be received there, as does Maura Dolan of the Los Angeles Times.  Michael Kirkland of UPI examines how Justice Anthony Kennedy might view the case if it does reach the Court; Dahlia Lithwick of Slate tries to answer the same question and suggests that Kennedy “may not even know yet himself.” Finally, in an opinion piece for the Los Angeles Times, Michael Klarman argues that the Court’s decision is likely to be influenced by the fact that public support for same-sex marriage is continuing to build. 

With Justice Elena Kagan confirmed, the blogosphere has begun to speculate about who will replace her as Solicitor General. SCOTUSblog’s own Tom Goldstein suggests that Neal Katyal, the Acting Solicitor General, will be named the next Solicitor General. Mike Sacks of First One @ One First agrees and hypothesizes that Katyal would be appointed “with the specific purpose of priming him for a Supreme Court seat.” At Sentencing Law and Policy, Doug Berman “hop[es] Tom’s prediction . . . proves accurate,” but he expresses doubt that Katyal’s appointment would have much effect on “the office’s basic approach and direction in criminal justice matters.”


  • At the New York Daily News, Tina Moore reports that Justice Sotomayor addressed an audience of children at Lehman College for the Dream Big Initiative. (Thanks to How Appealing’s Howard Bashman for the link.)
  • At the Atlantic, Chris Good suggests that the birthright citizenship issue is ripe for Supreme Court review.
  • As Appellate Daily reports, Justice Kennedy will speak at the Ninth Circuit Judicial Conference on Thursday — one day after the Prop 8 stay is scheduled to expire.