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Tuesday round-up

Supreme Court news continues to focus on now-Justice Kagan. At Concurring Opinions, Brandon Bartels expresses doubt that the Kagan confirmation hearings taught us “anything new about the Supreme Court appointment process”’ and concludes that if President Obama has the opportunity to replace a conservative Justice, “we can surely count on a highly dramatic, contentious appointment process far eclipsing [Kagan’s].” And in an opinion piece for the Wall Street Journal, James Taranto laments the “troubling trend” of increasingly partisan confirmation votes and considers whether a future Obama nominee would face a filibuster.

Justice Ginsburg yesterday received the American Bar Association’s highest honor, the ABA Medal. The AP reports (via the Los Angeles Times) that in her remarks to the Association, she expressed hope that future hearings will be more “collegial.” The San Francisco Chronicle’s Bob Egelko also has coverage of Ginsburg’s speech.

As SCOTUSblog’s Lyle Denniston reports, the Court has released a revised schedule for oral arguments, apparently to accommodate Justice Kagan’s expected recusals.  One side effect of the expected recusals has been renewed attention to the consequences of a Justice’s decision to recuse herself from hearing a case. The Washington Post’s Robert Barnes describes potential legislation that would “allow a retired member of the Supreme Court to replace” a recused Justice. The WSJ Law Blog’s Ashby Jones summarizes Barnes’s article, while First One @ One First’s Mike Sacks explores “the possible political motivations and jurisprudential consequences” of the idea.

The discussion of several high-profile cases that could come before the Court in the future, and in particular the challenge to California’s Proposition 8, which prohibited same-sex marriage, continues. At NPR’s Watching Washington blog, Ron Elving predicts that the Court will “ultimately” review the issues of same-sex marriage, health-care reform, and the deep-water-drilling ban. Appellate Daily’s Michelle Olsen links to a video from Sunday’s Face the Nation, in which CBS’s Jan Crawford discusses same-sex marriage and describes Justice Kennedy as a “human jump ball.”  And Slate’s Emily Bazelon contends that “timing may matter most” to Justice Kennedy, explaining that although courts are not tasked with “mirror[ing] public opinion,” “[o]nce same-sex marriage has majority support…it will be easier” for judges – such as Justice Kennedy – to strike down bans without viewing such decisions as judicially activist.

If the Court rules on the merits of the Proposition 8 case, its decision may not ensure marriage equality. At Dorf on Law, Michael Dorf echoes concerns that opponents of the ban will “lose and lock in a bad decision for a decade or more, or…win and risk a constitutional amendment.” And in an opinion piece for the Christian Science Monitor, Jeff Amestoy describes the possibility of an amendment as “implausible,” but notes that “it is at least worth reminding ourselves that such an outcome would be constitutionally legitimate.”

At the Huffington Post, Chris Weigant explores the potential consequences of a Supreme Court decision striking down Proposition 8.  Such a ruling, he predicts, would be “the ‘final battle’ for gay rights” and could eventually lead to the legalization of polygamy.


  • At the Legal Intelligencer, Howard Bashman releases his Third Circuit SCOTUS report card, assessing cases reaching the Court from the Third Circuit, as well other cases in which the Court “noted that it was resolving [a circuit split involving] the [circuit].”
  • At the Public Citizen Litigation Group’s blog, Deepak Gupta compiles the amicus briefs filed in support of AT&T in AT&T v. Concepcion, “the upcoming case in which the U.S. Supreme Court will decide whether the Federal Arbitration Act preempts state-law rulings that class-action bans are unconscionable.”
  • At Balkinization, Marvin Ammori flags an interview featuring Harvard Law Professor Mark Tushnet, in which Tushnet discusses, among other things, “his personal and professional thoughts on Elena Kagan, the importance recent president have placed on judicial appointments, and whether judicial experience matters for a Supreme Court nominee.”
  • Yesterday Omar Khadr, whose trial by military commission the Supreme Court refused to stay, pleaded not guilty to killing a U.S. soldier. Jurist’s Ann Riley reports on recent news in Khadr’s trial, as do the Wall Street Journal’s Jess Bravin and the AP’s Mike Melia (via the Los Angeles Times).