Monday round-up

By James Bickford
on Nov 15, 2010 at 9:44 am

The Court is expected to hand down its first decision of the Term this morning.  On Friday, the Court issued an order that leaves the military’s “don’t ask/don’t tell” policy in effect pending an appeal on its constitutionality.  Justice Elena Kagan did not participate in the Court’s order; Ed O’Keefe and Robert Barnes of the Washington Post note that her recusal “raises the possibility of a 4 to 4 tie” and also “robs those who oppose ‘don’t ask, don’t tell’ of a justice likely to be sympathetic” if the case returns to the Court.  Coverage of the order is available from this blog, as well as the New York Times, Los Angeles Times, Financial Times, Blog of Legal Times, Time’s Swampland blog, San Francisco Chronicle, Christian Science Monitor, Bloomberg, USA Today, BBC News, Politico, JURIST, Fox News, Courthouse News Service, The Hill’s Briefing Room blog, ABC News’ The Note blog, NPR’s The Two-Way blog, the Washington Post’s Federal Eye blog, and the Associated Press (via New Haven Register).  Jason Mazzone of Balkinization notes that, with the possibility of a four-four tie, the Ninth Circuit’s decision on the merits “will almost certainly be the last word in the case.”  The editorial board of the New York Times weighs in as well, deeming the Court’s order leaving the policy in effect “a victory for theory over reality and a defeat for America’s system of checks and balances.”

Recently argued cases are still in the news.  David Savage reports for the Los Angeles Times on Cullen v. Pinholster, a case that “raises a potentially crucial issue with national impact: Can new evidence be used in federal court to upset an old and long-settled state court conviction?”  Harriet Robbins Ost of UPI writes that, at law week’s oral argument in Mayo Foundation v. United States, the Court “explored various approaches to determine whether residents are predominantly students and therefore exempt from paying into Social Security or employees and liable” for those payments. And the editorial board of the New York Times also weighs in on Schwarzenegger v. EMA, arguing that the Court “would end a violation of free expression — but not prevent the states from finding other ways to support parents who do not want their children to play violent games” if it struck down the California law at issue in the case.

Older cases are also making headlines.  Len Boselovic of the Pittsburgh Post-Gazette reports on the aftermath of Caperton v. Massey Coal.  Although the U.S. Supreme Court decided in Hugh Caperton’s favor in 2009 — ruling that a West Virginia Supreme Court justice whose campaign had been substantially funded by the CEO of Massey Coal could not hear a case involving Caperton’s $50 million judgment against that company — Caperton still lost before the West Virginia court.  Now he has filed suit against a unit of the larger company in Virginia, repeating the claims of his earlier action.  At Jost on Justice, Kenneth Jost takes a look back at the first post-Citizens United election, writing that the reviews of recent campaign expenditures “are decidedly mixed.”

Finally, Justices Antonin Scalia and Stephen Breyer continued their debate on constitutional interpretation on Friday in Lubbock, Texas, as part of a lecture series honoring retired Justice Sandra Day O’Connor.  The Avalanche-Journal of Lubbock has coverage of the event (thanks to Howard Bashman at How Appealing for the link) as do the Associated Press (via Chicago Tribune) and the Daily Toreador of Texas Tech.

Briefly:

• Washington Briefs notes the death of David Henderson, the petitioner in Henderson v. Shinseki.  The case, which is currently scheduled for oral argument on December 6, involves the question of whether the limitations period for veterans seeking judicial review of denied claims for disability benefits can sometimes be extended in the interest of fairness. Henderson’s attorney has filed a motion asking to substitute the late man’s widow as a party, on the ground that she would be entitled to whatever benefits Henderson had accrued.