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Wednesday round-up

Commentary on some of the Court’s recent orders and decisions continues. Yesterday’s round-up collected coverage of the cert. denial in Tuck-It-Away, Inc. v. N.Y. State Urban Development Corp., an eminent domain case involving Columbia University’s plans to expand its Manhattan campus. Subsequently, the Columbia Spectator published a report on the case, which a number of bloggers discuss. On her blog at the Atlantic, Megan McArdle laments the denial, complaining that it “reinforces the precedent of Kelo–that the government can take land and transfer it to private actors even when there’s only a trivial and dubious public gain involved.”  At the Volokh Conspiracy, Ilya Somin “share[s] McArdle’s frustration about the Court’s refusal to take the case.” Meanwhile, at Sentencing Law and Policy, Doug Berman discusses Tapia v. United States, one of Monday’s grants, and explains why he regards the case as “the sentencing sleeper of the current SCOTUS Term” and plans to “make a pitch for why [he] should be appointed to represent the decision below before SCOTUS.” Also, at PrawfsBlawg, Tun-Jen Chiang has a post on the “unanswered questions” left in the wake of the Court’s recent four-to-four split in the copyright case Costco v. Omega.

As Andrew also noted in yesterday’s round-up, Justice Scalia will help to launch Representative Michele Bachmann’s crash course on the Constitution for incoming members of Congress. Washington Post blogger Greg Sargent has confirmed with Supreme Court spokeswoman Kathy Arburg that Justice Scalia will speak about “separation of powers.” At Politico, Jennifer Epstein observes that “[i]t’s unusual for members of the high court to speak to small groups of lawmakers, but not unprecedented.” CBS News’s Political Hotsheet blog and Salon also have coverage of the announcement. 

Finally, speculation about how the health care reform law will fare at the Supreme Court proceeds apace. Perhaps unsurprisingly, journalists and commentators have focused on Justice Kennedy. Bloomberg’s Greg Stohr writes that Justice Kennedy “has signed opinions pointing in both directions” on congressional power, while the Wall Street Journal’s Jess Brevin predicts that “the pivotal votes likely belong to Chief Justice John Roberts and Justice Anthony Kennedy.” And in an interview with Daniel Foster of the National Review Online, Virginia Attorney General Ken Cuccinelli says he is counting on Justice Kennedy’s vote in an eventual Supreme Court case. Meanwhile, in an attempt to illustrate what Justice Kennedy might do in the case, the editorial board of the Christian Science Monitor has drafted a mock opinion striking down the individual mandate.


  • A Slate essay by Dahlia Lithwick and Sonja West considers whether, “[a]s justices speak more and more frequently off the bench, [they] should . . . come to some agreement about when their words undermine the institution as a whole.”
  • Ruthann Robson of Constitutional Law Prof Blog notes that “[w]ithout much fanfare, President Obama signed into law the Animal Crush Video Prohibition Act of 2010, intended to cure the defects of the previous [animal cruelty] law, held unconstitutional last April in United States v. Stevens.”
  • In an opinion piece on Citizens United for Politico, Fred Wertheimer outlines what he characterizes as the “series of fundamental mistakes” on which the decision was based. 
  • Appellate Daily discusses a recent First Circuit decision authored by retired Justice David H. Souter in which Justice Souter cites and further explains his seminal decision in Bell Atlantic Corp. v. Twombly in 2007.
  • Brad Newberg has a guest commentary post on copyright issues at the Legal Pulse, in which he notes a recent trend at the Court of “not tackling [such] issues.” In his view, “2010 will end with the Supreme Court having missed some opportunities to clarify parts of the Copyright Act that have real-world ramifications for copyright owners, users, and legal practitioners.”
  • At the Volokh Conspiracy, Orin Kerr links to archival C-SPAN coverage of a panel of Supreme Court law clerks discussing Brown v. Board of Education, which was decided during their clerkships.

Recommended Citation: Adam Chandler, Wednesday round-up, SCOTUSblog (Dec. 15, 2010, 11:13 AM),