Monday round-up

By Andrew Hamm
on Feb 1, 2016 at 3:41 pm

Justice Samuel Alito took his seat on the Court ten years ago yesterday. Reporting on the anniversary for the ABA Journal, Mark Walsh observes that Alito “has quietly helped move the court rightward on issues such as race in K-12 education, abortion rights, campaign finance, voting rights and religious accommodation.” Tamara Tabo of Above the Law contends that Alito may be “the most important conservative currently on the Court,” because he is “more coherent than Kennedy, more conventional than Thomas, more consistently conservative than Roberts,” and “a lot further from retirement or death than Scalia.”

It has also been ten years since Justice Clarence Thomas has asked a question from the bench. Adam Liptak of The New York Times suggests that it is a “pity that Justice Thomas has withdrawn from an important part of the court’s work” and notes that were he “to talk, people would listen.” Melissa Gomez of the Alligator reports on Thomas’s visit last week to the University of Florida’s Levin College of Law, where he spoke to property-law students.

Coverage and commentary on last Monday’s ruling in FERC v. Electric Power Supply Association, holding that the Federal Power Act provides the Federal Energy Regulatory Commission with the authority to regulate wholesale market operators’ compensation of demand response bids, continue. Writing for the American College of Environmental Lawyers, Brian Rosenthal comments that Justice Elena Kagan’s majority opinion “sends waves by its impact on energy use or non-use.” At the NCSL Blog, Lisa Soronen characterizes the case “as a mixed bag for states,” who will lose authority to regulate retail electricity rates but will benefit as consumers from the lower, demand-response rates. At The George Washington Law Review’s On the Docket, Emily Hammond praises the Court for “translating a very technical decision into a tractable opinion” and expresses optimism that the Court “will make this approach a trend for administrative agencies writ large.”

There is more coverage and commentary as well on Montgomery v. Louisiana, holding that Miller v. Alabama, the Court’s 2012 decision prohibiting mandatory sentences of life without parole for juvenile offenders, applies retroactively to cases on state collateral review. Again at the NCSL Blog, Lisa Soronen considers the ruling with attention to its suggestion that “rather than relitigating sentences states may allow relevant juvenile offenders to be eligible for parole.” Kenneth Jost, at Jost on Justice, suggests that Chief Justice John Roberts may have joined the majority due to an unwillingness “to join his fellow conservatives in curtailing the court’s constitutional supremacy over state courts on matters of federal law.”

Briefly:

• At ACSblog, Jessica Pezley reviews the four death-penalty cases before the Court this Term and concludes that the “future of the death penalty at the Supreme Court is anything but certain.”
• The NFIB Small Business Legal Center urges the Court to take “at least one more major property rights case” this Term, and it previews four pending petitions it considers worthy of consideration.
• Ian Millhiser at Think Progress suggests how in Whole Woman’s Health v. Hellerstedt (known until last week as Whole Woman’s Health v. Cole) the Court could overrule Roe v. Wade: “[N]ot in an opinion that summons bold headlines declaring ‘ROE OVERRULED’ in a presidential election year, but in a far more subtle appeal to manufactured uncertainty” over “whether an abortion restriction is medically justified.”
• Jordan Singer at PrawfsBlawg makes a case for requiring television cameras in the Supreme Court and hopes that “the federal judiciary’s own highly successful cameras program in the district courts” may resonate with the Justices.
• Todd Gaziano and Reed Hopper for Town Hall preview United States Army Corps of Engineers v. Hawkes, Co., Inc. and urge the Court to provide landowners a “meaningful right to a ‘day in court’ to challenge federal authority over their land.”
• Jess Bravin of The Wall Street Journal reports on the status and future of the Oyez Project’s Supreme Court archives hosted at Chicago-Kent College of Law, whose owner, Jerry Goldman, plans to retire from the school in May.