For The National Law Journal (subscription or registration required), Tony Mauro reports that Justice Antonin Scalia’s “failure to specify a home for his official papers before his death” leaves “unresolved the status of what could be a treasure trove of behind-the-scenes information about his tenure and about the court.”

At Lawfare, Adam Klein assesses Scalia’s jurisprudence in terms of national security cases and concludes that, “as a jurist, he placed his faith in the people’s judgment above his own, humbly accepting the unheroic role the Constitution assigned him.” Steve Vladeck responds, also at Lawfare, with a “few additional data points for those seeking to evaluate Justice Scalia’s national security legacy – episodes that lend themselves to a somewhat more circumspect story.” Noah Feldman of Bloomberg View argues that textualism will persist as Scalia’s main legacy, while at Big Think Steven Mazie assesses his liberal jurisprudence. For The National Law Journal, Beth Frerking interviews Tony Mauro and Marcia Coyle, the paper’s Supreme Court correspondents, about their experiences covering Scalia.

Tom Howell of The Washington Times looks at how Scalia’s death could affect Zubik v. Burwell, the challenge to the Affordable Care Act’s contraceptive mandate, while Emma Green of The Atlantic comments on the consequences of Scalia’s death for religious liberty more broadly. At PrawfsBlawg, Richard Re predicts repercussions for the Court if a liberal jurist replaces Scalia, and Linda Greenhouse of The New York Times argues that the Roberts Court now has a “chance to hit reset.” Eduardo Porter of The New York Times lays out the stakes facing the next Justice in the climate-change debate.

At Fusion, Casey Tolan profiles Judge Sri Srinivasan, a potential nominee to the Supreme Court. David Fontana and Ian Bassin argue at Slate that the president should nominate an individual with “empathy not just in discerning how the law applies in the world, but also in being open-minded in listening to justices on the other side of a given issue.”

At Huffington Post, Brianne Gorod notes that there are still “well over 300 days until President Obama leaves office, far longer than it has ever taken a Supreme Court nominee to receive a vote in recent history,” and Judith Schaeffer – also at Huffington Post – argues that “it is the Senate’s constitutional responsibility to act timely on that nomination.” Noah Feldman of Bloomberg View contends that “[a]ll the Constitution requires is that there be a Supreme Court. Beyond that, we’re in the realm of politics.” Eric Miller at PrawfsBlawg and Garrett Epps of The Atlantic comment on the political aspect of appointments, and Elizabeth Wydra, in an op-ed for The New York Times, suggests that a failure by the Senate to act on a nomination could lead to a “debate about a range of important issues that will inevitably result.” In NYMag, Ed Kilgore urges readers to “get used to the new reality: Fights over SCOTUS probably aren’t just for activists any more.” Finally, Matthew Yglesias notes at Vox that every other major democratic nation imposes term limits, a mandatory retirement age, or both on its Justices.


  • In The New York Times Magazine, Emily Bazelon examines Texas’s defense of the abortion regulations at issue in Whole Woman’s Health v. Hellerstedt as intended to protect women’s health, contending that there is “no phrase for men equivalent to ‘damsel in distress’ and no such thing as ‘protective’ legislation for men.”
  • The George Washington Law Review’s On the Docket previews the February Supreme Court arguments.

Posted in Round-up

Recommended Citation: Andrew Hamm, Thursday round-up, SCOTUSblog (Feb. 18, 2016, 12:38 PM),