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Monday round-up

This morning the Court will hear oral arguments in two cases.  First up is Wittman v. Personhuballah, the challenge to a Virginia congressional district.  Lyle previewed the case for this blog, with other coverage from law students Kelsey Ferguson and Samantha Ostrom for Cornell’s Legal Information Institute.  I previewed RJR Nabisco v. European Community, in which the Court will consider whether and to what extent RICO applies outside the United States, for this blog, with other coverage from Daniel Fisher of Forbes and law students Tyler Vandeventer and Jason Ottomano for Cornell. The George Washington Law Review’s On the Docket also previews all of the arguments in the March sitting.

More coverage of the nomination of Judge Merrick Garland to succeed Justice Antonin Scalia comes from

  • Adam Liptak, who reviews Garland’s opinions for The New York Times;
  • Charlie Savage of The Times, who reports that “lawyers who have represented Guantánamo Bay detainees — and some liberals for whom Guantánamo is a core issue — have had a mixed reaction to the choice”;
  • Robert Barnes of The Washington Post, who concludes that Garland’s dissents reflect “the same caution, technical proficiency, restraint and reliance on precedent that are hallmarks of his majority opinions”;
  • David Graham, who in The Atlantic focuses on Garland’s role in prosecuting the Oklahoma City bombers and concludes that “it’s tough to trace direct lines through Garland’s pre-bench career to try to understand what sort of justice he’d be”;
  • Lydia Wheeler of The Hill, who looks at “some of Garland’s most intriguing cases”;
  • Perry Stein of The Washington Post, who interviews some of the schoolchildren Garland regularly tutors; and
  • Josh Gerstein of Politico, who observes that Garland has “few seminal opinions that capture his legal philosophy — and, for those rooting for his confirmation, that may be a good thing.”

Nina Totenberg of NPR interviewed President Barack Obama about his choice, with a follow-up story here.

Other coverage relating to the politics of the nomination comes from:

  • Ken Thomas and Kathleen Hennessey of the Associated Press, who report that, by “[c]hoosing a centrist judge with Republican appeal, President Barack Obama hoped to corner GOP opponents who pledge to block his Supreme Court pick” but “also boxed in the Democrats vying to succeed him”;
  • Rebecca Savransky of The Hill, who reports that “Democratic presidential candidate Bernie Sanders said he’d prefer to nominate his own Supreme Court justice if he becomes president but that he supports President Obama’s nomination”;
  • Mike DeBonis and Juliet Eilperin of The Washington Post, who report on plans by Democrats to “target[] vulnerable GOP Senate incumbents for defeat by portraying them as unwilling to fulfill the basic duties of their office” and thereby “so threaten the Republicans’ Senate majority that party leaders will reconsider blocking hearings on Garland’s nomination”;
  • Burgess Everett and Seung Min Kim of Politico, who similarly report that “Senate Democrats are preparing a national pressure campaign . . . in a bid to keep the issue red hot as senators scatter across the country for a 17-day recess”;
  • David Herszenhorn of The New York Times;
  • Josh Israel, who reports at Think Progress that Republican Senator Mark Kirk of Illinois “had a message for his GOP colleagues on Friday: give Garland a vote”;
  • Mike Lillis of The Hill, who reports that “a number of House liberals, while privately grumbling about the decision, have been exceedingly careful not to criticize the president publicly”; and
  • Josh Gerstein of Politico, who focuses on “a key question for” Garland “and for the White House: What to do about the day job?”

Commentary comes from:

  • Jeffrey Bellin, who at CNN writes that “Merrick Garland can help bring the Supreme Court together, pushing at least one of the three branches of government out of the political muck”;
  • Ilya Shapiro, who at Forbes contends that the “Senate is fully within its rights, given the unique nature of this judicial vacancy, to fulfill its ‘advice and consent’ function by telling the president that we should let this fall’s election determine the Supreme Court’s direction”;
  • Adam Shah, who at ACSblog suggests that, “[r]ather than argue over the Biden Rule or Senate Majority Leader Mitch McConnell’s earlier statements, we should look at the most relevant precedent: unelected President Gerald Ford’s nomination of John Paul Stevens late in Ford’s term in office”;
  • Kevin Washburn, who in The Oklahoman urges his state’s senators “to press Senate Leader Mitch McConnell for deliberations and a vote on this unsung American hero”;
  • George Will of The Washington Post, who argues that, “[i]f Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do”;
  • Gregory Craig, who writes in The New York Times that, “[b]y sending the Senate a nominee of this quality and stature, President Obama has increased the political price Republicans will pay if they ignore their constitutional duty to provide advice and consent”;
  • Stuart Eizenstat, who in The Washington Post looks back at the nomination and confirmation of Stephen Breyer to the First Circuit during the last weeks of the Carter administration;
  • Chris Cox, who in The Washington Post explains the NRA’s opposition to the Garland nomination;
  • Senator John Cornyn, who at CNN argues that “[t]he American people deserve to have a voice in the selection of the next Supreme Court Justice, and the best way to ensure that happens is to have the Senate consider a nomination made by the next President”;
  • Steven Klepper, who at Maryland Appellate Blog contends that, as a criminal defense lawyer, he “would be happy for Judge Garland to be on [his] panel in every single criminal appeal”;
  • Steve Vladeck, who at Just Security responds to Charlie Savage’s story on Garland’s record in detainee cases by concluding that, if anything, Savage’s “piece dramatically undersells the pro-government consistency of Judge Garland’s Guantánamo record”;
  • The New York University Law Review Online, which presents The Merrick Garland Project – a collection of some of his key opinions.
  • and Matthew Yglesias of Vox, who contends that “the best explanation for picking Garland, as far I can tell, is actually pretty simple: Obama would like to get a Supreme Court nominee confirmed by the United States Senate.”

In other news, on Wednesday the Court will hear oral arguments in Zubik v. Burwell, the challenge to the accommodation offered to religious non-profit groups that do not wish to provide access to birth control for their female employees and students.  Coverage comes from Mark Walsh of Education Week, with commentary from Kenneth Jost, who at Jost on Justice discusses an amicus brief in the case which argues that “a ruling for the religious groups also could undermine state laws protecting the right of terminally ill patients to reject extraordinary life-sustaining measures”; from Greg Lipper, who argues at Bill of Health Blog that “the science underlying the plaintiffs’ arguments that the government requires coverage for ‘abortifacients’ deserves a look”; and from Ilya Shapiro and Josh Blackman, who in The Weekly Standard contend that the Court’s recent decisions on the Affordable Care Act “present a result that most of the justices should be able to support: The administrative state overstepped its bounds, and religious nonprofits deserve at least the same exemption that many for-profit employers now enjoy.”   And at Balkinization, Marty Lederman summarizes several amicus briefs that “focus on the ‘back end’ of RFRA, i.e., on the question of whether denying the RFRA exemptions would be the ‘least restrictive’ means of advancing compelling government interests.”

Abby Goodnough of The New York Times reports on the impact that HB2, the Texas abortion law now under review at the Court, has had on women in that state, while Alex Zielinski discusses research on the same topic at Think Progress.


  • At Coverage Opinions, Randy Maniloff takes a lighter look at the Court with his “Supreme Court EmojiChallenge.”


If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

[Disclosure: Goldstein & Russell, P.C., is among the counsel on an amicus brief (discussed in the post by Marty Lederman, who is also on the brief) in support of the respondents in Zubik. However, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (Mar. 21, 2016, 6:44 AM),