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Tuesday round-up

Yesterday the Justices issued orders from their March 4 Conference.  Lyle Denniston covered the order list for this blog.  Other coverage of the summary reversal in V.L. v. E.L., in which the Justices ruled that states must recognize an adoption by a same-sex parent that occurred in another state, comes from David Savage of the Los Angeles Times, German Lopez of Vox, Richard Wolf of USA Today, Danielle Blevins of Talk Radio News, Samuel Lieberman of New York, Adam Liptak of The New York Times, Nolan McCaskill of Politico, and Chris Geidner of BuzzFeed.  Commentary comes from Ruthann Robson at Constitutional Law Prof Blog and Howard Wasserman at PrawfsBlawg

At Crime and Consequences, Kent Scheidegger weighs in on Wearry v. Cain, yesterday’s summary reversal of a state court decision denying habeas relief to a death-row inmate; he contends that Wearry’s “is the kind of case that should not have been capital in the first place.”

At USA Today, Richard Wolf suggests, in the wake of today’s orders, that “[t]here’s a fledgling new partnership on the Supreme Court in the wake of Justice Antonin Scalia’s death last month”; Tony Mauro similarly reports for Supreme Court Brief (subscription required) that Justices Samuel Alito and Clarence Thomas “picked up the mantle of the late Justice Antonin Scalia in advising lower courts on how to cope with a January decision in which all three justices dissented.”

Coverage of yesterday’s only opinion, in Americold Realty Trust v. ConAgra Foods, comes from Ronald Mann, who reports for this blog that the “case seems most unlikely to have any broad or long-term impact.”  I also covered the decision for my own blog, while Danielle Blevins did the same for Talk Radio News.

Coverage relating to the battle over Justice Antonin Scalia’s successor comes from CNN, where Matthew Jaffe reports that “[f]ormer Senate Majority Leader Trent Lott says he would have taken up President Obama’s nomination to fill the seat of the late Supreme Court Justice Antonin Scalia.”  In The Washington Post, Amy Goldstein and others report that the “White House is considering nearly a half-dozen relatively new federal judges for President Obama’s nomination to the Supreme Court, focusing on jurists with scant dis­cern­ible ideology and limited judicial records as part of a strategy to surmount fierce Republican opposition.” In an op-ed for The Hill, former senator Judd Gregg outlines a “looming scenario” that, he contends, might cause Senate Republicans to reconsider their strategy of not giving a hearing to President Barack Obama’s eventual nominee.

At OUPblog, Edward Zelinsky proposes a solution to the dispute, arguing that “[t]he Court’s recent decision in Noel Canning suggests the best way to manage the conflict about Justice Scalia’s successor”:  “the President and Senate Republicans should agree on a recess appointment by which one of the three living former justices temporarily returns to the Court.” And at AHA Today, Marc Stein looks at “what we have learned and not learned in the last few weeks about the history and politics of presidential appointments.”

Commentary on last week’s order blocking enforcement of a Louisiana abortion law comes from Ian Millhiser at ThinkProgress and Steven Mazie of The Economist.


  • At Constitution Daily, Jeffrey Shulman weighs in on Zubik v. Burwell, the birth-control mandate case, arguing that, “[i]f the Little Sisters and their fellow plaintiffs win, we may have burdens coming out of the spiritual woodwork” because the Religious Freedom Restoration Act is “a bad law.”
  • At PrawfsBlawg, Howard Wasserman suggests a possible resolution to the challenge to Texas’s abortion regulations:  sending the case back to the lower court “for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along.”
  • At Crime and Consequences, Kent Scheidegger vigorously disputes an account, in The New York Times, of the role played by presidential candidate Ted Cruz in Medellin v. Texas.
  • At Politico, Josh Gerstein reports that “the National Archives is preparing to release a trove of records pertaining to the last round of high court drama: President George W. Bush’s failed nomination of White House counsel Harriet Miers in 2005.”
  • In his Sidebar column for The New York Times, Adam Liptak reports on a new study of amicus briefs, including the emergence of two new players: the “wrangler” and the “whisperer.”
  • At PrawfsBlawg, Mark Moller considers the late Justice Antonin Scalia’s “legacy in an area where it doesn’t get a ton of play—class action,” and suggests that “what gets neglected about Scalia is that he seemed to have a pretty distinctive way of conceptualizing external constraints on the class action.”

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Mar. 8, 2016, 7:16 AM),