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Monday round-up

In The Washington Post, Mark Berman reports on the aftermath of the Court’s recent decision in Hurst v. Florida, in which the Court “struck down Florida’s unique system of imposing death sentences as unconstitutional because it let judges, rather than juries, make the final call.”  Kent Scheidegger weighs in at Crime and Consequences with a detailed analysis of what the ruling might mean for other inmates on the state’s death row.

In Slate, Robert J. Smith focuses on the pending case of Georgia death row inmate Timothy Foster; he argues that, although it “seems likely the court will grant Foster a new trial,” “it’s hard to imagine even a favorable Supreme Court ruling in his case fixing the biggest problem with the death penalty itself:   Even in 2016, its use remains inextricably, hopelessly intertwined with our national legacy of racial bias and exclusion.”  Angel Harris also discusses Foster’s case in The Huffington Post; she contends that, while the case “provides the Supreme Court with an opportunity to strengthen the reach of Batson through greater scrutiny of ‘race-neutral’ justifications,” “prosecutors must also be held accountable whenever they exclude jurors on the basis of race by suffering serious penalties for engaging in such unconstitutional conduct.”

Coverage and commentary relating to the death of Justice Antonin Scalia continued over the weekend.  In The National Law Journal (subscription or registration may be required), Tony Mauro reports that, although praising “Garland’s qualifications as a judge, two major civil rights organizations this week raised concerns about Garland’s record on criminal justice and other issues.”  One of those groups, the NAACP Legal Defense and Education Fund, summarized (and linked to) the report on its website.


  • In the ABA Journal, Erwin Chemerinsky looks back at the Court’s recent decisions in two voting rights cases and suggests that there is “the sense that neither of these cases required Supreme Court attention, especially in an era of a very reduced court docket. In neither instance was there a split among the circuits that needed to be resolved.”
  • At Empirical SCOTUS, Adam Feldman looks at the sources for this Term’s merits cases.
  • In an op-ed for The Atlantic, Rick Hasen predicts that, “[a]t some point next year, the U.S. Supreme Court is likely to face a major First Amendment question: whether to overturn what remains of the 2002 McCain-Feingold Act.”
  • In the Los Angeles Times, David Savage observes that, since the death of Justice Antonin Scalia in February, the Court has “voted to take only seven new cases for the fall, about half as many as during the same time last year,” and he adds that “most of the seven involve technical disputes over patents and copyrights or matters of legal procedure that do not split the justices along conservative and liberal lines.”
  • In The Economist, Steven Mazie looks at the battle over Texas’s voter ID law and suggests that, if the court of appeals either fails to rule on the issue or upholds the law, “civil rights groups opposed to the restrictions will almost certainly ask the justices to consider the voter-ID law once again. That will set up another potential 4-4 split, a fresh reminder of the missing ninth justice that America’s 45th president will—if the Senate stays true to its word—get to appoint.”
  • In The New York Review of Books (subscription required), Linda Greenhouse reviews a new book on Title VII’s bar on gender-based employment discrimination, noting (among other things) that “what matters a good deal more than a statute’s birth is its life—including, but not limited to, its life in the hands of the justices of the Supreme Court.”


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Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (May. 9, 2016, 7:11 AM),