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Friday round-up

Supreme Court coverage and commentary continue to focus on the prospect of a Republican blockade of future nominees to the court in a Democratic administration. At Politico, Burgess Everett reports that “Senate Republicans are choosing sides ahead of a brutal conflict over how to handle the lingering Supreme Court vacancy, with Jeff Flake firing back Thursday at a suggestion by Ted Cruz that the party could indefinitely block any nominee from Hillary Clinton,” and noting that “regardless of Flake’s planned campaign to change Republican minds, Senate Judiciary Chairman Chuck Grassley is not backing off his wintertime vow to block hearings until there’s a new president.” Todd Ruger at Roll Call also reports on Flake’s comments and the Republican rift. At the Associated Press, Kevin Freking reports that Cruz’s remarks drew criticism from White House spokesman Josh Earnest. Additional coverage of the White House response comes from Nicole Duran at the Washington Examiner and John Bennett at Roll Call.

The editorial board of The Washington Post weighs in on Cruz’s remarks, observing that “his message is: We lost the presidency, so let’s take our marbles and go home,” “a primitive approach to politics that suggests a conflict over ideas and policy is not enough, that the opposing side must be annihilated at any cost, even if it leaves the government paralyzed.” At MSNBC, Steve Benen asserts that “Cruz’s comfort with extremist tactics speaks volumes about how he approaches his responsibilities.” At The Washington Post, Paul Waldman also weighs in, arguing that “at the same time they were becoming more ideologically radical, Republicans embraced an unprecedented procedural radicalism, in which they’re perfectly happy to take a sledgehammer to any and all of the norms that enable the government to function.” Also at the Post, Greg Sargent is struck by “how effortlessly the rationale that Senate Republicans themselves offered — for months and months on end — for not acting on Garland this year has been tossed out the window.” For a Post opinion column trifecta, Jennifer Rubin argues that “Cruz’s refusal to learn the lessons of 2016 … presents an intriguing opportunity,” and that “young conservatives seeking a break from the old Republican Party might target” Cruz’s Senate seat. At ThinkProgress, Ian Millhiser looks at a post-Civil War move by Congress to alter the composition of the court, which, he states, had the “practical effect” of denying “any Supreme Court appointments to the white supremacist” Andrew Johnson, observing that there “is precedent for a Congress that simply refused to allow a president to place new justices on the Supreme Court,” but that this “extraordinary tactic was used to keep a white supremacist president from effectively undoing the new birth of freedom thousands of Americans paid for in blood.” And at NPR, Wade Goodwyn and Nina Totenberg assess the political landscape and question whether “this continued refusal to act on the Garland nomination” is “a smart move for conservatives.”

At The Washington Post, Robert Barnes and Sari Horwitz report that an Alaska lawyer has accused Justice Clarence Thomas of groping her at a dinner party in 1999; Thomas has denied the allegations and “Thomas’s supporters rallied quickly to his defense, saying the charges were part of an unrelenting attack on the conservative justice.” Additional coverage comes from Paige Lavender at The Huffington Post and Emily Crockett at Vox.

On Wednesday evening, Thomas offered some rare public remarks at a Heritage Foundation gathering in Washington. Andrew Hamm covered the event for this blog. Additional coverage comes from Richard Wolf for USA Today, who reports that Thomas lamented “that the nation’s capital is ‘broken’ and its institutions of government are being destroyed by an inability to debate issues with civility,” from Louis Nelson at Politico, and from Greg Stohr at Bloomberg, who observes that these “sober remarks stood out in a session otherwise marked by laugh lines and passionate defenses of his constitutional reasoning.” At Mirror of Justice, Kevin Walsh surveys commentators’ assessments of Thomas’ 25 years on the court, contending that Thomas “is one of the most under-appreciated Justices in the history of the Supreme Court of the United States.”

At ACS, Sasha Samberg-Champion discusses Fry v. Napoleon Community Schools, a case to be argued next week stemming from a school district’s refusal to allow a disabled child to bring her service dog to school with her, arguing that the courts have turned the Individuals with Disabilities Education Act, “which is meant to expand the rights of children with disabilities, into a law that also contracts their rights by forcing them into the IDEA dispute-resolution process even for non-IDEA disputes.” Another look at Fry comes from Kevin Golembiewski in the Washington & Lee Law Review’s online edition.


  • In Supreme Court Brief (subscription required), Tony Mauro reports that at a meeting on November 4, the Supreme Court Bar will honor the memory of Justice Antonin Scalia; several former Scalia clerks will speak at the unusual event, which “will put a rare spotlight on the court’s bar.”
  • At this blog, Mark Walsh reports that retired Justice John Paul Stevens, a longtime Chicago Cubs fan, will be in the stands when the World Series moves to Wrigley Field this weekend.
  • In The Washington Post, Robert Barnes reports on remarks by Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor at the New York City Bar Association; when asked about the current vacancy on the bench, Ginsburg responded, “’Eight is not a good number,’” and Sotomayor added, “diplomatically, ‘I think we hope there will be nine as quickly as possible.’”
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen previews Hernandez v. Mesa, an upcoming case stemming from the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent, noting that the “question of most interest to state and local governments” is “whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident.”
  • In the ABA Journal, Mark Walsh looks at Wells Fargo & Co. v. City of Miami and Bank of America Corp. v. City of Miami, two upcoming cases in which the court will decide whether cities can sue banks under the federal Fair Housing Act for predatory lending practices.
  • In an op-ed in The Washington Post, Gavin Grimm, the transgender high school student whose case stemming from his request to use the boys’ bathroom at school, Gloucester County School Board v. G.G., the court is considering whether to review, states: “If the Supreme Court does take up my case, I hope the justices can see me and the rest of the transgender community for who we are — just people — and rule accordingly.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Oct. 28, 2016, 7:42 AM),