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Monday round-up

The vacant seat on the Supreme Court continues to elicit broad comment. In an op-ed in Time, former solicitor general Donald Verrilli argues that Republican senators’ “obstructionism has ensured that the future of the Supreme Court is at stake on Nov. 8”; he notes that though “the person who fills Scalia’s seat will likely cast a decisive vote on many issues that matter most to the American people,” “something even more profound is on the line in this election: the public’s faith in the Supreme Court as an institution of law and not politics.” In The Morning Call, Elizabeth Wydra decries the Senate nomination stalemate, maintaining that the refusal to take any action on the nomination is “paralyzing the high court when the eight justices are evenly divided, and chipping away at the court’s stature and credibility by injecting it with politics.” Slate’s Amicus podcast features a discussion with high-level presidential advisors of President Barack Obama’s handling of the Supreme Court vacancy.

Advice and Consent (podcast) covers the candidates’ discussion of the court during the second presidential debate, and the implications of their comments for the nomination of Chief Judge Merrick Garland, as well as the inclusion of the court as a topic during this week’s third and final debate. The editorial board of The Washington Post weighs in on Hillary Clinton’s statement during the second debate that she would appoint Supreme Court justices who would “rule in specific ways on particular issues,” arguing that “Ms. Clinton should have more respect for the independence and dignity of the judiciary as a co-equal but non-political branch of government.” And in The Atlantic, Russell Berman argues that “an obsession with the Court” is prompting prominent Republicans “to continue backing a candidate they plainly detest.”

Coverage of last week’s argument in Pena-Rodriguez v. Colorado, which involves racial bias in jury deliberations, comes from Lyle Denniston at Constitution Daily, who observes that “at least some of the Justices were simply set against opening up jury deliberations to post-trial challenges, and used their questioning to raise doubts about whether that would be workable at all.” In The Economist, Steven Mazie also reports on the argument, concluding that the “tenor of the oral argument suggests that a majority of the justices may be on Mr Peña-Rodiguez’s side.” Commentary comes from Ken Jost at Jost on Justice, who observes that jurors “may bring other kinds of bias into the jury room, but those cases are no reason to back away from one limited safeguard against the racial discrimination that still pervades criminal justice in the United States,” and from Mark Joseph Stern in Slate, who asks how, if Chief Justice John Roberts does not recognize the pernicious effects of racial bias in this case, Roberts can “ever again insist with a straight face that he’s America’s chief justice of colorblindness.”

In The New York Times, Alan Blinder reports on the aftermath of the Supreme Court’s decision last term in Hurst v. Florida, in which the court held that Florida’s capital sentencing system violated the Sixth Amendment; on remand for resentencing in Hurst, the Florida Supreme Court has ruled that “the death penalty cannot be imposed without the unanimous consent of a jury, deepening the recent turmoil around capital punishment in a state with a long history of executions.” Additional coverage of the decision comes from Dan Sullivan and others in the Tampa Bay Times; commentary comes from Kent Scheidegger at Crime and Consequences.

At Constitution Daily, Lyle Denniston reports that Justice Ruth Bader Ginsburg has reconsidered her comments in an interview last week characterizing professional athletes’ refusals to stand for the national anthem as “dumb” and “disrespectful”; Ginsburg issued a later statement describing the comments as “’inappropriately dismissive and harsh,’” “demonstrating anew the hazards of unguarded comments off the bench.” At Vox, Victoria Massie reports that NFL quarterback Colin Kaepernick called Ginsburg’s original remarks ‘’disappointing’”; she also comments on Ginsburg’s later statement of regret.

In a New York Times obituary, Richard Severo and William McDonald detail the career of pioneering civil rights attorney Jack Greenberg, “a lawyer who became one of the nation’s most effective champions of the civil rights struggle, leading the NAACP Legal Defense and Educational Fund Inc. for 23 years and using the law as a weapon in its fight for racial justice before the United States Supreme Court,” who died on October 12 at the age of 91. More coverage of Greenberg’s life comes from Eyder Peralta at NPR, Matt Ford in The Atlantic, and Gary Gately at The Washington Post. NPR’s Fresh Air rebroadcasts portions of two conversations with Greenberg, one in 1994 and one in 2004.


  • Counting to 5 (podcast) features a discussion of last week’s oral arguments and per curiam decision, as well as “a quick look at three new cases the Court has agreed to hear.”
  • In The Atlantic, Garrett Epps discusses Hasty v. Turkmen, a case stemming from post-9/11 detentions, noting that the plaintiffs, “a group of non-citizens who were arrested on flimsy pretexts, confined without recourse, and brutalized by their jailers,” “have been seeking their day in court for 13 years; last week’s grant of review by the high court is probably a sign that they will never get it.”
  • In The New Jersey Law Journal (registration or subscription required), Steven Sanders discusses Beckles v. United States, an upcoming case involving whether a residual clause in the sentencing guidelines is unconstitutionally vague and if so, whether a ruling to that effect should be retroactive; he concludes that the “government’s retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants.”
  • At Bloomberg BNA, Kimberly Robinson takes a look at last week’s argument in Manuel v. City of Joliet, in which “the high court considered how individuals subject to police misconduct could bring federal civil rights claims—if at all,” observing that the “specifics of how and when such a claim can be brought could drastically affect the availability of legal relief for victims of police misconduct.”
  • At Constitution Daily, Maggie Baldridge reports on last week’s argument in Samsung v. Apple, the high-stakes design patent dispute, noting that “the Court must consider the risk of either stifling innovation in the tech world or creating an avenue for ‘copycats.’”
  • At Article 8, Daniel Hensel discusses last week’s per curiam decision in Bosse v. Oklahoma, a death penalty case involving the use of victim impact statements in which, “in a smack-down of, admittedly, less-than-epic proportions, the Supreme Court rejected the Oklahoma Court’s ruling by citing a litany of cases defending the Supreme Court’s sole authority to overrule one of its own precedents.”
  • In The Huffington Post, Rebecca Klein and Cristian Farias report that Gavin Grimm, the transgender student whose request to use the boys’ bathroom at his high school gave rise to Gloucester County School Board v. G.G., on the list of petitions for review the court considered at its conference last Friday, hopes that the court will decline to take the case and alleviate the pressure he feels from being “the public face of a polarizing issue.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Oct. 17, 2016, 7:36 AM),