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Tuesday round-up

Yesterday the Supreme Court declined to review a death penalty case, Elmore v. Holbrook, that it had considered at eight prior conferences. Justice Sonia Sotomayor wrote a strong dissent, which was joined by Justice Ruth Bader Ginsburg. Amy Howe covers the decision for this blog. Commentary comes from Kent Scheidegger at Crime and Consequences, who observes that if “the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.” And at Empirical SCOTUS, Adam Feldman analyzes trends in the justices’ dissents from denial of certiorari, which “are part of a whole species of Supreme Court decision-making that takes place outside of the Court’s plenary review,” for the 2010 through 2015 terms.

At Bloomberg, Greg Stohr observes that in “a presidential campaign unlike any other, the U.S. Supreme Court has been treated almost as an afterthought, but that will change on Wednesday night,” when the court will be a featured subject at the final presidential debate; he formulates “some of the most pressing questions for the two candidates to answer.” At The Atlantic, Conor Friedersdorf unpacks the “argument that conservatives reluctant to vote for Trump should hold their noses, for the sake of judicial appointments,” and concludes that “a close analysis of actual cases shows that four years of Hillary Clinton will no more permanently or irreversibly change the Supreme Court than did 8 years of Ronald Reagan or Barack Obama—and that a Trump victory would as likely mean setbacks for originalism than advances for the judicial philosophy, given undeniable aspects of the erratic billionaire’s agenda.” At NPR, Nina Totenberg reports that “Sen. John McCain (R-Ariz) said Monday that if Hillary Clinton is elected, Republicans will unite to block anyone she nominates to the Supreme Court” and that “that’s why it is so important that Republicans retain control of the Senate.”


  • In The New York Times, Adam Liptak reports on Hernandez v. Mesa, a case asking whether the parents of a Mexican teenager who was shot and killed on the Mexican side of the border between the United States and Mexico by a U.S. Border Patrol agent can sue the agent “for violating the Constitution by using excessive force.”
  • At The Wall Street Journal, Jess Bravin reports that “Edwin Meese III and Robert Morgenthau, two law-enforcement legends from different political camps, have joined forces for an unlikely cause: freeing a convicted murderer from Alabama’s death row”; the two both “want the Supreme Court to hear an appeal from William Ernest Kuenzel, who claims that procedural rules have prevented him from introducing new evidence supporting his innocence in a 1987 robbery and murder.”
  • At First Mondays (podcast), Ian Samuel and Dan Epps discuss court-related news from last week, including Justice Ruth Bader Ginsburg’s comments about NFL players’ refusals to stand for the national anthem, the week’s oral arguments and new grants, and the court’s per curiam opinion in Bosse v. Oklahoma.
  • At The World and Everything in It (podcast), Mary Reichard reports on last week’s oral arguments in Manuel v. City of Joliet, which involves a Fourth Amendment challenge to an unlawful detention, and Salman v. United States, an insider trading case.
  • At Philanthropy, Justin Torres highlights the Supreme Court clinic at George Mason University’s Antonin Scalia Law School, “an exceedingly rare law-school clinic not focused on left-leaning activism.”
  • At The American Prospect, Simon Lazarus contends that the court’s business-friendly jurisprudence is largely to blame for corporate banking abuses such as Wells Fargo’s “too-big-to-whitewash scheme of charging customers for two million bogus accounts,” arguing that “the Roberts Court in particular has neutralized various federal and state provisions designed to redress and deter precisely the type of small bore, large-scale fraud perpetrated by Wells Fargo.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Oct. 18, 2016, 7:58 AM),