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Tuesday round-up

At the Associated Press, Mark Sherman reports on the intersection between the current vacancy on the Supreme Court and the upcoming election, noting that “the stakes are even higher when the president has a chance to put a like-minded justice on the court to take the place of an ideological opponent,” because such “a switch can change the outcome of some of the court’s most important cases.” In an op-ed in The Huffington Post, Marjorie Cohn observes that “Trump and Clinton’s choices for Supreme Court justices could not be more philosophically dissimilar” and highlights the conservative records of several of Trump’s prospective nominees. At Bloomberg, Patrick Gregory profiles Michigan Supreme Court Chief Justice Robert Young, who is on Trump’s list of candidates for nomination. At, Damon Root looks at recent statements by Republican senators assessing the prospect of Senate hearings on the nomination of Chief Judge Merrick Garland; he argues that such hearings “would be a positive development because they might force conservative lawmakers to publicly air their differences” on “crucial legal questions.” And at MSNBC, Steve Benen reports that Sen. Chuck Grassley, the chairman of the Senate Judiciary Committee, cited the expense of hearings as a reason not to conduct them.


  • At Constitution Daily, Lyle Denniston reports on three controversial cases that the court agreed to hear last January, before the death of Justice Antonin Scalia, but still has not scheduled for argument, speculating that the cases “remain in a scheduling limbo” because “the Justices are inclined to think that those cases would only wind up in 4-to-4 splits, settling nothing.”
  • The editorial board of The New York Times, citing a Pew Research poll showing that less than half of Americans now support the death penalty, argues that “the loss of majority support is an important marker against state-sanctioned killing,” and asserts that “it is long past time for the court to send this morally abhorrent practice to its oblivion.”
  • The World and Everything in It (podcast), features discussions of two cases from the court’s October sitting: double-jeopardy case Bravo-Fernandez v. United States and Pena-Rodriguez v. Colorado, a case involving racial bias during jury deliberations.
  • At the Council of State Governments’ Knowledge Center blog, Lisa Soronen discusses Nelson v. Colorado, in which the court will decide “whether it violates due process to require criminal defendants whose convictions have been reversed to prove their innocence by clear and convincing evidence to receive refunds of monetary penalties they have paid.”
  • At In a Crowded Theater, Erica Goldberg offers an overview of the First Amendment issues presented by Lee v. Tam, which asks “whether the federal government can deny registration to trademarks that disparage individuals or groups”; she notes that the “facts of this case are particularly striking, because the trademark for the band The Slants was registered by Simon Shiao Tam to make a statement against racism and stereotyping.”
  • At Politico, Louis Nelson reports that Justice Stephen Breyer seems “mostly unconcerned by the prospect” that a contested presidential election might end up before the eight-member court; in an interview on MSNBC, Breyer predicted that “the court, currently split evenly between liberal and conservative justices, would function ‘about the same’ if this year’s presidential election were to play out like the protracted legal battle over the 2000 race for the White House.”
  • At Balkinization, Rick Pildes notes that this year marks Justice Clarence Thomas’s 25th anniversary on the court, and refers readers to an earlier symposium on Thomas’ jurisprudence.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Oct. 25, 2016, 6:24 AM),