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Monday round-up

Coverage and commentary on the implications of Donald Trump’s election for the Supreme Court, and the federal judiciary more broadly, continue. At Constitution Daily, Lyle Denniston suggests that Justice Anthony Kennedy’s “already powerful presence on the court will become even greater.” At Fortune, Jeff John Roberts addresses “five questions affecting the short- and long-term future of the Supreme Court that the legal community should be asking.” In The Huffington Post, Allan Ides criticizes what he calls the “undemocratic Constitution,” but he expresses hope that the judiciary may exercise some restraints on the other branches of government, noting that “it would be delicious irony if the unelected judiciary became the vehicle through which a true democracy could emerge.” Sharon Driscoll interviews members of the Stanford Law School faculty about the Supreme Court and the election of Donald Trump for the law school’s Legal Aggregate blog.

In Politico Magazine, Jeffrey Rosen suggests that “the more lasting effect of the Trump presidency could be his power to shape the Supreme Court.” However, Rosen continues, because “conservative constitutionalist judges would impose at least some limits on congressional and executive actions,” “a Trump Court might ultimately be the greatest protection against any constitutional excesses of a Trump presidency.” For The Guardian, Martin Pengelly and Alan Yuhas reports on “conflicting messages” from Trump, who says “he will appoint justices who will send abortion rights ‘back to the states,’ but not those who seek to repeal marriage equality ‘because it was already settled.’” Lyle Denniston for Constitution Daily reports on attempts by Oregon Senator Jeff Merkley to pressure GOP leadership to vote on Chief Judge Merrick Garland’s nomination.

For Bloomberg BNA, Patrick Gregory reviews Trump’s two released lists of potential Supreme Court nominees and notes an apparent lack of diversity among the candidates. For their part, Tony Mauro and Marcia Coyle for review five potential nominees whom Trump might select if he “looks for diversity in picking a replacement for the late Antonin Scalia.” For Forbes, Michael Bobelian addresses the possible responses of Democratic senators to any actual Supreme Court nominations.

Addressing more specific areas of jurisprudence, at CitiesSpeak, Lisa Soronen addresses these possible effects on state and local governments, and concludes that the “biggest change for now” on the Supreme Court’s impact “could be the cases the Court will consider.” For Federal Regulations Advisor, Leland E. Beck focuses on the regulatory transition from Obama to Trump with in three different areas of law: transgender rights in Gloucester County School Board v. G.G., immigration regulation in United States v. Texas, and the False Claims Act in State Farm Fire and Casualty Co. v. United States ex rel. Rigsby.

For Modern Democracy, Michael Parsons reviews two upcoming redistricting cases in the December sitting, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. Parsons urges the Supreme Court to “take this opportunity to restore clarity and common sense to its gerrymandering jurisprudence.” The George Washington Law Review’s On the Docket summarizes a preview with Paul Clement on these same cases.

At The Economist’s Democracy in America blog, Steven Mazie reviews last week’s argument in Bank of America Corp. v. City of Miami, in which the justices are considering whether cities can sue banks under the federal Fair Housing Act for predatory lending practices, and he concludes that a 4-4 tie could “relieve the justices of the burden of writing a substantive decision.” At Jost on Justice, Ken Jost provides additional commentary on the case and the arguments.


  • At Human Rights At Home Blog, Martha Davis reviews last week’s argument in Lynch v. Morales-Santana, an equal protection challenge to a federal nationality statute that sets different standards for transmitting citizenship to a child born abroad to unmarried parents depending on whether the mother or the father was a U.S. citizen.
  • At the Human Rights At Home Blog, Jeremiah Ho weighs in on Gloucester County School Board v. G.G., this term’s transgender bathroom case, urging the justices to “use the existing dignity rhetoric” from Lawrence v. Texas, not the later marriage cases United States v. Windsor and Obergefell v. Hodges.
  • Yesterday the staff at the National Constitution Center published a “birthday salute” to Justice Louis Brandeis on its blog, Constitution Daily.
  • For USA Today, Richard Wolf reports on Justice Ruth Bader Ginsburg’s opera debut at the John F. Kennedy Center for the Performing Arts, playing the Duchess of Krakenthorp in “The Daughter of the Regiment.”

Recommended Citation: Andrew Hamm, Monday round-up, SCOTUSblog (Nov. 14, 2016, 1:47 PM),