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Tuesday round-up

In The National Law Journal (subscription or registration required), Tony Mauro reports on Chief Justice John Roberts’ “2016 Year-End Report on the Federal Judiciary,” in which Roberts “spotlighted the ‘crucial role’ played by federal district judges, asserting they ‘deserve tremendous respect’ for performing the often thankless tasks of the job.” At PrawfsBlawg, Howard Wasserman argues that the report’s lack of any mention of the death of Justice Antonin Scalia “and the political games surrounding that vacancy” suggests that “Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.” At Jost on Justice, Ken Jost also weighs in Roberts’ failure to mention the “fighting over” the Supreme Court and other federal court vacancies, asserting that neither “the court nor the federal judiciary was well served by Roberts’ institutional self-restraint, if that is what it was,” and that federal “judges and those who look to the federal courts for effective and impartial justice might understandably have hoped for and even expected more.”


  • At First Mondays (podcast), Ian Samuel and Daniel Epps break down the court’s latest grants, the February argument calendar and the supplemental briefing order in Jennings v. Rodriguez; they also critique Emily Bazelon’s New York Times Magazine article on Scalia’s attitude towards science.
  • In The National Law Journal (subscription or registration required), Gina Passarella reports that Wachtell, Lipton, Rosen & Katz litigation partner George Conway III, the husband of Kellyanne Conway, Donald Trump’s campaign manager, is now a candidate for U.S. solicitor general; she notes that in “a case that sheds light on both his work at the Supreme Court and his thoughts on presidential powers, Conway represented in his personal capacity Paula Jones, the former Arkansas state employee who sued President Bill Clinton for alleged sexual harassment.”
  • In an op-ed in the Denver Post, Joseph Smith Jr. weighs in on Endrew F. v. Douglas County School District, in which the court will determine what level of educational benefit students with disabilities must receive, positing that the “absurdity” of the proposition that “even a barely detectable educational benefit to Endrew rendered his education ‘appropriate’ under federal law” “might just unite liberals and conservatives, even if they come to the same conclusion for different reasons.”
  • In his Election Law Blog, Rick Hasen notes that North Carolina officials have asked the Supreme Court for emergency relief from a three-judge federal-court ruling requiring the state to hold special elections in 2017 to correct unconstitutional racial gerrymandering in several legislative districts, concluding that the “petition, with Paul Clement as counsel of record, seems unlikely to succeed.”
  • In The National Law Journal (subscription or registration required), Tony Mauro observes that, for the third year in a row, Cato Institute senior fellow Ilya Shapiro “has filed what he calls one of Cato’s ‘funny briefs’ with the U.S. Supreme Court, an amicus curiae brief that celebrates, more or less, the objectionable speech at issue in a First Amendment case,” and that “the unorthodox style of this brief and his previous two has raised eyebrows among members of the staid Supreme Court bar.”
  • In The New Yorker, Lincoln Caplan remarks that “when it comes to the death penalty,” “the U.S. has ended up in some rough company,” ranking “with countries that conspicuously are not in full compliance with their international obligations”; he notes that in “the past generation, the number of countries that have stopp[ed] using the death penalty has doubled, from about fifty to about a hundred,” and that if the Supreme Court “continues to uphold the death penalty, … the gap between the U.S. and a large and growing majority of the rest of the world will continue to increase.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jan. 3, 2017, 6:16 AM),