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Thursday round-up

In The National Law Journal (subscription or registration required), Tony Mauro suggests that “U.S. Supreme Court nominee Neil Gorsuch may have helped cement his chances for confirmation Wednesday night by telling senators that President Donald Trump’s critical tweets of federal judges were ‘disheartening’ and ‘demoralizing,’” because “Gorsuch’s comments could have the effect of telegraphing to the legal establishment and to the Supreme Court itself that he embraces the importance of judicial independence.” Coverage of Gorsuch’s remarks comes from Julie Hirschfeld Davis in The New York Times and from Abby Phillip and others in The Washington Post. At the Election Law Blog, Rick Hasen calls Gorsuch’s comments “a smart political move” that was likely “strategized and vetted with the team seeking to secure his nomination,” and predicts that at “the hearings, I expect regardless of how many ways and how many times Democrats ask, Judge Gorsuch will not go much beyond ‘disheartening’ and ‘demoralizing.’”

In The New York Times, Adam Liptak offers a step-by-step report on the process leading up to Gorsuch’s nomination, noting that “Mr. Trump’s team is already looking down the road, weighing the choices should Justice Anthony M. Kennedy decide to step down,” and that an administration official named federal appeals court judges Raymond Kethledge and Brett Kavanaugh as possible candidates. At the Pew Research Center’s Fact Tank, Kristen Bialik and John Gramlich note that Gorsuch, at 49, “would be a relatively young new member of the court”; they look at data on the age of previous and current justices and conclude that, with “plenty of exceptions,” “justices who are younger when they join the court … end up serving longer than older appointees.”


  • Howard Fischer of Capitol Media Services (via reports that lawyers “for Tucson are asking the U.S. Supreme Court to spurn a bid by Republican interests to kill the city’s unique system of electing council members.”
  • At California Lawyer, Gregory Rolen discusses Endrew F. v. Douglas County School District, in which the court will decide what level of educational benefit students with disabilities must receive, concluding that one “reality, however difficult it may be in the real world of public education, is that an all-inclusive, ever-elusive, bright-line test will remain out of reach.”
  • At Empirical SCOTUS, Adam Feldman looks at how the Supreme Court has ruled over the last few decades in cases of executive power and in decisions involving rulings by the U.S. Court of Appeals for the 9th Circuit, in an attempt to shed light on how the court might treat an appeal of an appeals court ruling on the current legal challenge to President Donald Trump’s executive order on immigration.
  • A podcast from the Pacific Legal Foundation features a discussion of Murr v. Wisconsin, in which the court will decide what constitutes the “parcel as a whole” for the purpose of takings analysis and which the justices have scheduled for argument on March 20.
  • At his eponymous blog, Ross Runkel notes that the Supreme Court has delayed until next term oral argument in three cases that ask whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act, noting that by next October there is likely to be a full complement of justices and citing “the possibility that the Court already sees itself split 4-4, which would create a big problem because there are three consolidated cases with conflicting results and a 4-4 decision would affirm all of them.”
  • In Supreme Court Brief (subscription required), Tony Mauro interviews Lincoln Caplan, the author of a recent book about the court, who maintains that “Justices, by and large, reflect the liberal or conservative inclinations that presidents expect them to have when picking them, because their track record in the law and their professional experience reflect their ‘priors’—the attitudes, beliefs, dispositions, impulses, and so on that they bring to a case even before the apply law to facts.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Feb. 9, 2017, 7:25 AM),