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Friday round-up

In The Washington Post, Robert Barnes and Ed O’Keefe report that “Senate Democrats are requesting more information about Supreme Court nominee Neil Gorsuch’s role defending the George W. Bush administration in lawsuits over terrorism policies and interrogation of detainees.” In The New York Times, Charlie Savage reports on Gorsuch’s job at the Justice Department, which put Gorsuch “at the center of both litigation and negotiations with Congress over legislation about” controversial topics such as “detainee abuses, military commissions, warrantless surveillance and [the Bush administration’s] broad claims of executive power.”

In The Wall Street Journal, Jess Bravin looks at Gorsuch’s ties to Oxford don John Finnis, Gorsuch’s thesis adviser at Oxford, who “revived the academic vitality of natural law, which posits that law’s legitimacy rests on moral values intrinsic to human nature” and which “undergirds much of modern conservative legal thought.” At NPR, Nina Totenberg reports that “the legal road signs” point to “the nominee’s conservatism,” and that although Gorsuch, “has never ruled directly on an abortion question,” “he has ruled on questions involving contraception and public funding for Planned Parenthood — unrelated to abortion,” and “in none of these cases has he sided with advocates of birth control or abortion rights.”

In a column in The New York Times, Linda Greenhouse suggests that senators ask Gorsuch how he would have voted in Buck v. Davis, in which a divided court recently lifted the death sentence of a Texas inmate whose defense expert had testified during sentencing that the defendant was more likely to be violent in the future because he is black, and whether he shares Judge Robert Bork’s “zero-sum theory of rights.” At Just Security, Jennifer Daskal offers a series of specific questions for Judge Gorsuch focused on “at least five key cases during his two years at the Justice Department that involved efforts to defend and shield from review detainee abuse, warrantless wiretapping, and the expansive use of the FBI’s national security authorities,” as well as Gorsuch’s involvement in “policy discussions regarding the contours of the Detainee Treatment Act of 2005, which among other things stripped Guantanamo detainees of the ability to bring habeas challenges their detentions.”

In an op-ed in The Washington Post, retired federal judge James Robertson, who in 1987 “led a team of young lawyers to oppose President Ronald Reagan’s nomination of Robert Bork to the Supreme Court,” argues that it is “time for a truce” in the “Thirty Years’ War on judicial appointments.” In a Bangor Daily News op-ed, Peter Sly wonders how Gorsuch’s “sanctity of life ethic” will affect his attitude towards “our gun suicide epidemic,” noting that recent Supreme Court Second Amendment decisions “facilitate the gun suicide epidemic by fostering guns in the home.” In an op-ed in The Wall Street Journal, Nathan Diament is encouraged by Gorsuch’s expansive view of religious liberty, noting that “when it comes to religious claims under the First Amendment, Judge Gorsuch’s reading of the Constitution may be more generous even than Scalia’s,” and that “those who care about religious liberty may want to pray that he gets the chance to rule on it.”

Constitution Daily’s We the People podcast features a discussion of Murr v. Wisconsin, an upcoming case in which the court will consider what constitutes the “parcel as a whole” for the purpose of regulatory takings analysis. CBN News also covers the case, noting that the Murrs will “fight for their all-American right to sell their own land before the U.S Supreme Court Monday, March 20.” In an op-ed in Twin Cities, Mike Murr, a social-science teacher who is one of the petitioners in the case, looks forward to his day in the Supreme Court, concluding that regardless “of the case outcome, this experience will have enhanced not only my personal life, but also the lessons I bring to my students that the federal judicial system exists to ensure that we are all equal under the law.” In an op-ed in The Washington Times, J. David Breemer weighs in on Murr, arguing that if “the government can get around its duty to compensate when denying all use of a piece of property by aggregating all property owned by a plaintiff (ignoring lot lines) to create a bigger area that has some use as a whole, many Americans with multiple lots will lose constitutional protections.”

At the Associated Press, David Porter reports that “Supreme Court Justice Samuel Alito told an audience Wednesday at an event sponsored by a Catholic lawyers’ organization” that the “U.S. is entering a period when its commitment to religious liberty is being tested,” and that it is “”up to all of us to evangelize our fellow Americans about the issue of religious freedom.’” At Slate, Steven Lubet inquires into whether a recent appearance by Alito at the Claremont Institute violated a “prohibition on fundraising” that is a “long-standing principle of judicial ethics.”


  • In The New York Times, Adam Liptak reports that a “lighthearted” Chief Justice John Roberts presided this week over a fraudulent misrepresentation case against Tom Sawyer brought by the boys whom Sawyer bamboozled into whitewashing a fence.
  • At Sidebars, Randall Eliason discusses the court’s recent decision inPeña-Rodriguez v. Colorado, in which the justices held that evidence that a juror relied on racial animus to convict a criminal defendant trumps a Colorado no-impeachment rule, observing that logic “seems to demand that the Court’s rationale be expanded to other forms of bias in future cases” and that the “decision may have additional unintended consequences.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Mar. 17, 2017, 7:04 AM),