Breaking News

Monday round-up

This morning the court hears oral argument in two cases. First on the agenda is Murr v. Wisconsin, in which the court will consider what constitutes the “parcel as a whole” for the purpose of regulatory takings analysis. Miriam Seifter had this blog’s preview. At Cornell University Law School’s Legal Information Institute, Eugene Temchenko and Nick Velonis have another preview. At PrawfsBlawg, Roderick Hills argues that the property-owners’ position may “actually undermine the security of private property, because by “elevating one aspect of state property law — lot lines — over all others, their broad reading of Takings doctrine would give state and local governments enormous incentives to make subdivision of large parcels very difficult.” In Forbes, J.V. DeLong argues that “the real questions underlying this case” “are matters of due process, equal protection, and arbitrary government action.”

The second case on the argument docket is Howell v. Howell, a dispute between a divorced couple over the wife’s share of the husband’s military retirement pay. Amy Howe previewed the case for this blog. Kara Goad and Elizabeth Sullivan preview the case for Cornell. The George Washington Law Review’s On the Docket previews all the cases on the March argument calendar.

The Senate hearing on the nomination of Judge Neil Gorsuch to the Supreme Court begins today. At NPR, Nina Totenberg reports on what to expect, noting that so far, “Gorsuch critics have been having difficulty getting traction — having been trumped, as it were, by other controversies,” but that “there has been plenty going on behind the scenes.” In The New York Times, Jennifer Steinhauer looks at Sen. Chuck Grassley and Sen. Dianne Feinstein, the top Republican and Democrat on the Judiciary Committee, who will preside over the hearing. In The Washington Post, Ed O’Keefe and Robert Barnes survey various issues that are likely to be the focus of questioning by Democratic senators, noting that many “conservative activists and GOP lawmakers say that the laundry list of Democratic concerns is evidence that they don’t quite know how to pin down Gorsuch.” In The New York Times, Carl Hulse reports that “Senate Democrats appear to have two options: Get out of the way or get run over.” At The Economist’s Espresso blog, Steven Mazie previews the hearing.

In The New York Times, Adam Liptak surveys four confirmation battles that shaped the court, and Clyde Haberman looks back at the memorable hearing on Judge Robert Bork in 1987. Also in The New York Times, Liptak offers “advice, reflections and criticism from former nominees who successfully navigated the process.” In The National Law Journal (subscription or registration required), Marcia Coyle and Tony Mauro examine several other memorable confirmation hearings. In The New York Times, Adam Liptak reports that “Gorsuch is likely to be confirmed, though perhaps only after a momentous revision to Senate practices to eliminate the filibuster against Supreme Court nominees,” but that “justices and others worry about the cost to the Supreme Court’s authority when its members are portrayed in starkly political terms.”

In The Washington Post, Robert Barnes reviews several Gorsuch rulings that “liberal and conservative legal activists” “say best illustrate how Gorsuch sees the law.” In The Wall Street Journal, Jess Bravin reports that Gorsuch’s “provocative persona” in college evolved over time into a “conciliatory posture toward those with views to his left,” and that it “isn’t clear what prompted Judge Gorsuch’s transformation from ideological provocateur to evangelist of civility.” In The New York Times, Eric Lipton and Jeremy Peters report on the role of Leonard Leo, the executive vice president of the Federalist Society, and other conservative activists in “reshaping the judiciary” by recommending like-minded judges, including Gorsuch, for appointments to the federal bench, noting that although “Gorsuch, 49, is their first test case,” the “conservative activists say more is at stake than just the Supreme Court.” At The Huffington Post, Cristian Farias looks at Gorsuch’s role in defining the level of educational benefit school districts must provide children with disabilities, an issue before the case this term in Endrew F. v. Douglas County School District. At CNN, Daniel Burke examines Gorsuch’s religious background, concluding that “in the black-and-white world of partisan politics, Gorsuch’s writings and religious life show several strands of gray.”

In The National Law Journal (subscription or registration required), Tony Mauro highlights what to watch for during the hearing. At Education Week’s School Law Blog, Mark Walsh offers five things for educators to keep in mind about Gorsuch. At NYU Law, Barry Friedman explains the Supreme Court confirmation “dance-a-thon.” Slate’s Amicus podcast features a discussion with Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, about how the Democrats should handle the confirmation proceedings.

At Reason’s Hit & Run blog, Damon Root urges senators to question Gorsuch in three areas: congressional power, executive power and unenumerated rights. In The Nation, Ari Berman asserts that senators should question Gorsuch about his view on voting rights, because “Gorsuch, if confirmed, could be the deciding vote on whether to weaken the remaining sections of the VRA and whether to uphold discriminatory voter-ID laws and redistricting plans from states like North Carolina and Texas.” In an op-ed for The Hill, Trevor Potter argues that Gorsuch “should be thoroughly scrutinized until he answers specific questions about his view on money in politics.” The editorial board of the Los Angeles Times asserts that “it’s important that senators engage him in a dialogue about his view of the court’s role that goes beyond hot-button issues such as abortion, guns and gay rights.” At the Brennan Center for Justice, Andrew Cohen suggests that Gorsuch could learn from his grandfather John Gorsuch, a Denver lawyer who “brought a level of empathy and compassion to the law,” but worries that there “is no reason today to believe his grandson will follow that lead.”

At The Huffington Post, Christopher Kang argues that Gorsuch’s tenure at the Justice Department, ties to a conservative Colorado billionaire, and recent high-profile dissents raise “questions about Judge Gorsuch’s independence” and increase the public’s need to “know how the Federalist Society and Heritage Foundation communicated with him—and with Trump’s campaign, transition team, and administration—in vetting him and resolving ‘potential strikes’ against him.” At Jost on Justice, Ken Jost remarks on the Federalist Society’s role in picking Gorsuch. In an op-ed in Bloomberg, Michael Bloomberg warns against the dangers of “extreme partisanship” and cautions that rather “than overplay their hand, Democratic senators should use the confirmation hearing to ask questions that reveal how Gorsuch thinks about legal questions, rather than what he thinks about particular issues.”


  • Bill O’Reilly’s The Contributing Factor podcast features a discussion of “the inner workings of the nation’s highest court with Fox News anchor and Supreme Court correspondent Shannon Bream.”
  • At PrawfsBlawg, Richard Re looks at the Supreme Court’s practice of abandoning “longstanding or widespread readings of its own precedents by blaming a dissenting opinion.”
  • At Lock Law Blog, Ryan Lockman discusses County of Los Angeles v. Mendez, a Fourth Amendment case stemming from a police search that resulted in a shooting, observing that this may be “a rare case when conservative legal principles functionally expand police shooting liability.”
  • At PrawfsBlawg, David Fontana unpacks the result of a recent poll on the Supreme Court conducted by C-SPAN and PBS.

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Mar. 20, 2017, 7:38 AM),