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Friday round-up

Yesterday’s retirement announcement by Justice Anthony Kennedy dominates coverage of and commentary on the court. At NPR, Nina Totenberg examines the impact of the retirement, calling it “the end of the world as we know it, at least at the Supreme Court.” For The New York Times, Adam Liptak and Maggie Haberman report on the White House’s efforts to pave the way for this Supreme Court vacancy. Additional coverage comes from Ann Flaherty at the Associated Press, Robert Barnes for The Washington Post, Lyle Denniston at Constitution Daily, here and here, Amanda Reilly at E&E News, Ariel Wittenberg, also at E&E News, an NPR Politics podcast, Scott Bomboy at Constitution Daily, and David Lat at Above the Law. At The National Law Journal (subscription or registration required), Tony Mauro reports on what happens to Kennedy’s law clerks. Commentary comes from Steven Mazie at The Economist and Dahlia Lithwick at Slate, and First Mondays (podcast).

Commentary on the likely effect of the retirement on various areas of the law comes from Ritchie King and others at FiveThirtyEight, Kyla Mandel at ThinkProgress, Mark Joseph Stern at Slate, here and here, Sarah McCannon at NPR, and Kent Greenfield and Adam Winkler in an op-ed for The New York Times. Politico Magazine collects assessments of the justice’s legacy from “17 top legal thinkers.” Additional commentary on Kennedy’s tenure comes from Dave Rodkey at Jurist and Bruce Ledewitz, also at Jurist, Elizabeth Slattery in an op-ed for The Washington Examiner, Paul Smith for this blog, and Counting to 5 (podcast).

Coverage of the nomination and confirmation process comes from Michael Shear and Thomas Kaplan for The New York Times, Louise Radnofsky and Joshua Jamerson for The Wall Street Journal, Scott Bomboy at Constitution Daily, George Cahlink and Kellie Lunney at E&E News, Nick Bowlin, also at E&E News,  Michael Doyle and Amanda Reilly at E&E News, and NPR’s All Things Considered. Commentary on the nomination process comes from Curt Levey in an op-ed for Fox News, Perry Baker at FiveThirtyEight, Kent Scheidegger at Crime and Consequences, Jodi Jacobson at Rewire.News, Jordan Singer at The Interdependent Third Branch, and USA Today, where legal bloggers weigh in with their recommendations for a replacement. At Fa on First, Wen Fa looks at the record of one of the potential nominees, Judge Raymond Kethledge, on First Amendment issues. At the Yale Journal on Regulation’s Notice & Comment blog, Jennifer Mascott looks at the administrative-law jurisprudence of Judge Brett Kavanaugh, who is also on the president’s list of potential replacements for Kennedy. I have a profile of Kavanaugh for this blog.

The court issued its final batch of orders for the term yesterday. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. First Amendment Blog looks at a summary reversal that revived a woman’s civil rights suit against police officers who ordered her to stop praying. At Crime and Consequences, Kent Scheidegger comments on another summary reversal in a habeas case. Also at Crime and Consequences, Scheidegger writes about Justice Breyers dissent to denial of cert in two capital cases. At the Pacific Legal Foundation, Deborah LaFetra discusses an order directing the lower court to reconsider a First Amendment challenge to a Berkeley, California ordinance requiring retailers to display warnings about unsafe cellphone use.

For The Wall Street Journal, Brent Kendall reports that “[e]ven before Justice Anthony Kennedy’s retirement handed a historic vacancy to President Donald Trump, the year had been a victorious one for conservatives at the Supreme Court.” Now that the term has ended, Oliver Roeder at FiveThirtyEight examines the justices’ voting alignments. At Constitution Daily, Lyle Denniston looks at some of October Term 2017’s First Amendment cases.

At The Conversation, Ruben Garcia points to his own research in Nevada to argue that Wednesday’s decision in  Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court held that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, doesn’t have to “’cripple’” certain unions across the country.” Additional commentary on Janus comes from Lisa Needham at Rewire.News. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Commentary on this week’s decision in Trump v. Hawaii, in which the court upheld the Trump administration’s travel ban, comes from Mariko Hirose and Linda Everts at Rewire.News, Murali Balaji, also at Rewire.News, Elizabeth Slattery in an op-ed for the Sacramento Bee, and Andrew Siegel at PrawfsBlawg, who argues that the opinion “completely failed to engage with the many precedents from all over the Court’s jurisprudence suggesting that deference runs out in the presence of direct evidence of bigotry or to offer a positive account of the boundaries of judicial deference in this crucial area of the law.”

At First Things, Hadley Arkes laments that the opinions in National Institute of Family and Life Advocates v. Becerra, in which the court held on Tuesday that California’s Reproductive FACT Act, which requires crisis pregnancy centers to make disclosures, including about the availability abortions, likely violates the First Amendment, “are quite bereft of any premise or reasoning that would help to plant or even support the pro-life argument.” Additional commentary comes from Mark Miller in an op-ed for The Hill, Jessica Prol Smith at The Federalist, Kevin Theriot at The Federalist, Elissa Graves in an op-ed for Fox News, and Michael Farris in an op-ed for the Los Angeles Times.

At The Daily Wire, Jessica Prol Smith refutes comparisons between the restaurant owner who asked the president’s press secretary to leave her restaurant and the florist in Arlene’s Flowers v. Washington, who declined on religious grounds to design flowers for a same-sex wedding. Additional commentary comes from Chris Potts at Lifezette.


  • Subscript Law has an infographic for the decision in in Florida v. Georgia, in which the court held that the special master applied too high a standard of proof against Florida in its claim of injury from Georgia’s use of the water in the Apalachicola-Chattahoochee-Flint River system.
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro details Cato’s winning amicus-brief record this term.
  • Commentary on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled in favor of a baker who refused on religious grounds to make a cake for a same-sex wedding, comes from Jeremy Tedesco at Colorado Politics.
  • At PrawfsBlawg, Howard Wasserman points out that Nieves v. Bartlett, a case the court added to its merits docket yesterday, gives the justices another chance to “consider the effect of probable cause on First Amendment retaliation claim.”
  • A new episode of the Heritage Foundation’s SCOTUS 101 podcast features a discussion with Bloomberg reporter Kimberly Robinson of “this week’s big decisions (travel ban! Janus! NIFLA! water wars!)” and “who will be the next Supreme Court justice.”
  • At Law360 (subscription required), Daniel Walfish discusses the impact of the court’s decision in Lucia v. Securities and Exchange Commission, in which the court invalidated the appointments of the SEC’s administrative law judges, concluding that“in the near term the SEC (and perhaps other agencies) will have to redo a series of (in some cases fairly old) administrative cases, potentially straining resources and possibly prompting the agency to tap other ALJs.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Jun. 29, 2018, 7:17 AM),