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Wednesday round-up

As the Supreme Court and the nation honor Justice Ruth Bader Ginsburg, the court’s regular work continues. As Amy Howe reports for SCOTUSblog (in a story first published at Howe on the Court), the Trump administration on Tuesday asked the justices to weigh in on a dispute involving the 2020 census and whether people living in the country illegally can be excluded from the count used to determine congressional apportionment. Also on Tuesday, the justices declined to grant emergency relief to William LeCroy, who shortly after the court’s decision became the sixth federal inmate to be executed this year. SCOTUSblog’s Katie Bart has the story.

Most of the attention, however, continues to be on Ginsburg, her legacy, and what happens next with her open seat.

In a Washington Post op-ed, Aziz Huq and Pam Karlan reflect on Ginsburg’s background representing underdogs before she became a judge — and how that background brought a valuable perspective to the Supreme Court. “[T]he court is the sum of its members’ legal experience, and following Ginsburg’s death, there will be no justice who has experience representing people whom the law has excluded from full membership in American society,” Huq and Karlan write.

In the New York Review of Books, David Cole writes that, “[w]ith the exception of Thurgood Marshall, no Supreme Court justice did more to realize the Constitution’s promise of ‘equal protection of the law’ than Ruth Bader Ginsburg.” At Prawfs Blawg, Howard Wasserman reflects on the Ginsburg-Marshall comparison as well. Wasserman also writes on the changing nature of the court with each new appointment and analyzes two different proposals to restructure the court. Other academics share their thoughts on Ginsburg’s legacy in a collection of short tributes from the Stanford Law faculty. And at the Human Rights at Home Blog, Margaret Drew writes that, while Ginsburg’s achievements for gender equality are in jeopardy, Ginsburg “showed the way and it is up to the rest of us to continue resistance.”

In Newsweek, John Yoo and James Phillips argue that President Donald Trump should select a proven originalist to succeed Ginsburg. “A track record of judicial and scholarly writing committed to originalism will ensure that a nominee shares the president’s constitutional values and will not shrink from a fight,” they write. In The Economist, Steven Mazie examines the five women on President Trump’s shortlist for the open seat, noting that all five candidates “have ties to the Federalist Society, a conservative legal organisation that has found great success grooming young lawyers for the bench.” In The Washington Post, Michael Bailey writes that, “[i]f the Senate were to confirm a Trump nominee, the court would become more conservative than it has been since 1950 — both more conservative than previous courts, and potentially as far away ideologically from the elected branches of government as it has been in a long time.” And in his Supreme Court Report column for the ABA Journal, Mark Walsh looks at the history of Supreme Court nominations in presidential election years.

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Recommended Citation: James Romoser, Wednesday round-up, SCOTUSblog (Sep. 23, 2020, 8:59 AM),