Sotomayor protests court’s refusal of appeals

Sotomayor, Kagan shift Supreme Court debates to the left

    Los Angeles Times: “For most of the last two decades, Supreme Court conservatives led by Justice Antonin Scalia dominated the debates during oral arguments. They greeted advocates for liberal causes with sharp and sometimes caustic questions, putting them on the defensive from the opening minute. But the tenor of the debate has changed in recent months, now that President Obama’s two appointees to the court, Sonia Sotomayor and Elena Kagan, have joined the fray and reenergized the liberal wing.”


  • Posted: 12/28/2010
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  • Category: Bench & Bar
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  • Source: articles.latimes.com

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Supreme Court petition to watch: Do Equal Terms and Unreasonable Limitations provisions of RLUIPA violate Establishment Clause

Law Review: Originalism and Summary Judgment

    Brian T. Fitzpatrick, Originalism and Summary Judgement (December 16, 2010). Ohio State Law Journal, Vol. 71, No. 5, p. 919, 2010; Vanderbilt Law and Economics Research Paper No. 10-38; Vanderbilt Public Law Research Paper No. 10-47. Available at SSRN: http://ssrn.com/abstract=1727436

    “Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an ‘originalist’ method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar ‘originalist’ revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges to resolve a set of cases – those where the sufficiency of a party’s evidence is in dispute – that could only be resolved by juries at the time the Seventh Amendment was ratified. In this Article, I argue that Professor Thomas’s historical findings are an insufficient basis from which an originalist might conclude that summary judgment is unconstitutional. In order to conclude that the Seventh Amendment requires juries to resolve cases where the sufficiency of a party’s evidence is in dispute, an originalist would need to know more about the jury trial in 1791 than the fact that juries had the exclusive power to resolve such disputes. Not everything that juries did in 1791 was understood to be unchangeable absent a constitutional amendment. In order to separate the things that juries did that were important to the Seventh Amendment from the things that they did that were not, one must assemble a frame of reference external to the jury practices themselves. This external frame of reference might be assembled from many places – a comparison of founding-era lexicons to the constitutional text, an examination of founding-era statements on the question, an assessment of the original purposes of the Seventh Amendment, etc. – but it has to be assembled from somewhere. Professor Thomas has not yet focused her energies here. As such, more work may need to be done before an originalist would conclude summary judgment is unconstitutional.”


  • Posted: 12/21/2010
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  • Category: Bench & Bar
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  • Source: ssrn.com

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The role of law clerk numbers in the rise of the Supreme Court bar

SCOTUSblog: Virginia pondering own appeal on health

The Supreme Court and Obama’s health care law

    John Schwartz writing in the New York Times: “Professor Freedman of Hofstra noted that even if the justices were reluctant to accept the government’s primary argument that inactivity can be controlled under the Commerce Clause, there are other grounds for finding the health care law constitutional. The most attractive to the court, he suggested, might be categorizing the fine for not buying health care as a tax. He noted that a while only a handful of cases had restricted the power of Congress, under the Commerce Clause, the power to tax has almost always been upheld.”


  • Posted: 12/20/2010
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  • Category: Miscellaneous
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  • Source: www.nytimes.com

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SCOTUSblog: Delay on health care appeal?

Scalia to address Michele Bachmann’s group

Dahlia Lithwick at Slate: When do Supreme Court justices need to just sit down and be quiet?

    Dahlia Lithwick writing at Slate: “How can we balance a justice’s desire to get things off his chest against the need to protect our collective faith in the institution that cannot exist when that faith is annihilated? And how can we do so without permanently sacrificing the valuable insights we stand to gain by listening to those select few whose vantage point is unparalleled?”


  • Posted: 12/15/2010
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  • Category: Bench & Bar
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  • Source: www.slate.com

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Sen. Sessions: Supreme Court won’t overthrow DADT

Kagan says “steep learning curve” on Supreme Court

High court rejects appeal seeking bigger US House

Law Review: The Judicial Genealogy (and Mythology) of John Roberts

    Brad Snyder, The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts (December 8, 2010). Ohio State Law Journal, Vol. 71, No. 1149, 2010; Univ. of Wisconsin Legal Studies Research Paper No. 1146. Available at SSRN: http://ssrn.com/abstract=1722362

    “During his Supreme Court nomination hearings, John Roberts idealized and mythologized the first judge he clerked for, Second Circuit Judge Henry Friendly, as the sophisticated judge-as-umpire. Thus far on the Court,Roberts has found it difficult to live up to his Friendly ideal, particularly in several high-profile cases. This Article addresses the influence of Friendly on Roberts and judges on law clerks by examining the roots of Roberts’s distinguished yet unrecognized lineage of former clerks: Louis Brandeis’s clerkship with Horace Gray, Friendly’s clerkship with Brandeis, and Roberts’s clerkships with Friendly and Rehnquist. Labeling this lineage a judicial genealogy, this Article reorients clerkship scholarship away from clerks’ influences on judges to judges’ influences on clerks. It also shows how Brandeis, Friendly, and Roberts were influenced by their clerkship experiences and how they idealized their judges. By laying the clerkship experiences and career paths of Brandeis, Friendly, and Roberts side-by-side in detailed primary source accounts, this Article argues that judicial influence on clerks is more professional than ideological and that the idealization of judges and emergence of clerkships as must-have credentials contribute to a culture of judicial supremacy.”


  • Posted: 12/10/2010
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  • Category: Bench & Bar
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  • Source: ssrn.com

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On illegal aliens, Arizona may win – for now

    Lyle Denniston writing at SCOTUSblog: “States and cities may gain added power to take some steps to control the lives of illegal aliens, if the hints that emerged in a Supreme Court hearing Wednesday shape the Justices’ final reaction to an Arizona law. But that added authority might well rest on a thin reed: a 4-4 split among the Justices that would not control the next time such an alien control law came before the Court. Those prospects loomed as the Court spent an hour examining U.S. C hamber of Commerce v. Whiting (09-115), but without Justice Elena Kagan on the bench.”


  • Posted: 12/09/2010
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  • Category: Miscellaneous
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  • Source: www.scotusblog.com

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SCOTUS argument preview: Assessing an Arizona immigration law

Ah, Reinhardt

Supreme Court rejects appeal on Va. alcohol ad ban

Supreme Court to review Ariz. campaign finance law

Scalia: Founders never thought “gay sex” and abortion were protected liberties

Scalia “wouldn’t have liked” being Chief Justice

“Justices are long on words but short on guidance”

    Adam Liptak writing in the New York Times: “The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship. In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.”

    Orin Kerr responds at The Volokh Conspiracy: “No matter what Supreme Court opinions look like, there will always be someone who criticizes them for not being clear enough . . . In my experience, judges and lawyers in the lower courts know exactly what to do with concurrences in Supreme Court opinions that don’t provide the crucial vote. For the most part they just ignore them, unless the concurrences happen to have some language that the lawyer or judge needs to support the argument they’re making anyway.”


  • Posted: 11/19/2010
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  • Category: Bench & Bar

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Scholar presses for more Supreme Court diversity

Supreme Court should “adjust its severe approach to content-based regulations”

Clarence Thomas’ wife quits Tea Party-linked group

Law Review: Endorsement Test in Salazar v. Buono

    Endorsement Test
    124 Harv. L. Rev. 219

    “For the last two decades, the endorsement test has been the touchstone inquiry in Establishment Clause challenges. This highly contextual test considers whether a reasonable observer would deem a government action or display to have the purpose or effect of endorsing religion. The Supreme Court has long resisted bright-line rules that would limit this contextual analysis only to those messages that are government owned or controlled. Last Term, in Salazar v. Buono, the Supreme Court overturned an injunction that barred Congress from transferring a Latin cross to private ownership. Congress sought to transfer the cross, which stood on federal land, in order to cure an Establishment Clause violation. Although the Buono Court technically declined to consider whether the transfer itself constituted impermissible endorsement, a majority of the Court indicated that it would not apply the endorsement test to a now privately owned display. The Court thus appears to be moving toward a circumscribed version of its endorsement test, applying the test only to publicly owned or controlled messages.”


  • Posted: 11/16/2010
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  • Category: Religious Liberty

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Supreme Court justices spar on Lubbock stage

First signed opinion of Supreme Court term coming Monday

New York Times: Video games and the First Amendment

How obscene is video game violence?

ACSTO: So what did the Supreme Court think?

Bush: “The Wolves of Washington” and the Roberts/Miers/Alito Nominations

Ken Klukowski: Supreme Court weighs AZ tax credit for Christian schools

Supreme Court to hear argument on the citizenship rights of non-marital children, part 2

Kagan may decide ObamaCare despite admin role

Cert. filed in Seventh Day Adventist case: Does RFRA apply to suits between private parties?

Supreme Court allows child custody ruling in favor of former lesbian partner versus mom to stand

Supreme Court to hear argument on the citizenship rights of non-marital children

SCOTUSblog: Last week’s arguments in Plain English

High court turns down early health care challenge

David French on tax-credit voucher programs

SCOTUSblog: Ten Commandments issue — again

Ken Klukowski: Does First Amendment require selling violent video games to children?

Retired Justice Stevens says Americans should accept mosque near Ground Zero in spirit of tolerance

Solicitor general surprises justices with standing argument in religious schools case

AZ school choice case: Does it hinge on whether the government owns everything?

Supreme Court argument recap: “Common sense” and violence

Supreme Court weighs tax credits for AZ school choice program

Phyllis Schlafly: Gov’t trampling on constitutional rights of parents

Calif. pushes to uphold ban on violent video games

High court rejects campaign finance appeal

Heritage Foundation: School choice on trial at the U.S. Supreme Court

High Court seen snubbing religious-expression cases

Arizona tax-credit case a test of church vs. state

White House praises Sotomayor after Tribe’s slap leaks

Can states keep kids from violent video games?

To choose or not to choose: That’s the U.S. Supreme Court’s question Wednesday

RLUIPA argument preview: Reach of Congress’s powers: SCOTUSblog

Coalition asks Senate to pass bill allowing cameras to broadcast Supreme Court arguments

    ACLU Press Release: “A coalition of public interest advocates led by the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington and the Alliance for Justice sent a letter to the Senate today urging action on a bill that would allow television coverage of open Supreme Court proceedings. In the letter, the groups argue that broadcasting Supreme Court arguments would lead Americans to have a greater understanding of the justice system and the government overall. The bill, S. 446, was introduced by Senator Arlen Specter (D-PA) early last year and was passed out of the Senate Judiciary Committee in June on a bipartisan vote of approval.”


  • Posted: 10/28/2010
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  • Category: Bench & Bar
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  • Source: www.aclu.org

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Laurence Tribe’s letter to Obama: Sotomayor “not nearly as smart as she thinks she is”

Daniel Henninger: The rage against Citizens United

    Daniel Henninger writing at The Wall Street Journal: “Presidencies and parties decline for lots of reasons, but looking back, one of the pivotal events in writing the history of the first Obama term is likely to be the tongue-lashing he gave several Supreme Court justices seated before him at his 2010 State of the Union message . . . Insofar as we now see in the current election that the biggest spenders roaring through the Citizens United floodgates are the public unions, the Obama-Pelosi tantrums seem overwrought, even phony. Freed to spend their own funds, AFSCME, the SEIU, and the National Education Association have spent $171.5 million, compared to political outlays of $140 million by the U.S. Chamber of Commerce, American Crossroads and Crossroads GOP.”


  • Posted: 10/28/2010
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  • Category: Religious Liberty
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  • Source: online.wsj.com

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Cert. petition filed on scope of the ministerial exception

Bloody video games may get same age curbs as porn in Supreme Court case

Liberty Counsel asks Supreme Court to hear case on Ten Commandments display

High court won’t block Maine election laws

ACSTO: Is it a sour lemon, or just sour grapes?

Supreme Court review sought in pastor’s defamation claim against church

Rep. DeFazio investigating impeachment of Chief Justice Roberts

Linda Greenhouse: Calling John Roberts