Wednesday round-up

By Adam Chandler
on Jan 5, 2011 at 9:34 am

In the midst of a quiet recess week at the Court, an interview with Justice Scalia published in California Lawyer has stoked some controversy. In the interview, Justice Scalia suggests that the Fourteenth Amendment’s equal protection guarantee does not prohibit discrimination on the bases of gender and sexual orientation. The Justice also told the magazine that when deciding “the most controversial stuff,” he “do[es]n’t even have to read the briefs” because an originalist approach answers those questions easily. The Huffington Post, the WSJ Law Blog, ACSblog, AOL News, the AtlanticWire, and Ms. Magazine have coverage of the interview.

Justice Scalia’s comments on gender discrimination have drawn particular attention. His assertion – which he has also made previously – that the Fourteenth Amendment does not extend to gender “le[ft] women’s rights activists seething,” according to the Washington Post’s Politics and Policy blog, while the editorial board of the New York Times deemed it “jarring” for “a sitting member of the nation’s highest court to be pressing such an antiquated view of women’s rights.” Other critics of Justice Scalia’s position include: Jack Balkin at Balkinization, Alexandra Petri at the Washington Post’s ComPost blog, Marisa Katz at the Washington Post’s PostPartisan blog, Joan Walsh at Salon and MSNBC, Alex Pareene at Salon, Darren Hutchinson and Dan Agin at the Huffington Post, Max Read at Gawker, and Anna North at Jezebel. In contrast, William Jacobson at Legal Insurrection lends some support to Justice Scalia’s position, reminding readers that “Scalia’s point is the fairly standard originalist view that the 14th Amendment . . . . does not protect men against discrimination on the basis of sex, either.”

Justice Scalia’s planned participation in Representative Michele Bachmann’s crash course on the Constitution for incoming members of Congress also continues to make news. (See this December round-up for earlier coverage of the arrangement.) The Los Angeles Times reports that Justice Scalia’s decision to participate “is drawing fire from some who worry the court is injecting itself into partisan politics” – a point echoed by Nan Aron in the Huffington Post, where she writes that a “fundamental principle of our democracy is undermined when Supreme Court justices serve as willing agents of a transparently political entity like the Tea Party movement . . . .”

And Justice Scalia isn’t the only Justice spending some time with the legislative branch at the start of the new Congress. Yesterday Chief Justice Roberts “presided over a closed-door ceremony in the offices of the soon-to-be House speaker, John A. Boehner of Ohio, to swear in his staff,” according to The Caucus blog of the New York Times. According to Court spokeswoman Kathy Arberg, in recent months the Chief Justice has also “helped swear in the architect of the Capitol, board members at the Legal Services Corporation and the new ambassador to Australia, Jeffrey Bleich.”

Briefly:

• CNN has a (video) report on the most significant cases and developments at the Supreme Court in 2010, including Citizens United, Justice Kagan’s nomination and confirmation, Snyder v. Phelps, and Wal-Mart v. Dukes.

• At the Volokh Conspiracy, David Bernstein reports that Justice Alito will be the University of Hawaii School of Law’s “Jurist-in-Residence” later this month.

• NPR’s The Two-Way blog reports that “[t]he White House will to[day] renominate more than a dozen candidates for judicial positions on federal courts,” on whose nominations the full Senate did not vote during the last Congress. Also, the Brookings Institution’s Russell Wheeler released a report yesterday detailing the 111th Senate’s track record with judicial nominations and predicting “what to look for in the 112th.” (Thanks to Howard Bashman of How Appealing for the link to the report.)