Friday Round-up

By Anna Christensen
on Sep 25, 2009 at 9:13 am

Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly “developed light headedness and fatigue” while working in her chambers at the Court.  The New York Times and the Washington Post both characterized the Justice’s hospitalization at the Washington Hospital Center as “a precaution.”  Ginsburg has indicated that she plans to stay on the Court for several years to come, and has kept up an active schedule of work and speaking engagements.  The Court’s official statement  is available here.

David C. Fathi of Human Rights Watch has a piece in the Huffington Post detailing the ongoing ordeal of Georgia death row inmate Troy Anthony Davis.  Davis, who was sentenced to death for the murder of police officer Mark McPhail, narrowly avoided execution for the third time in September 2008 when the Supreme Court issued a last-minute emergency stay.  The justices have since ordered the lower court to consider new evidence,  but Fathi points out that even if this evidence exonerates Davis, he can still be executed under current Supreme Court precedent.  Since conviction reviews are “focused on procedure, not on outcome,” Fathi argues, evidence establishing Davis’s innocence “may not be enough to save him from the death chamber.” Sentencing Law and Policy is also covering the contentious debate over capital punishment, which has become increasingly heated in the past week following the failed execution of death row inmate Romell Broom in Ohio.  The blog recaps a Huffington Post piece by Ohio’s Secretary of State, Jennifer Brunner, in which Brunner criticizes what she calls “a system that perpetuates the pain from which sprang the punishment.”  And in Arkansas, several death row inmates have recently challenged the constitutionality of lethal injection; the Associated Press reports that the Eighth Circuit heard arguments in the inmates’ case yesterday.  Last year, the Supreme Court upheld the use of the lethal injection procedure.

The Obama administration has indicated that it will transfer 12 Uighur detainees from the detention center at Guantánamo Bay to the Pacific island nation of Palau, according to a Washington Post article.  The announcement follows a letter from Solicitor General Elena Kagan to the Supreme Court, which is currently considering whether to hear an appeal by the detainees.  In her letter, Kagan told the Court that “[t]he U.S. government has every reason to believe that at least six of the [Uighur detainees] shortly will be resettled in Palau, although it is impossible to be certain until they actually board the plane.”

The Ninth Circuit announced yesterday that it would delay consideration of a gun rights case, issuing an order in Nordyke et al. v. King et al. which put a decision on hold until the Supreme Court makes a determination in three similar cases: National Rifle Association v. Chicago, McDonald v. Chicago, and Maloney v. Rice.  SCOTUSblog’s own Lyle Denniston discusses the order here.

At Concurring Opinions, Gerard Magliocca opines on the health care debate, observing that, with regard to emerging constitutional generations, “there is often a clash between a rising movement and the Supreme Court over a key demand of that movement.”  In the current context, Magliocca opines, the health care debate will represent the “crucial issue” between the federal government and the Court.

David R. Dow discusses his new book, America’s Prophets: How Judicial Activism Makes America Great, at ACSblog.  In the book, Dow examines our fluctuating understanding of exactly what “judicial activism” entails, observing that the phrase is often used pejoratively but can also refer to “a method of analysis that seeks to identify broad and general principles as a basis for deciding individual cases.”  Delving into the many factors that influence individuals’ understanding of legal principles, Dow points out that decisions that to most seem cut-and-dried today – those concerning interracial marriage or women’s rights, for example – were at one time considered examples of judicial activism.

The Constitution Accountability Center has released a preview of the Court’s fall docket, highlighting three cases it believes will test the Roberts Court’s “willingness to overturn prior rulings.”  Profiling Citizens United, Free Enterprise Fund v. Public Company Accounting Oversight Board, and McDonald v. City of Chicago, CAC argues that each case “involves a central objective of the conservative legal movement,” and suggests that the positions taken by conservative Justices on these three cases may define this year’s term.  A panel of constitutional scholars, moderated by SCOTUSblog’s own Tom Goldstein, also addressed the potential impact of the upcoming term yesterday, gathering in Washington to discuss the significance of the cases on the Court’s calendar.  Among those discussed were Citizens United, United States v. Stevens, Salazar v. Buono, Black v. United States, and American Needle v. NFL.  The BLT has a recap of the conversation.

Former Justice David Souter has been keeping busy since he retired from the Court this summer, according to the Harvard Law Record.  During a recent interview at HLS, Souter told Professor Noah Feldman (who is also his former law clerk) that he is currently part of a New Hampshire task force to promote civic education, and that he plans to stay fully engaged in public life during his retirement. “I’ve got a Brandeisian element in me that says that the real life of the nation is lived in its cities and towns across the length and breadth of the republic, and I want to go back to mine and try to do something useful there,” Souter told Feldman.  During his visit, Souter also took the time to comment on the current trajectory of constitutional interpretation, pointing out that the reality of competing constitutional values might make it difficult for courts to follow precedent consistently.  Also taking some time for public appearances is Justice Clarence Thomas, who will speak at Washington & Lee University this evening as part of the conference “Lincoln for the Ages: Lessons for the 21st Century.”  The News Leader in Staunton, Virginia previews his visit.

CSPAN will air interviews with all sitting and retired justices as part of the its “Supreme Court Week.”   The BLT previews the network’s interview with Justice Sotomayor, who candidly discusses her initial reaction to President Obama’s decision to nominate her this past Spring.  When the President phoned her on Memorial Day to inform her of his decision, Sotomayor reportedly recalls, “I had my left hand over my chest to calm my beating heart, literally…I caught my breath and started to cry and said, ‘Thank you Mr. President.’ That was what the moment was like.”  CSPAN’s interviews with the justices will begin airing on October 4.  We’ve posted a transcript of the Sotomayor interview, as well as details on the CSPAN series, here.  Also as part of “Supreme Court Week,” CSPAN has a new poll investigating voter views of the Supreme Court, including the impact that the landmark ruling in Bush v. Gore had on public perception.  Only 29 percent of those polled responded that the ruling did affect their perception, while 88 percent stated that the Supreme Court affects their “everyday life as a citizen.” The BLT discusses the poll results in full.

Finally, the U.S. Postal Service has issued its new set of stamps commemorating four former Justices, and the honorees’ hometowns are brimming with pride.  In Kentucky, the Louisville Courier-Journal reports on the USPS’s decision to feature Louisville native Louis Brandeis, while in Massachusetts, the Salem News boasts that Joseph Story, who was also featured, was born and raised in the area.   Says one local historian of Story, “[h]e was a very important and little-known figure…I think mainly because of the time period in which he lived.”