Tuesday Round-Up

By Jay Willis
on Oct 6, 2009 at 8:51 am

As the Court launches into its new session, major media outlets continue to roll out their previews of the term.  CNN’s includes speculation about the possible retirement of 89-year-old Justice Stevens and how another nomination might affect the Court’s balance going forward.  The Washington Post polled a variety of legal experts for their views on the upcoming term; as with other published previews, most of those polled focused on the effect that Justice Sotomayor may have on the Court’s proceedings.

Fallout from the cases in which the Court denied cert. dominates Supreme Court news this morning and was covered in yesterday’s special afternoon round-up.  Meanwhile, Adam Liptak at the New York Times posted his own list of notable cases that the Court declined to hear.

USA Today reports that Justice O’Connor is disappointed with what she views as the “dismantling” of her opinions in the wake of her 2006 retirement.  In a panel at William and Mary Law School, Justice O’Connor also repeatedly emphasized the value of diversity of all varieties, stating that having two women on the Court is an improvement but is still “not enough,” and pressed the importance of geographic, professional, and religious diversity in future nominees.

Plenty of details are available this morning on Justice Sotomayor’s active first day as the Court’s newest Associate Justice.  The Washington Post reports that Sotomayor “asked as many questions and made as many comments” as Chief Justice Roberts — which Michael Doyle of McClatchy points out is “more questions than Justice Clarence Thomas has asked over the course of several years.”  With the reshuffled seating arrangements, BLT notes that Justices Breyer and Thomas spent some time getting acquainted with their new vantage points. USA Today notes that Sotomayor’s vocal style displayed yesterday is in line with her reputation while on the U.S. Court of Appeals.  However, she did have a very brief novice moment when she neglected to turn on her microphone.

Rick DeJesus-Rueff at the Christian Science Monitor makes the case for empathy on the Supreme Court.  Instead of viewing empathy as a part of an ideological slant or as corrupting the unbiased interpretation of law, the author argues that it “can be a bulwark against identity politics” and that a finely tuned sense of empathy can allow judges to broaden their judicial perspectives.  DeJesus-Rueff cites a fascinating anecdote about Chief Justice Warren’s experiences immediately before the Brown v. Board decision to illustrate his point.

Bernard Harcourt at Balkinization expands on his L.A. Times op-ed and continues to argue for overturning the life-without-parole sentence in Sullivan.  Addressing the constitutional grounds for his argument, Harcourt points out that “no other state in this country and no other country in the world” allows life-without-parole sentences for thirteen-year-olds; on policy grounds, he argues that the sentence is a poor policy decision that allows no room for growth or rehabilitation and that society “must be able to come up with a better way to address the problems of a 13-year-old[]” than life without parole.

Finally, Dennis Henigan at HuffPo speculates about possible fallout from a decision against Chicago in McDonald.  He argues that even if the city loses in the wake of the Heller decision, the expansive language of Heller, which preempted a barrage of lawsuits by declaring existing gun-control laws “presumptively lawful,” is likely to prevent serious challenges to state and local firearms laws.  Henigan also notes that Heller also protects only the very narrow category of owning a handgun in one’s home for self-defense, and that McDonald cannot establish a “broader right” and instead will only determine whether this narrow doctrine should be incorporated to the states.