Friday round-up

By Anna Christensen
on Aug 20, 2010 at 9:33 am

Sitting by designation on the First Circuit, retired Justice David Souter wrote for a panel that recently upheld the constitutionality of revisions to a Massachusetts curriculum guide on the Armenian genocide, Constitutional Law Prof Blog reports.  The court concluded that “the revisions to the Guide after its submission to legislative officials, even if made in response to political pressure, did not implicate the First Amendment.”

Speaking at the Ninth Circuit Judicial Conference in Maui, Hawaii this week, Justice Anthony Kennedy indicated that most terrorism cases should be tried in civilian courts, the Associated Press reports.  Kennedy also answered questions about Elena Kagan’s confirmation, telling attendees that with her appointment, “it will be a different court.”

Briefly:

• At the Blog of Legal Times, Tony Mauro reports that the Court’s recent decision in Padilla v. Kentucky, which addressed the rights of a defendant facing deportation because of the misadvice of his attorney, is “already providing fodder for defendants who were caught unaware about collateral consequences beyond the immigration context.”  A panel discussion on the ruling is scheduled for August 25 at the Newseum in Washington, DC.
• In response to readers’ questions, Eugene Volokh explains at the Volokh Conspiracy why United States v. Arizona – in which the federal government challenges the constitutionality of Arizona’s new laws relating to illegal immigration – was not filed at the Supreme Court from the outset.
• At her Court Beat blog, Joan Biskupic draws on the story of Judge Vaughn Walker, the George H.W. Bush appointee who recently ruled that California’s ban on same-sex marriage was unconstitutional, as an example of the difficulty in predicting how judges – such as newly confirmed Justice Elena Kagan – will vote once on the bench.
• At Concurring Opinions, Glenn Cohen discusses the possible implications of last Term’s decision in Hertz Corp. v. Friend, wondering whether, following the ruling, any attorneys appealed their cases based on subject matter jurisdiction “[i]f they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test.”
• Finally, at Balkinization, Jason Mazzone explains how the October 2009 Term represented a “near-triumph” for the view of now-retired Justice Stevens that the Court should not grant review of criminal cases “in which the only alleged error is that the state court granted the defendant stronger protection than the Court’s own precedents require.”