Monday round-up

By James Bickford
on Apr 11, 2011 at 8:54 am

As Lyle Denniston reports for this blog, Judge Laurence H. Silberman of the D.C. Circuit issued a concurrence on Friday in which he criticized the Court for what he regards as its refusal “to assume direct responsibility for the consequences of Boumediene v. Bush” and clarify the evidentiary standard for the habeas corpus petitions of those imprisoned at Guantanamo Bay.  In the Washington Post, Robert Barnes reports on the aftermath of Boumediene and the Court’s recent denial of certiorari in several Guantanamo cases; meanwhile, the editorial board of the Post “share[s] Judge Silberman’s frustrations with the lack of guidance” from the Court but parts ways with the judge by arguing that a higher standard should apply “to justify indefinite detention.”  In a blog post at the Atlantic, Andrew Cohen comments on the concurrence and the Court’s Guantanamo jurisprudence, opining that “[w]hatever else it has done, the Supreme Court has miserably failed over the past seven years to give the D.C. Circuit, the trial courts, the Congress, the nation, and the rest of the world much us[]able instruction on how to ‘constitutionally’ handle the Gitmo detainees.”

John Thompson, the respondent in Connick v. Thompson, in which the Court recently overturned a $14 million judgment against a district attorney’s office for failing to train its prosecutors on the Brady requirements, describes his case and his experiences in a New York Times op-ed.  Thompson writes that “I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.”

Terry Eastland of the Weekly Standard praises the Court’s recent decision in Arizona Christian School Tuition Organization v. Winn, in which the Court held that taxpayers had no standing to raise a First Amendment challenge to tax expenditures, while the editorial board of the New York Times hails Justice Elena Kagan’s dissent in that case as “powerful[].”  Kenneth Jost of Jost on Justice also endorses the Kagan dissent, while  Jonathan Adler of the Volokh Conspiracy discusses a recent article describing documents that touch on the way in which the Solicitor General’s office handled challenges to the constitutionality of the health-care law under then-General Kagan.  Carrie Severino of the National Review Online also discusses these documents.

Mark Sherman of the Associated Press (via Miami Herald) reports that Justice Sandra Day O’Connor has been criticized for playing a role in public issues while sitting on appellate panels.  Tony Mauro of the BLT also notes this criticism.

Briefly:

• Michael Kiefer of the Arizona Republic reports on the Court’s recent stay of execution in two cases that, as Lyle has explained in his recent post, raise the question of “whether there is a constitutional right to a lawyer performing effectively in a new challenge started after a conviction has become final.”
• At Concurring Opinions, Gerard Magliocca raises a curious hypothetical: could four Justices effectively “filibuster” by refusing to participate in a case and so depriving the Court of a quorum?
• In the Union Leader of Manchester, NH, Fergus Cullen describes his recent visit to hear oral argument at the Court.