Monday round-up

JAMES BICKFORD JUL 11, 2011 9:58 AM

At the Volokh Conspiracy, Jonathan Adler discusses recent comments by Justice Breyer regarding whether Justice Clarence Thomas should recuse himself from any Affordable Care Act case that reaches the Court in light of his wife’s advocacy against the law.  Adler draws an analogy between Justice Thomas’s situation and that of Justice Ginsburg, explaining that Justice Ginsburg’s late husband, Martin Ginsburg, “was one of the most prominent tax attorneys in Washington, D.C. His clients certainly had an interest in the outcome of big taxes cases before the Court, but no one suggested Justice Ginsburg was required to recuse from tax cases on this basis.”  Michael Kirkland of UPI looks at the competing efforts to convince Justices Thomas and Kagan to recuse themselves from an Affordable Care Act case.  The “[b]ottom line,” he concludes, is that we should not expect either Justice to recuse. 

And briefly:

• At Volokh, David Kopel discusses Messerschmidt v. Millender, in which the Court recently granted certiorari.  At issue in the case is whether two officers who conducted a search under a facially valid (but, according to the Ninth Circuit, objectively unconstitutional) warrant are entitled to qualified immunity.
• Kent Scheidegger of Crime and Consequences comments on Orin Kerr’s recent post on the Court’s Fourth Amendment cases from the past Term.  Scheidegger thinks it “worth noting… that only one of the three was a substantive Fourth Amendment issue.  The other two were about remedies.”
• At Salon, Eleanor Clift notes the twentieth anniversary of the nomination of Justice Thomas by President George H.W. Bush.  (Thanks to How Appealing for the link.)
• Albert Hunt of Bloomberg View considers the high-profile cases that may reach the Court before next year’s presidential election, concluding that “[w]hichever way the court rules on these issues will reverberate politically.”
• Bob Egelko of the San Francisco Chronicle suggests that the Court’s decision on qualified immunity in Ashcroft v. al-Kidd may help John Yoo, a Bush-era official in the Office of Legal Counsel, shield himself from suit by Jose Padilla, an American who was detained for four years in a Navy brig.
• The AARP has an interview with Justice Stevens, who suggests that he may have “jumped the gun a little” in retiring from the Court.

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