Monday round-up

EDITH ROBERTS OCT 24, 2016 7:35 AM

Last week the court released its calendar for the December sitting. As Amy Howe reports for this blog, three controversial cases that the court agreed to review last January, before the death of Justice Antonin Scalia, were notably absent. At the Associated Press, Mark Sherman observes that the calendar offers “new evidence that the short-handed court is having trouble getting its work done.” In The Washington Post, Juliet Eilperin and Robert Barnes report that the “bare-bones calendar” suggests the court may be “storing cases in hopes of having a full membership of nine by the end of the year.”

Filling the current vacancy – and future vacancies – on the Supreme Court bench remains a fertile subject for court-watchers. In Politico, Burgess Everett reports that Sen. Jeff Flake, who “has maintained for months that Republicans should take up Merrick Garland’s Supreme Court nomination if it looks like the presidential contest is a lost cause for the GOP,” has remarked in an interview that it is “looking about that time.” At Talk Media News, Justin Duckham reports that “Merrick Garland, the administration’s choice to take the vacant seat on the Supreme Court, is expected to remain the White House’s nominee in the lame duck session after November’s election,” according to Josh Earnest, the president’s press secretary. At the Washington Examiner, Susan Crabtree reports that “Earnest said President Obama would welcome Garland’s Senate confirmation during the lame-duck session.” At CNN, Joan Biskupic identifies some “key factors that ultimately could lead” Hillary Clinton “to name Garland to the high court” if she wins in November. And at The Hill, Jordain Carney reports that ”Sen. Rob Portman (R-Ohio) is signaling that he would consider a Supreme Court nominee from Hillary Clinton, after a GOP colleague pledged united opposition” last week. In a column for Bloomberg, Noah Feldman asserts that a “shift to a high-stakes, winner-take-all strategy of Supreme Court appointments would be madness for Republicans.”

Discussion of last week’s presidential debate continues. In an op-ed in the Los Angeles Times, Erwin Chemerinsky observes that although “Hillary Clinton and Donald Trump discussed the Supreme Court at the debate Wednesday, they didn’t convey how crucial filling its vacancies will be for our constitutional rights” in areas such as abortion rights, affirmative action, gun control, and separation of church and state. In an op-ed for Reuters, Alison Frankel also finds the candidates’ treatment of the constitution in the debate “woefully circumscribed.” Noah Feldman maintains in a column for Bloomberg that “in giving an answer intended to express moderation on gun rights” during the debate, “Hillary Clinton missed a chance to express support for the original meaning of the Constitution,” arguing that Clinton “should not have conceded that the Constitution properly interpreted requires an individual right to bear arms.”

This month marks the 25^th anniversary of Justice Clarence Thomas’s accession to the Supreme Court bench. In USA Today, Richard Wolf reports that Thomas “enters his second quarter-century on the Supreme Court … much like he began his first — in dissent,” suggesting that the death of Justice Antonin Scalia, coupled with the prospect of “ the court’s first liberal majority in nearly 50 years” pending the outcome of next month’s election, “could make Thomas — a happy legal warrior among friends and allies, yet to the public an enigmatic loner — less powerful but more influential for the remainder of his career.” At CNN, Ariane de Vogue observes that the “notion that Thomas might be seeking to fill the void left by Scalia underestimates the work that Thomas is doing in his own sphere” and predicts that “he will continue down a path of slow and steady commitment to his judicial approach no matter how the court changes in the next few years.” Another look at Thomas on his 25th anniversary as a justice comes from Mark Paoletta, who maintains in an opinion piece in The Washington Post that because Thomas is “a black man who challenges liberal orthodoxy, his legacy has often been minimized” and that history “will look kindly upon Justice Thomas’s judicial legacy and on him as an individual.” And in a video interview, Bill Kristol conducts a wide-ranging discussion with Thomas, in which the justice reflects on “the court, his jurisprudence, and his education.”

Briefly:

• At the National Conference of State Legislatures Blog, Lisa Soronen discusses Lee v. Tam, a First Amendment challenge by a rock band called The Slants to the federal government’s refusal to trademark the band’s name, observing: “State and local governments have a particular interest in how this case is decided because the government speech doctrine is at issue.”
• At Balkinization, Neil Siegel summarizes his recent contribution to a Yale Law Journal symposium on Justice Samuel Alito, concluding “that, especially in light of Justice Scalia’s passing, Justice Alito has become the primary judicial voice of the many millions of Americans who appear to be losing the culture wars, including in conflicts over gay rights, women’s access to reproductive healthcare, religious exemptions, and affirmative action.”
• At CNN, Ariane de Vogue outlines factors influencing the ways in which the “worst-case scenario” – in which a disputed election could wind up at the Supreme Court – might play out.
• At Buzzfeed, Chris Geidner notes that the court may soon decide whether to review the transgender rights case Gloucester County School Board v. G.G., and examines the EEOC case that led to the agency ruling allowing transgender people to sue for sex discrimination under federal law and that has made “a Supreme Court showdown, sooner or later, … almost inevitable.”
• At Jost on Justice, Ken Jost takes a look at “the brave new world of Supreme Court fandom,” noting that Ginsburg and Thomas, “one from each of the ideological blocs, now have web sites created by ardent fans to celebrate their lives, times, and jurisprudence,” and lamenting that “the idolizing puffery may make an already overly politicized court appear to be that much more partisan as partisanship rages unabated outside the Marble Palace.”

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