Friday round-up
Yesterday the court released its argument calendar for the February sitting, which begins on Tuesday, February 21. Amy Howe reports on the schedule for this blog. Additional coverage comes from Lyle Denniston at his eponymous blog, who notes that the schedule once again “omits three cases that have been on hold since last January and, under normal timing, would have been heard weeks ago,” and that “appear to have been postponed repeatedly because the Justices have reason to think a decision in each may split the Court 4-to-4, settling nothing.”
At Bloomberg, Greg Stohr reports that Donald Trump is narrowing his list of potential Supreme Court nominees and “plans to move quickly, possibly even naming his nominee before he is sworn in on January 20.” In American Greatness, Mark Pulliam asserts that Trump’s future Supreme Court appointments are essential to his success as a “disrupter,” arguing that for “Trump to succeed in his mission to ‘drain the swamp,’ he has to bat 1.000 with his SCOTUS appointments—the equivalent of picking Scalia, Thomas, and Alito seriatim,” because only justices in that mold will “resurrect the long-neglected limits on federal government power that the United States Supreme Court abandoned during the 1930s, to enable the alphabet soup of New Deal agencies and legislation.”
Briefly:
- At Constitution Daily, Lyle Denniston reports that the “new Trump administration will be in office only 11 days when it must take its first position on a constitutional issue, arising in a major Supreme Court case on prolonged detention of immigrants in prison-like conditions,” noting that given Trump’s “controversial statements during the election campaign about how to treat immigrants, it is ironic that his legal team must take on this task in its first dealings with the Supreme Court.”
- At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro weighs in on Gordon v. Consumer Financial Protection Bureau, a pending cert petition involving an appointments clause challenge to a CFPB enforcement action, arguing that the CFPB director’s “later ratification of his own actions can’t cure the original unconstitutional sin of an unsanctioned prosecution,” and the “Supreme Court should take up Gordon v. CFPB to prevent this sort of dangerous accumulation of power from happening in the future.”
- In The New York Times Magazine, Emily Bazelon considers the late Justice Antonin Scalia’s approach to science, remarking on the apparent inconsistency between Scalia’s efforts to anchor constitutional law in what he considered to be objective analyses of text and history and his skepticism about “scientific consensus” on such topics as global warming, evolution, and human genetics, and concluding that by “seeking refuge in uncertainty, Scalia — paradoxical though it may sound — cast himself as a kind of apostate.”
- In The Economist, Steven Mazie sizes up the “one-man battle against the death penalty” being waged by Justice Stephen Breyer, observing that with “the window closing on Barack Obama’s nomination of Merrick Garland to take Antonin Scalia’s seat, the Supreme Court’s balance of power between death penalty sceptics and supporters is unlikely to change,” and concluding that chances “are nil that Justice Breyer will soon find four colleagues on the bench willing to reconsider the decision that revved up the machinery of capital punishment four decades ago.”
- At In a Crowded Theater, Erica Lee continues her series of posts exploring the issues in Lee v. Tam, a First Amendment challenge to the government’s refusal to trademark a disparaging name that will be argued on January 18.
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