One of the central arguments made by In the Balance, Mark Tushnet's terrific new book about the current Supreme Court bench (reviewed here by Garrett Epps), concerns the counterweight to the conservative faction led by Chief Justice John Roberts. If Democratic nominees are able to wrest control of the Supreme Court back from the Republican nominees who have controlled the median vote on the Court for more than four decades, Tushnet argues, it is Elena Kagan who is likely to emerge as the intellectual leader of the Democratic nominees. And despite what many liberals feared, there is every reason to think that this would be an outcome supporters of progressive constitutional values would be very happy with.
While it is likely to attract little attention given today's epochal same-sex marriage arguments, the Supreme Court decided an important Fourth Amendment case on Tuesday. For the second time this year, the Supreme Court issued a ruling in a case involving drug-sniffing dog. This time, however, the Court did not allow the Fourth Amendment to be trumped by the War On (Some Classes of People Who Use Some) Drugs.
Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.
While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money.
Emily Bazelon has a terrific piece about a recent Supreme Court order that has received very little attention. The case concerned Shirley Ree Smith, a grandmother given 15 years to life for the death of her granddaughter. The conviction was based on "shaken baby syndrome," although the most current evidence suggests that it's extremely unlikely that Smith caused her granddaughter's death. Taking this evidence into account, the Ninth Circuit Court of Appeals freed Smith in 2006.
Though it was expected, it was good to hear Elena Kaganwas confirmed by the Senate this afternoon, 63 to 37. Five Republicans voted for her confirmation, and Sen. Ben Nelson, who apparently is vying to become the most obstructionist member of a majority party ever, voted against it.
Elena Kagan when she was dean of Harvard Law School, seated next to Sandra Day O'Connor, the first female justice of the Supreme Court, October 2008. Kagan completed her Senate testimony for her Supreme Court nomination this week.
The death of Dawn Johnsen's nomination to head the Office of Legal Counsel was more than the defeat of a single nominee. It was a blow to a liberal legal community that is already struggling to counter the conservative legal message. Johnsen's downfall wasn't being unqualified--she had run OLC in the past--her problem was that she was too strident in speaking out against the lawlessness of the previous administration.
TheNew Republic's strong endorsement of Elena Kagan is a rather odd piece of work. To borrow an analogy from Bill James, the general thrust of the argument is sort of like the Chicago Bulls scrub who combined his "contribution" with Michael Jordan's 54 points and noted that North Carolina alumni had combined for 55. Similarly, TNR's strategy is to link Kagan with the liberal icon Louis Brandeis, who once held the seat Kagan has been nominated for.
John Yoo, giving the ultimate non-endorsement, says Elena Kagan is no John Yoo:
Though Ms. Kagan’s thin record makes it difficult to draw many conclusions on her personal views, her academic work still provides hints into her thinking on this issue. In 2001, she published a 140-page article in The Harvard Law Review, “Presidential Administration,” written when she held no brief for the administration. Some have suggested that because her article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.
Are you a "mainstream" American? Probably not, according to TheWashington Post's Kathleen Parker. In a column today criticizing President Obama's pick of Elena Kagan for the Supreme Court, Parker writes that Kagan just isn't mainstream enough:
Elena Kagan's name was on nearly every shortlist that was published in the days following Justice John Paul Stevens' announcement that this term would be his last on the Supreme Court. In the weeks that followed, there was a fair amount of speculation about Kagan's sexual orientation. CBS blogger Ben Domenechwrote, almost in passing, that she would be the "first openly gay justice." But is she gay?