First Amendment, This Day In Supreme Court History

This Day in Supreme Court History— January 6, 1964

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On this day in 1964, one of the Supreme Court’s most significant First Amendment cases, New York Times v. Sullivan, was argued.

The case began on March 29, 1960, when a group of civil rights activists ran a full-page fundraising advertisement in the New York Times. Martin Luther King Jr. was facing a trial in Alabama court on charges of tax evasion and perjury, and the advertisement solicited donations to help fund his legal defense. Titled “Heed Their Rising Voices,” the advertisement accused Alabama of prosecuting King in retribution for his civil rights activism. “Their strategy is to behead this affirmative movement and thus to demoralize Negro Americans and weaken their will to struggle,” it declared.

The advertisement also included descriptions of white southern officials repressing the student lunch counter sit-in movement that was then spreading across the South. Among the accusations was that, following a civil rights protest in Montgomery, “truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus” and then the students’ “dining hall was padlocked in an attempt to starve them into submission.”

Although never mentioned by name, Montgomery city commissioner L.B. Sullivan filed a libel suit against the New York Times and four black Alabama ministers whose names were among those listed as signatories to the advertisement. Sullivan argued the advertisement defamed his reputation and that various factual errors in the advertisement—the police never surrounded the campus or padlocked the dining hall, for example—prevented the defendants from claiming truth as their defense. Sullivan won a $500,000 judgment at trial, which the Alabama Supreme Court subsequently upheld.

At the Supreme Court, Montgomery attorney M. Roland Nachman Jr. represented Sullivan. Nachman highlighted the numerous vague referents in the advertisement, many of which, he insisted, could have been understood to be pointing toward Sullivan as responsible for oppressive acts that had not actually taken place. He also noted that the newspaper had neglected to follow its own advertising vetting standards. Furthermore, Nachman argued that no court had ever made a distinction between libel of a private person and libel of a public official—which was basically what the Times was demanding.

Columbia law professor Herbert Wechsler represented the New York Times. He insisted that nothing in the ad necessarily pointed to Sullivan as being responsible for the police department’s actions, that the instructions given to the jury were too vague, and that the First Amendment required the press be protected against suits such as this, which was intended to silence political criticism.
On March 9, 1964, the Supreme Court ruled, 9-0, in favor of the New York Times. In his opinion for the Court, Justice Brennan wrote that a public official may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This was the first time that the Court invoked the First Amendment to check libel actions.

“Another milestone in the long fight for freedom of the press and freedom of speech has been set up by a unanimous decision of the United States Supreme Court,” praised the Chicago Tribune editorial board, which was generally critical of the Warren Court’s doctrinal innovations. “The effect of the decision is to reaffirm the constitutional right of every citizen to criticize the government and officials of government.”

This Day In Supreme Court History

This Day In Supreme Court History—December 8, 1902

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On this day in 1902, Justice Oliver Wendell Holmes Jr. was sworn in as an Associate Justice of the U.S. Supreme Court.

The seat Holmes would occupy for the next thirty years opened up when Justice Horace Gray informed Roosevelt on July 9, 1902, that he was retiring. Roosevelt immediately wrote his close friend Henry Cabot Lodge, Senator from Massachusetts, to discuss nominating Holmes, who was then the Chief Justice on the Massachusetts Supreme Judicial Court. Holmes,  wrote Roosevelt,  “has been the most gallant soldier, a most able and upright public servant, and in public and private life alike a citizen whom we like to think of as typical of the American character at its best.” Roosevelt also hinted that he favored Holmes because he believed he shared the President’s views on American imperial policy in Puerto Rico and the Philippines. “Judge Holmes’ mental attitude …  is such that should naturally expect him to be in favor of those principles in which I so earnestly believe,” Roosevelt explained to Lodge. “Judge Gray has been one of the most valuable members of the Court. I should hold myself as having been guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”

In accepting Gray’s resignation, Roosevelt saluted Gray (who, like Holmes, was a native of Massachusetts and had served on that state’s  Supreme Judicial Court prior to his appointment to the U.S. Supreme Court) for his years of service and asked him postpone his retirement until a successor has been appointed. He concluded the letter with a flattering postscript: “The sentence I am about to write I suppose must not be made public because it might mistakenly be held to imply that I had anticipated a change in the Chief Justiceship! If through any accident to my good friend, the Chief Justice, there had been such a vacancy, it had been my intention to appoint you to it.” (Roosevelt’s flattery was misguided in this case: Gray’s resignation was brought on by grave illness; he would die just two months later.)

Roosevelt then wrote to the other U.S. Senator from Massachusetts, George Frisbie Hoar, who was the chairman of the Bar Committee of the Senate (what we now call the Senate Judiciary Committee). The President informed Hoar of his intention to appoint Holmes, but he explained that he would not make the appointment official until speaking with Hoar. The Senator felt slighted. “If the matter be decided, I do not understand what you expect or desire to hear from me,” he wrote. “As a Massachusetts lawyer, as the Senior Senator from the New England Circuit, and as Chairman of the Bar Committee of the Senate, I naturally feel great interest in the appointment of a Judge of the Supreme Court of the United States from my own Circuit and my own state. There is no doubt of the absolute right of The President to make such appointment on such advice as he chooses to take, or without advice, if he prefer.”

Roosevelt then sought to clarify his intentions. “I wrote to you, of course, so that if there was any reason why Holmes should not be appointed in our judgement, you would tell me.” Roosevelt explained that his appointment of Holmes was motivated by his goals of locating a nominee with the requisite professional prestige and ensuing there remains a justice from Massachusetts on the bench. “Equally, of course, my statement that I would make the appointment did not mean that I would make it if I was shown that such reason existed. I did not phrase my letter as carefully as if it was an ordinary appointment, simply because Homes being chief justice in the State, and having the reputation he has, I suppose it was a rather formal matter. But if there is the slightest reason against his appointment I of course wish to know it. Ever since Judge Gray’s sickness I have been looking over the field as carefully as I could in Massachusetts, as I wish to fill the place from that state, if possible.”

On August 11, Roosevelt wrote Hoar once again regarding Holmes’ appointment. He was moving ahead on the matter, he explained. “It would now be an idle formality for me to consult the public at large about Holmes – whatever it might have been well to do at the beginning – and so I shall announce his appointment.”

On that same day, President Theodore Roosevelt gave Holmes a recess appointment to the Court. Holmes, however, chose not to begin serving on the Court until the Senate confirmed his appointment, which it did on December 2.

Six days later, on December 8, 1902, Oliver Wendell Holmes Jr. was sworn in.

OT 2016, Patent Law, Voting Rights Act, Weekly Preview

The Week Ahead – December 5, 2016

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The Court will kick off this week by hearing oral arguments in Bethune-Hill v. Virginia Board of Elections on Monday. After the Virginia General Assembly redrew its legislative districts, the plaintiffs sued, alleging that race was a predominant factor in the redistricting. The Court will have to decide if Virginia’s political leaders unconstitutionally gerrymandered the districts to diminish the power of African American voters. The Washington Post discusses the history of the case, leading up to its arguments in front of the high court.

Additionally on Monday, the Court will hear a similar case, McCrory v. Harris. In McCrory, the Court will consider whether the district court was wrong in deciding that North Carolina did in fact redraw their legislative districts to decrease the power of African American voters and therefore violating the Equal Protection Clause. Check out PBS for further details.

On Tuesday, the Court will move away from issues involving politics and race and will hear arguments in Life Technologies Corp. v. Promega Corp. This case involves infringement and the meaning of a specific statute involving the manufacturing and supply of patented inventions used overseas. They will ultimately have to decide if making just one component of a multi-component invention from the U.S. for sale overseas makes the manufacture liable for infringement based on the worldwide sales of the invention. John Duffy of SCOTUSblog breaks down the arguments, here.

Finally, on Wednesday the Court will hear arguments in Czyzewski v. Jevic Holding Corp. The Court will have to decide whether bankruptcy courts can approve settlements providing for the distribution of assets in a manner inconsistent with the priorities set forth in the Bankruptcy Code. Jevic Transportation filed for bankruptcy and the settlement distributed assets to creditors that held lower priority than the truck drivers employed by Jevic. The drivers argue that this distribution violates the Bankruptcy Code. Daniel Bussel of SCOTUSblog discusses how Chapter 11 bankruptcy cases will be effected in the future based on various decisions the Court could make.

Weekly Roundup

Weekly Roundup, December 2, 2016

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On Monday the Court heard arguments in Beckles v. United States. The case presents several issues revolving around a sentence enhancement for what prior convictions for what the sentencing guidelines call “a crime of violence.”  The case involves both issues of interpretation of the phrase and a constitutional challenge that it is void for vagueness. During oral arguments, some of the justices noted that the guideline commentary partly interpreted the clause, presumably providing meaning. They also questioned whether the commission could not best clarify its own language. Janice Bergmann, representing Beckles, responded that the guideline language was drawn from the ACCA residual clause, so interpretation or examples offered by the commission would be arbitrary. Deputy Solicitor General Michael Dreeben argued for the government. Dreeben presented a due-process framework that is fair but considers “history and practice.” Discretionary sentencing, he explained, is built on “individualization or proportionality.” SCOTUSblog discusses Monday’s arguments in detail, here.

On Tuesday, the Court heard arguments in Moore v. Texas, which presents the issue of whether Texas’s method of determining whether an inmate is intellectually disabled, and therefore cannot be executed, violates the Constitution. Attorney Clifford Sloan, representing Bobby James Moore, argued that the determination of intellectual disability must consider the medical community’s diagnostic framework. The state’s standards date back to 1992. Arguing on behalf of the state, Texas Solicitor General Scott Keller said that the Texas framework was not “free-floating” but was consistent with the Supreme Court’s decisions in Hall v. Florida in 2014 and Atkins v. Virginia in 2002. The New Yorker dives into the life of James Moore in its interesting article titled “Will the Supreme Court stop Texas from executing the intellectually disabled?”

In the final case of the week, Jennings v. Rodriguez, the Court must determine whether immigrants must be guaranteed a bond hearing and possible release from custody. On Wednesday Ahilan Arulanantham of the American Civil Liberties Union of Southern California argued for detained immigrants. He defended a lower court injunction and argued that the Ninth Circuit’s requirement of a bond hearing every six months was appropriate. Ian Gershengorn, the Acting Solicitor General, argued for the government, and relied on Demore v. Kim, particularly with respect to detaining immigrants convicted of certain crimes. He argued that “[t]he Ninth Circuit’s decision is a serious misuse of the constitutional avoidance canon.” Kevin Johnson breaks down the arguments on either side of this debate via SCOTUSblog.

OT 2016, Weekly Preview

The Week Ahead – November 28, 2016

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This week, the Supreme Court will hear arguments in three cases. On Monday the Court will hear arguments in Beckles v. United States. Travis Beckles was convicted in 2007 of possession of a firearm by a convicted felon. The presentence investigation found Beckles to be an armed career criminal. He also was considered a “career offender” under one of the guidelines’ provisions because guideline commentary declared possession of a sawed-off shotgun to be a crime of violence under Section 4B1.2(a)(2) of the sentencing guidelines. Last year, in Johnson v. United States,  the Supreme Court struck down the “residual clause” of the ACCA. The residual clause had said that any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another” is included among the category of “violent felonies.” The court ruled that the clause was unconstitutionally vague because it did not give ordinary people sufficient notice of what conduct the statute prohibits. Seven justices (Justice Kagan is recused) will decide three issues: is Johnson retroactively applicable to the guideline residual clause of the Armed Career Criminals Act (ACCA); is Johnson’s constitutional holding applicable to Section 4B1.2(a)(2) of the sentencing guidelines; and is possession of sawed-off shotgun a “crime of violence” under the guidelines after Johnson? The Daily Caller discusses how the case gives the court the opportunity to revisit the Auer Doctrine. Scotusblog also discusses the case in more detail, here.

The Court will hear arguments on Tuesday in Moore v. Texas, which presents the issue of whether it is constitutional to prohibit the use of current medical standards on intellectual disability in determining whether someone may be executed. In 1980, Moore, then 20 years old, robbed a supermarket with two other men. Moore was convicted of the shooting death of one of the store’s employees and sentenced to death. More than 30 years later, Moore was again sentenced to death, but a state trial court determined that Moore is intellectually disabled and cannot be executed. On appeal, the Texas Court of Criminal Appeals, using standards from 1992 rather than current standards, reversed, holding that Moore had not established that he was intellectually disabled. The Court will decide whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability when deciding whether someone may be executed. As ISCOTUSnow reported last week, Tim Shriver, Chairman of the Special Olympics, weighs in on the case in this Time opinion piece. And The Economist argues that the state’s ideas on which it bases its executions are “used nowhere else in America.” SCOTUSblog also has more information.

Wednesday the court will hear arguments in Jennings v. Rodriguez. The case presents the issue of whether immigrants must be guaranteed a bond hearing and possible release from custody. Alejandro Rodriguez, a class representative, is a lawful permanent resident of the United States. The U.S. government sought to remove him from the U.S. based on criminal convictions for possession of a controlled substance and “joyriding.” The government detained him for more than three years without a bond hearing. An immigration court later granted Rodriguez “cancellation of removal,” and he remains in the country. The justices will also have to decide: whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. Law 360 offers a glimpse at the attorney who will be arguing the case, Ahilan Arulanantham, who has recently won a McArthur Award. And SCOTUSblog has more information about the case.

OT 2016, Weekly Roundup

Weekly Roundup – November 25, 2016

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

The Court convened for their November 22 conference on Tuesday but did not announce which, if any, petitions have been granted certiorari.

Lara Bazelon of Slate discusses Chief Justice John Roberts role in a Court with one or more Trump nominees, hinting that Roberts might be a safeguard against an ideologically fueled rescission of landmark cases like Roe v. Wade and Obergefell v. Hodges. “As chief justice, he has a unique responsibility to safeguard the integrity of the third branch of government,” she writes. “If the Supreme Court devolves into an ideological mouthpiece, as overtly political as Congress and the White House, Robert’s decade-long advocacy for judicial restraint and respect for precedent will be read as cant. Roberts himself will be seen as a hypocrite who put his personal preferences above the rule of law. History will view him as a failure. And John Roberts does not intend to fail. He is keenly aware of his institutional role and he cares deeply about legacy—the court’s and his own.”

Amy Frost of SCOTUSBlog investigates whether a single district judge has the ability to issue a nationwide injunction against the federal government programs or regulations. Frost analyzes UCLA Law Professor Samuel L. Bray’s paper  “Multiple Chancellors: Reforming the National Injunction”, published November 6, 2016. She describes Bray’s argument that while nationwide injunctions do provide some benefits, such as reducing inconsistency in the administration of federal orders across jurisdictions, the overall effect is largely detrimental. Nationwide injunctions, for example, encourage forum-shopping and make it less likely that the Supreme Court will have the benefit of percolation — consideration of an issue by multiple lower courts.

Amy Howe of SCOTUSBlog provides an in-depth preview of Moore v. Texas, which will be argued on November 29. The defendant in this case, Bobby James Moore, was sentenced to death thirty years ago, but argues that because of his intellectual disability, it would be unconstitutional to execute him. Moore examines whether or not it is a violation of the Eighth Amendment to reject evidence demonstrating that Moore is intellectually disabled under current medical standards and not the standard to determine intellectual disability used in this case – one that was developed in 1992. Tim Shriver, chairman of the Special Olympics, weighs in on the ramifications of the outdated standard in an op-ed for Time, writing “[i]n this case, fiction and stigma [trump] science and the Constitution. Never mind that the Texas factors for determining intellectual disability are not used in any medical or clinical setting in the nation. In fact, they’re not even used elsewhere in Texas. In countless situations where the state is responsible for determining intellectual disability, it uses current scientific standards. The inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be “good” at anything. The reasoning is dangerous and flawed: if you can mow a lawn, you can’t have an intellectual disability. If you have an intellectual disability, therefore, you can’t do anything. Both are wrong—dangerously wrong.”

OT 2016

The Trump Presidency and the Supreme Court

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What does a Trump Presidency hold in store for the Supreme Court? Answering this question requires considering two separate, albeit related, questions: (1) the impact of one or more Trump nominees on the Supreme Court, and (2) the possible legal challenges to policy Trump has endorsed that might end up in the Supreme Court. In this post, I’ll focus on the first question; in a subsequent post, I’ll look at the second.

One of the immediate implications of Trump’s victory is that President Obama nominee Merrick Garland’s hopes of getting on the Supreme Court are over. The seat left vacant by Justice Scalia’s death in February will remain open until the new President has an opportunity to make his own nomination. (Some have urged Obama to simply give Garland his seat based on the fact that the Senate’s refusal to hold hearings constitutes some sort of consent. But it is hard to imagine the current President seriously considering this constitutionally questionable path.) The Republican strategy of refusing to hold Senate hearings on the nominee until after the election worked. What looked a few weeks ago like a desperate stalling action that had run its course now looks like a high-stakes gamble that paid off.

Liberals are now urging Democrats to make a stand against whomever Trump nominates to the Court. Although some sort of stand will surely be made, it is hard to see how the Democrats can change the outcome. With a Republican-controlled Senate, Trump’s nominee will get a seat on the Court. Democrats will likely filibuster on Trump’s first Supreme Court nominee, which will just as likely result in the Republicans responding by revising its Senate rules and ending the filibuster for Supreme Court appointments.

The elimination of the filibuster will have effects on the Court for years to come. The predictable outcome of allowing the Supreme Court appointment process to operate with a simply majority requirement will be nominees whose ideological commitments place them somewhat further from the moderate middle—think more justices like Scalia and fewer like Roberts—at least when the same party controls both the White House and the Senate. Regardless of whether this is good or bad for the Court, it will allow Senators to extract more political advantage from the Supreme Court nomination process.

Who will a President Trump nominate to the Supreme Court? When it comes to Court nominees, Trump’s comments have been pretty standard Republican fare. During his campaign, Trump released a list of twenty-one people and said he would select his nominee from the list. The list, which Trump’s team compiled with the help of the Heritage Foundation and the Federalist Society, was filled with respected judicial conservatives, mostly judges on state supreme courts and federal courts. Trump has promised to appoint a justice who would overturn Roe v. Wade and protect gun rights. In a post-election interview, he reiterated his opposition to Roe and his commitment to appointing “very pro-Second Amendment” justices. For a candidate who defined himself by defying the Republican Party establishment, here he has seemed perfectly willing to fall in line.

If there is any space between Trump’s statements and Republican orthodoxy on Supreme Court appointments, it may be on the issue of gay rights. In the same interview in which he reiterated his opposition to Roe, he also said that he saw no reason to reverse the Supreme Court’s 2015 same-sex marriage decision, which he described as “settled” and “done,” adding that he was “fine with that.”

If Trump follows though on his campaign promise and puts a conservative on the Court who will carry on the legacy of Justice Scalia—and with a Republican-controlled Senate there is no reason to think he would not—then the new, post-Scalia Court will look very much like the old Scalia Court. The year or so of an eight-Justice Court will be a strange interlude, ahistorical footnote, its effects quickly erased. Those decisions in which Justice Kennedy sided with the liberals, such as affirmative action and abortion, will be safe for now. Those decisions that came down to a 4-4 split will likely be revisited in the near future. In this latter category, the 4-4 decision that will surely be revisited in the near future is the public sector labor unions case, Friedrichs v. California Teachers Association. The unions dodged a bullet when the Court split in the this case, thus allowing the Ninth Circuit decision, which went in favor of the unions, to stand.

The other major 4-4 split, United States v. Texas, will not be affected, since (a) it had the effect of keeping in place a lower-court ruling that was accepted by the Court’s conservatives (and would be approved by a new Trump justice, assumedly); and (b) it was a challenge to an Obama Administration immigration policy that Trump has pledged to reverse.

On the major hot-button issues, it is hard to see a single Trump nomination changing the direction of the Court. Even if the nominee wanted to go against Trump’s stated position and overturn the same-sex marriage decision, there would not be the votes to do so. There would still be only four justices to reverse course on affirmative action and abortion, both issues in which Justice Kennedy joined the liberals in major decisions last June.

But Trump may have an opportunity to appoint more than one justice to the Supreme Court. Some liberals had been urging Justice Ginsburg, who at 83 is the oldest member of the Court, to step down while Obama was still President, calls she pointedly rejected. Now the question is how much longer the she can continue to serve. The spectacle of the Ginsburg health watch will have an added element of reality-show drama, since it was Justice Ginsburg who made news over the summer by attacking Trump (who returned fire, of course) and then quickly backtracking and conceding that her comments were ill-advised.

And Justice Ginsburg is not the only member of the Court whose health will be of particular issue to Court watchers. If either of the next-oldest justices—Justice Breyer (78) and Justice Kennedy (80)—were to step down or be unable to continue to serve, the ideological configuration of the Court would be changed dramatically. If Justice Ginsburg or Breyer are replaced by a conservative justice, the Court will move to the right on many significant issues. If Justice Kennedy is replaced the rightward shift would be less pronounced but still potentially significant. On those issues on which Kennedy sided with the liberals (gay rights and, most recently, abortion rights and affirmative action) there will likely be some more conservative outcomes.

OT 2016, Weekly Preview

The Week Ahead – November 21, 2016

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This week, the Supreme Court will not hear any oral arguments but will be holding Conference on November 22. SCOTUSblog discusses some of the petitions likely under consideration.

One interesting petition the Court is expected to review is Broom v. Ohio. This capital case from the Supreme Court of Ohio addresses the case of respondent Romell Broom, who was sentenced to death upon his conviction for murder in 1984. Ohio attempted to execute Broom in 2009 by lethal injection but the procedure failed when Ohio failed to follow its established execution protocol. Broom argues three constitutional violations: that the original attempt at execution constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment, that a future execution attempt would constitute cruel and unusual punishment, and that a second execution attempt would violate Fifth 14th  Amendment protection against double jeopardy. This case was originally scheduled for Conference on October 28, and it has been relisted several times, suggesting that at least some Justices are very interested in taking the case.

A second interesting petition is White v. Pauly, a case from the 10th circuit, which examines the qualified immunity rights of New Mexico State Police officers. In 2011, the officers shot and killed Samuel Pauly in his own home while responding to a road-rage incident involving Pauly’s brother Daniel. The Court is being asked to examine whether the 10th Circuit correctly denied qualified immunity to the officers, and whether the 10th Circuit came reached its conclusion by considering the issue at too high a level of generality instead of focusing on the specific facts of the case. The petitioner police officers argue that the 10th Circuit considered the validity of the use of force from the perspective of the Pauly brothers and not from the perspective of reasonable police officers.

Finally, in Stokes v. South Carolina, the Court examines whether the petitioner’s Sixth Amendment guarantee of conflict-free representation was violated. Sammie Louis Stokes was convicted of kidnapping, sexual assault, and murder, and was sentenced to death in 1999. Stokes argues that his Sixth Amendment right to conflict-free representation was violated when Thomas Sims was appointed to represent him in 1999. Sims prosecuted Stokes in 1991 in an unrelated assault and battery case. The case was originally scheduled for the October 28 Conference and has been relisted several times.

To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.

OT 2016, Weekly Roundup

Weekly Roundup – November 18, 2016

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

Despite not adding any new cases or hearing argument this week, the Court played a prominent role in the news. In an interview on 60 Minutes that aired on Sunday, President-Elect Trump declared he believes gay marriage rights are “settled.”  He indicated, however, that he would appoint pro-life justices to the Court who would reverse Roe v. Wade. As Joan Biskupic of CNN reports this is the first time since 1969 that a newly elected president will be able to fill a Supreme Court vacancy. President Nixon came into office with a vacancy left due to Chief Justice Earl Warren’s retirement. Before Congress even confirmed Nixon’s nominee for Chief Justice, Warren Burger, Associate Justice Abe Fortas resigned. Although the Senate confirmed Burger, it blocked President Nixon’s first two nominees to replace Fortas before confirming Justice Harry Blackmun.

The Hill reports that Senator Dianne Feinstein will become the senior Democrat on the Senate Judiciary Committee next year. She will be the first women to be a ranking member of the committee, and will have a prominent role in vetting any Supreme Court Justice nomination after the President-Elect takes office. She has stated that she will pay “close attention,” to anyone Trump nominates, suggesting that she is willing to battle his or her confirmation.

Justice Sotomayor was also in the news this week. When asked about the outcome of the election, she stated that the country “can’t afford to despair.” She reiterated that the current even number of justices is not “ideal,” but that they have been doing the best that they can to avoid split decisions, and have affirmed by an equally divided court in only four cases since the death of Justice Scalia. However, as ABC News reports, she went on to say that the Court functions better with nine justices, as they are able to come to a definite conclusion on issues.

Also this week, Justice Ginsburg put down her gavel for a bit and made her opera debut with the Washington National Opera recently. She played “The Duchess” in “The Daughter of the Regiment” on opening night. As NBC reports, Justice Ginsburg and the late Justice Scalia both shared a passion for the opera. Justice Ginsburg “tweaked” the lines for the performance to make them reflect her “day job.”

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Chicago Tonight discussion on the Supreme Court under President Trump

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Professor and ISCOTUS codirector Carolyn Shapiro appeared on Chicago Tonight last evening, with other panelists, to discuss the future of the Supreme Court under President Trump. The panelists agreed that filling Justice Scalia’s seat is unlikely to lead to much change in the Court’s ideological balance.  But even with additional nominations, Shapiro  is “skeptical that we’d see outright reversal” of “hot-button” SCOTUS decisions like Roe v. Wade, explaining that “the Court, itself, has institutional reasons not to want to reverse a precedent that — even if controversial — is 40 plus years old, that has in a lot of ways stood the test of time even though it has been changed and cut back on.” Watch the full panel discussion at http://bit.ly/2eYbWh8.