Jonathan Chait: “It may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven’t happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands. Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.”

“The modern pattern in American politics is that tactics that are legally available, but never used for reasons of custom, eventually become used. The modern pattern is also that the Republican Party, which is the most ideologically cohesive and disciplined party, leads the way.”

The Supreme Court “was subject to an unprecedented security breach when a spectator sneaked a video camera into Wednesday’s proceedings and filmed a protester who disrupted an oral argument,” the Wall Street Journal reports.

“The clandestine footage… is the first known video footage of a Supreme Court proceeding to be made public. It isn’t clear what type of device was used to make the recording.”

[Read more…]

Jeffrey Toobin: “As of this Saturday, February 22nd, eight years will have passed since Clarence Thomas last asked a question during a Supreme Court oral argument. His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.”

Rick Hasen: “Justices should be judged primarily by their opinions. This is the place in which the Justices’ views are translated into legal binding pronouncements, or into well thought-out arguments that the Court has headed off in the wrong direction. Judging Justice Thomas primarily by his opinions, there is no good argument that Justice Thomas is a ‘disgrace.’ Quite the opposite.”

Stuart Taylor: “It’s no secret that Kennedy’s uniquely eclectic mix of views enables him to tip the balance to the left in 5-4 decisions on politically drenched issues including gay rights, abortion, and the death penalty, and to the right on issues including states’ rights, campaign spending, and guns.”

“But how aware are most Americans that taken together, these facts mean that a 77-year-old man whose name is recognized by only 41 percent of the public–fewer than all but one of his eight colleagues–has more power by far than any president (or justice) in history to decree the law of the land on all of the issues mentioned above? Plus other issues, including racial affirmative-action preferences, free speech, school discipline, school integration, school prayer, the death penalty, and much more.”

“In an extended argument that contained large doses of history and practical politics, the Supreme Court on Monday seemed skeptical of the Obama administration’s contention that it had acted properly in bypassing the Senate to appoint several officials during a break in the Senate’s work,” the New York Times reports.

SCOTUSblog: “Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical.”

David Hawkings: “One of the biggest congressional stories of the decade starts unfolding Monday — not at the Capitol, but across the street.”

“The Supreme Court will hear arguments in an epic balance of powers battle between the other two branches, one that’s been waiting to happen since George Washington’s time. During the hour, the justices may or may not signal clearly whether they’re going to permit the continued expansive use of the president’s recess appointment authority — or seriously limit its use for the first time.”

Wonk Wire: Supreme Court could nullify existing recess appointments.

“This is a tragic, terrible mistake. We’ve got to lay the blame where it is… This was no compromise. What the president did was capitulate.”

— Rep. David Scott (D-GA), quoted by USA Today, protesting President Obama’s nominees to federal courts in Georgia.

“A divided U.S. Senate confirmed Washington lawyer Patricia Millett to serve on a powerful U.S. appeals court, the first Obama administration nominee to receive approval since Democrats last month made controversial changes to Senate rules,” the Wall Street Journal reports.

“The 56-38 vote showed partisan divisions remain deep after Democrats changed rules to eliminate filibusters on most nominations. The move came after Republicans blocked votes on Ms. Millett and two other nominees for the U.S. Court of Appeals for the District of Columbia Circuit, considered one of the nation’s most influential because it considers lawsuits challenging major federal rules and regulations.”

“The decision by Senate Democrats to eliminate filibusters for most judicial nominations only marginally enhanced President Obama’s power to reshape the judiciary, according to court watchers from across the political spectrum, because Republican senators can still veto his nominees to most currently vacant appeals court seats,” the New York Times reports.

“The new Senate rule clears the way for eight appeals court nominees who have already had confirmation hearings to win approval with simple majority votes, including three on the powerful Court of Appeals for the District of Columbia Circuit, which reviews federal policies and regulations. But it left unchanged the Senate’s ‘blue slip’ custom, which allows senators to block nominees to judgeships associated with their states.”

Senate Republicans “denied President Obama his third nominee in recent weeks to the nation’s most powerful and prestigious appeals court and insisted they would not back down, inflaming a bitter debate over a president’s right to shape the judiciary,” the New York Times reports.

“Unlike previous fights over judicial nominees, this one is not driven by ideology or divisive social issues like abortion. Republicans have raised few objections to any of the candidates’ qualifications or political leanings. Rather, Republicans are trying to prevent Mr. Obama from filling any slots on the court, fearing that he will alter its conservative tilt.”

“A steady stream of abortion cases are heading toward the Supreme Court,
making it only a matter of time before the justices are likely to
consider a new wave of state restrictions,” USA Today reports.

President Obama’s “latest choice to fill one of the vacancies on a powerful appeals court went down in a filibuster on Tuesday as Senate Republicans blocked another White House nominee — the third in two weeks — and deepened a growing conflict with Democrats over presidential appointments,” the New York Times reports.

Washington Post: “For all their intensity, there is nothing particularly new about these nominations fights. Both sides have been at war for years over the federal appellate courts in general, and the D.C. Circuit in particular. The battle has been going on so long that it is difficult to discern who fired the first shot and when.”

“The court is currently comprised of four active judges appointed by Republican presidents and four active judges appointed by Democrat presidents. There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.”

— Sen. Charles Grassley (R-IA), quoted by the Washington Post, defending a filibuster of any nominees to the court.

David Hawkings: “The first battle in the newest round of the judicial wars is intensifying today — and is on course to climax next week, when the Senate will decide whether to fill even one of the three vacancies on what’s considered the second most important federal bench in the nation, the District of Columbia Circuit Court of Appeals.”

“After back-to-back terms ending in historic rulings that riveted the nation, the Supreme Court might have been expected to return to its usual diet of routine cases that rarely engage the public,” the New York Times reports.

“Instead, the court’s new term, which starts Monday, will feature an extraordinary series of cases on consequential constitutional issues, including campaign contributions, abortion rights, affirmative action, public prayer and presidential power.”

Wall Street Journal: “The Supreme Court term offers the chance to refine–and potentially overrule–precedents affecting some of the most contentious issues and the court will hear arguments on a case challenging limits on campaign contributions.”

BuzzFeed: 11 Supreme Court cases that could change the U.S. in the coming year

On the eve of a new Supreme Court term, New York magazine has a fascinating interview with Justice Antonin Scalia.

A brief excerpt:

“One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie–or watch a television show for that matter–without hearing the constant use of the F-word–including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.”

“And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.”

“You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of big business.”

— Sen. Elizabeth Warren (D-MA), quoted by Politico, denouncing the Supreme Court as a right wing panel that serves the interests of corporate America.

Justice Ruth Bader Ginsburg told the New York Times she would stay on the Supreme Court as long as her health and intellect remained strong, saying she was fully engaged in her work as the leader of the liberal opposition on what she called “one of the most activist courts in history.”

“She said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.”