Posts Tagged ‘Supreme Court’

Today’s not-that-big SCOTUS nomination story

The leadership of the U.S. Senate has announced that it will not be holding hearings or votes on a nominee for the Supreme Court vacancy opened by the death of Antonin Scalia, and it has the votes to make this stick. All of which makes it a little odd that some publications have been filling acres of news space with biographies of long-shot hopefuls destined not to be picked for a vacancy that is itself likely not to be filled, at least not anytime soon. (Of course, it does advance the White House’s political strategy to maximize press coverage in this way.) Jonathan Adler points out, as have others, that the Senate’s advise-and-consent role does not generate any constitutional duty to consider a nominee, however one weighs the prudential and political considerations for doing so. And Adler also points out that the Senate majority’s “No Hearings, No Votes” position makes it even more inappropriate than usual for some conservatives to start launching smear campaigns against possible liberal names, as by “tarring potential nominees because they once represented unsavory clients” — aside from the fact that (as both conservatives and defenders of the law should know) such smear campaigns are not good for the soul.

More/update: President Obama has now nominated D.C. Circuit chief judge Merrick Garland. Commentary by my colleague Ilya Shapiro (“Chief Judge Garland is assuredly a liberal vote on the most controversial, culture-war issues, but he’s just as surely the most moderate Democratic-leaning jurist under consideration on cases that fly under the radar.”); Stuart Taylor (“I predict that he will be confirmed — after the election, assuming Hillary wins, and after the lame-duck R’s have about 3 seconds to consider their options.”), Jonathan Adler (also: “His record on the D.C. Circuit is one of deference to the government across a wide range of issues,”), Trevor Burrus, and Jim Copland.

Filed under: judicial nominations, Supreme Court

Scalia’s change of mind on agency deference

Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]

Filed under: administrative law, Antonin Scalia, constitutional law, regulation and its reform, Supreme Court

An eight-Justice Supreme Court

It isn’t especially onerous for the Supreme Court to operate with eight Justices, as we know from earlier vacancies and recusals, note Josh Blackman and Ilya Shapiro [Wall Street Journal] History of election-year SCOTUS nominations and confirmations doesn’t prove what some liberals imagine it does [Roger Pilon; Jonathan Adler and follow-up]

Plus: Wouldn’t it be nice if every Supreme Court nominee were asked to name something he or she thinks is a good idea yet unconstitutional, or, conversely a bad idea that is constitutional? [Trevor Burrus]

Filed under: judicial nominations, Senate, Supreme Court

Will the Supreme Court now turn against employment arbitration?

In a case involving Murphy Oil, the National Labor Relations Board contends that “a mandatory arbitration provision violates the National Labor Relations Act. That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts.” The Fifth Circuit, unsurprisingly, joined other precedent and upheld the employer. Until just a short time ago, given a Supreme Court on which Justice Antonin Scalia had penned strong opinions in favor of freedom to contract in favor of arbitration as a choice, “employers would not have been terribly concerned if the NLRB had appealed.” But now? [Michael Fox, Jottings By an Employer’s Lawyer]

Filed under: arbitration, Supreme Court

The biggest cases, without Scalia

This year’s eight-member court may reach different outcomes than had formerly been expected in Friedrichs v. California Teachers Association, the public employee union dues case; the Obamacare religious exemption cases including Little Sisters of the Poor v. Burwell; and Fisher v. Texas, the affirmative action case, among others. Also diminished: the chance that the Court will overturn its doctrine of “Auer deference” to agencies’ interpretations of their own regulations, a doctrine laid out by Scalia himself which he later came to reconsider [Adam Gustafson, Washington Examiner] Plus the trio of class action cases, the challenge to the EPA’s coal-throttling Clean Power Plan, and much more [Daniel Fisher, Forbes] (& welcome Wall Street Journal Law Blog readers)

Filed under: administrative law, Supreme Court

Class action roundup

Justice Scalia’s death will make big difference in class action cases [Samantha Thompson, McGuireWoods via Andrew Trask]
Manhattan Institute publishes new report in its Trial Lawyers, Inc. series, this one focusing on class actions and mass torts [James Copland and colleagues]
Prof. Jason Johnston says House-passed class action reform would have modest effect [Chamber-backed Legal NewsLine] More on H.R. 1927, which also includes asbestos-litigation provisions and passed the House 211-188 with no Democratic votes [Mark Hofmann, Business Insurance; Republican Policy Committee]
“The Supreme Court’s next big class action controversy: ascertainability” [Alison Frankel, Reuters on Tyson Foods v. Bouaphakeo]
Texarkana forum-shopping: “Attorney files motion to dismiss class action settlement between USAA and Goodson law firm” [Benjamin Hardy, Arkansas Times, Adams v. USAA h/t Arkansas Business]
TCPA, law that launched a thousand telemarketing class actions, might stand for “Total Cash for Plaintiffs’ Attorneys” [Adonis Hoffman, The Hill]

Filed under: Antonin Scalia, Arkansas, class actions, Supreme Court, tort reform

Justice Scalia and the Court, cont’d

Justice Kagan: “The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names…. [T]hat is really not the case with Justice Scalia.” [David Lat, New York Daily News]
Nollan v. California Coastal Commission, his first landmark decision, was “turning point in the history of property rights” [Bill Fulton, Rice “Urban Edge]
Revive doctrine of enumerated powers? “Oh, Roger, we lost that battle a long time ago.” But then came Lopez… [Cato podcast with Roger Pilon, 3:50+]
Younger Scalia was quite positive about idea of an Article V constitutional convention, an idea he famously criticized later in life [Adam White, Weekly Standard; related here and here]
Jacob Sullum on Scalia and the Second Amendment (and more) and on the Drug War. More: Daniel Schwartz on the imprint he left on employment law even aside from Wal-Mart v. Dukes;
Blowup at Georgetown Law as profs Randy Barnett, Nicholas Quinn Rosenkranz flay colleague’s “startlingly callous and insulting” email to students on Justice’s death [Above the Law]
How Scalia changed originalism [Michael Ramsey in Liberty and Law symposium] In George Eliot’s phrase, his work on that issue was incalculably diffusive [Lawrence Solum]

Filed under: Antonin Scalia, Article V, Supreme Court

“Time to Rein in Judicial Deference to Executive Agencies”

The Seventh Circuit case we wrote about in October, on whether a federal agency is entitled to deference in how it interprets the legal scope of its own regulations, is now before the U.S. Supreme Court on a petition for certiorari review. Ilya Shapiro and Randal John Meyer explain why the Cato Institute has joined a brief urging the Court to take up the case of United Student Aid Funds v. Bible. [Cato at Liberty; more on so-called Auer deference]

Filed under: administrative law, Supreme Court

Remembering Justice Scalia: first reactions

In the early 1980s I had the honor to work for Antonin Scalia at the magazine Regulation, of which he was then editor. By the time Justice Scalia died yesterday at age 79, he had become the premier jurist of our time, the most influential legal writer, and, in my view, the most important American conservative since Ronald Reagan. Initial reactions, which include some very fine appreciations: Cass Sunstein, Mark Stern, John McGinnis, Ross Douthat, Jacob Sullum, Ilya Shapiro, and, at Cato’s blog, Roger Pilon, Trevor Burrus, Ilya Shapiro again, and Tim Lynch.

I’m at work on a couple of pieces remembering and appreciating his life and work. In the mean time, here are a few tidbits from this website’s coverage over the years:

His dissent in Maryland v. King, the “genetic panopticon” DNA-swab case (and related Newsweek);
American Express v. Italian Colors: vindicating freedom of contract in the form of freedom to agree to predispute arbitration. And his majority opinion in Wal-Mart v. Dukes;
On racial preferences and the case against the Court’s flawed Hunter/Seattle line of cases on when democratic processes are supposedly unfair to minorities;
On his opposition to cameras in the courtroom;
From his dissent in Brown v. Plata (court-ordered mass prisoner release): “It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation.”
From his Aereo dissent: “It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.”
The Obergefell marriage case, and a remarkable anecdote from Roger Pilon about how consistent Scalia could be in opposing what he viewed as invented constitutional rights (more on Scalia and parental rights).
On the Rule of Lenity and ambiguity in criminal law;
James Maxeiner on Scalia’s thoughts on statutory interpretation and views on law school. Relatedly, modern restatements are of questionable value, judges must use with caution;
ObamaCare becomes SCOTUSCare in King v. Burwell: the “Court keeps on hand a supply of what one observer called Get Out Of Bad Drafting Free cards.”

Filed under: Antonin Scalia, best of, Supreme Court

Supreme Court and constitutional law roundup

Constitutional right to teach children in a foreign language: the story of Meyer v. Nebraska, 1922 [Dave Kopel]
Court to address Indian law issues in three cases this term: right of counsel in tribal courts, conditions of removal from tribal to federal courts, tax authority on former tribal land [Daniel Fisher]
As constitutional conservatives go, Rand Paul and Ted Cruz are at odds on Lochner. Why that’s important [Roger Pilon]
2013 Kiobel v. Royal Dutch Shell decision hasn’t killed off Alien Tort cases, especially not in Ninth Circuit [Julian Ku/Opinio Juris on rejection of certiorari in Doe v. Nestle, background John Bellinger/Lawfare]
Textbook-resale case from 2013 term, Kirtsaeng v. John Wiley & Sons, is coming back for a ruling on fee award standards in copyright cases [ArsTechnica]
High court will review federal court’s jurisdiction to resuscitate denied class certification [Microsoft v. Baker, Ninth Circuit ruling; Fisher]
“Maryland Attorney General Brian Frosh: If You Don’t Want To Be Tracked, Turn Off Your Phone” [Motherboard/Vice on stingray surveillance]

Filed under: Alien Tort Claims Act, cellphones, constitutional law, Indian tribes, schools, Supreme Court, surveillance