Did Hugo Black’s appointment to the Supreme Court in 1937 pass constitutional muster? The answer may hold a lesson for some who question the legitimacy of the present Supreme Court, I argue in my new Cato post. Despite hyperventilation over particular nominations, history shows the Court is resilient.
Posts Tagged ‘Supreme Court’
December 4 roundup
- Everyday orders share same griddle, but alternate cooking method is offered for vegans: “Lawsuit claims Burger King’s Impossible Whoppers are contaminated by meat” [Jonathan Stempel and Richa Naidu, Reuters]
- Court orders Canadian Senate to pay $1,500 to man who complained of language rights violation from English-only push labels on Parliament Hill drinking fountains [Jackie Dunham, CTV]
- Guns N’ Mootness: Supreme Court hears challenge to New York’s Kafkaesque have-gun-can’t-travel law, since repealed [Clark Neily, Daniel Horwitz, Josh Blackman, Newsy video with Ilya Shapiro, earlier and David Kopel/Randy Barnett in SCOTUSBlog symposium; Cato brief, oral argument transcript]
- Some deserved national attention for the killing of Gary Willis last year by Anne Arundel County, Md. police enforcing a “red flag” gun order [Jacob Sullum, earlier]
- Profile of Ken White is first time I recall seeing explanation of Popehat as blog name [Zane Hill, Outlook Newspapers]
- “When the opposition is paying [an expert’s fee in litigation], no incentive at all exists to charge anything but top dollar. That’s where the courts come in.” [Jim Beck]
SCOTUS declines to intervene in Sandy Hook gunmaker case for now
I joined the Lars Larson Show on Tuesday to talk about the Supreme Court’s ruling allowing a suit against Remington over the Sandy Hook massacre to proceed for now [earlier]. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).
I’ve got a new post up at Cato at Liberty taking a more extended look at the ruling and what lies ahead for gunmaker litigation.
Supreme Court roundup
A Cato-centric selection:
- Massachusetts bans the most popular variety of self-defense firearms and that violates the Second Amendment, as SCOTUS should make clear [Ilya Shapiro and James T. Knight II on Cato Institute amicus brief in Worman v. Healey] Congress has never passed a law criminalizing the accessories known as bump stocks and the Executive branch can’t change that on its own [Trevor Burrus and James Knight, Guedes v. BATF]
- Three more Cato certiorari amicus briefs: With return of Little Sisters case, Court should make clear that scope of accommodation under Religious Freedom Restoration Act is not for executive agencies to expand and contract accordion-like [Ilya Shapiro and Sam Spiegelman] Berkeley, Calif.’s ordinance requiring disclosure of the purported risks of cell phone radio frequency (RF) exposure poses First Amendment questions of forced commercial speech [Ilya Shapiro and Michael Collins on return to SCOTUS of CTIA v. Berkeley] Supreme Court has rejected attempt to use Alien Tort Statute to assert universal jurisdiction over human-rights abuses in overseas business, but Ninth Circuit still hasn’t gotten the message [Ilya Shapiro and Dennis Garcia, Nestle v. Doe]
- Summing up the last Court term: speech by Miguel Estrada and a short video with Ilya Shapiro for the Federalist Society;
- “Fearful that the Supreme Court will reject a broad interpretation of the CWA’s [Clean Water Act’s] scope, environmentalist groups have been seeking to settle the Maui case before the Court rules.” [Jonathan Adler on Maui v. Hawaii Wildlife Fund]
- Another case of surprise plain meaning? Advocates argue that Congress didn’t really end Indian reservation status for much of the state of Oklahoma even if everyone at the time thought it did [Will Baude on Sharp v. Murphy; earlier on surprise plain meaning]
- “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know” [new book by Randy Barnett and Josh Blackman; described here, and discussed in this Cato video]
Cato Supreme Court Review 2018-19
The full Cato Supreme Court Review for the 2018-19 term can be read here, with an introduction by Trevor Burrus. Among this year’s highlights: Michael McConnell on the Maryland Peace Cross case and government-sponsored religious symbols, Bruce Kobayashi and Joshua Wright on the Apple indirect-purchaser antitrust case, Braden Boucek on the Tennessee liquor Commerce Clause case, and Simon Lecturer George Will on “The Insufficiently Dangerous Branch.”
Or listen to a Cato audio with Trevor Burrus, Ilya Shapiro, and Caleb Brown:
Town won’t let owner build on her lot, says it owes $0.00 for taking
Janice Smyth’s family had paid property taxes for 40 years on a residential-zoned land parcel on Cape Cod, which has been left as the last plot in its neighborhood not residentially developed. But the town of Falmouth has adopted land-use regulations that have left only a 115-square-foot patch of it developable. Massachusetts courts: even if the plot’s valuation fell from $700,000 to $60,000, a decline of more than 90 percent, it’s not a taking since you could still use the land as a park or to walk dogs or for neighbors to buy as a buffer. The dispute might make a suitable vehicle for the Supreme Court to revisit the question of whether an outright confiscation of all uses is required before the Constitution’s requirement of just compensation kicks in [Trevor Burrus on Cato certiorari amicus brief in case of Smyth v. Conservation Commission of Falmouth et al.]
Cato Constitution Day video
The video of Cato’s 18th Constitution Day forum, held September 17, is now online, with a line-up of eminent speakers including Tom Goldstein of SCOTUSBlog, Jan Crawford of CBS News, and Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit, who in the annual B. Kenneth Simon Lecture discussed judicial independence and service during good behavior. I moderate the third panel, on Property Rights, Antitrust, and the Census.
Bloc voting and individual independence at the Supreme Court
From colleague Ilya Shapiro, writing in USA Today: “There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the ‘expected’ ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.”
Meanwhile, those who decry supposed bloc control of Court outcomes are missing a story staring them in the face, namely that not in many decades have a single president’s appointees diverged as sharply from each other as have President Trump’s, with Neil Gorsuch typically taking a more libertarian line and Brett Kavanaugh more centrist as well as more deferential to government power. According to SCOTUS scholar Adam Feldman, “Kavanaugh agreed equally often with Justices Stephen Breyer, Elena Kagan and Neil Gorsuch, at 70 percent apiece.”
Supreme Court roundup
- Nice little Supreme Court you got there, be a shame if anyone came around to mess it up, say Sens. Whitehouse, Blumenthal, Gillibrand, Hirono, and Durbin in incendiary “enemy-of-the-court” brief [Robert Barnes, Washington Post/Laredo Morning Times; David French, National Review; James Huffman, Inside Sources]
- Cato podcast triple-header, all with Caleb Brown: Trevor Burrus and Ilya Shapiro on Gundy v. U.S. and the limits of Congressional delegation, Ilya Shapiro and Clark Neily on the aftermath of double-jeopardy case Gamble v. U.S., and Trevor Burrus on the First Amendment case Manhattan Community Access Corporation v. Halleck (cable public access channel not a state actor);
- Criminal forfeiture, where used, should track lines of individual owner and asset responsibility, not the loose all-for-one joint-and-several-liability standards of some civil litigation [Trevor Burrus on Cato certiorari petition in Peithman v. U.S.]
- Federalist Society National Student Symposium panel on “The Original Understanding of the Privileges and Immunities Clause” with Randy Barnett, Rebecca Zietlow, Kurt Lash, Ilan Wurman, and moderated by Judge Amul Thapar;
- On the independence of administrative law judges, issues left over from Lucia v. U.S. are now coming back up in SEC proceedings [William Yeatman on Cato Fifth Circuit amicus brief in Cochran v. U.S.]
- Take-land-now, pay-later procedures may get pipelines built faster but at the expense of property owners’ rights. SCOTUS should act to assure just and timely compensation [Ilya Shapiro on Cato certiorari petition in Givens v. Mountain Valley Pipeline]
Liability roundup
- “TriMet faulted Laing for failing to heed warning signs … and earbuds playing loud music. Laing’s attorneys argued it couldn’t be determined what volume the music was playing at at the time of impact.” [Aimee Green, Oregonian; $15 million jury verdict for woman who dashed in front of train reduced to $682,800]
- “When Are Athletes Liable for Injuries They Cause?” [Eugene Volokh on Nixon v. Clay, Utah Supreme Court]
- Former Alabama Sen. Luther Strange has written a law review article on local government abuse of public nuisance law in industrywide litigation [Stephen McConnell, Drug and Device Law] “California’s disturbing lead paint ruling is going interstate. Magistrate cites it in opioid MDL to support tribal nuisance claims under Montana law” [Daniel D. Fisher on Blackfeet Tribe v. Amerisource] Federal judge should have said no to Rhode Island climate change/public nuisance suit [Michael Krauss, Forbes]
- “Will New York law change veterinary malpractice?” [Christopher J. Allen, Veterinary News]
- Supreme Court’s 5-4 ruling on class action counterclaim removal in Home Depot U.S.A. v. Jackson leaves Congress to fix what Judge Paul Niemeyer called a loophole in the Class Action Fairness Act [Diane Flannery, Trent Taylor & Drew Gann, McGuireWoods, Federalist Society teleforum with Ted Frank]
- In Missouri, logjam for liability reform breaks at last as Gov. Mike Parson signs four pieces of legislation into law [Daily Star Journal (Warrensburg, Mo.); Beck on forum-shopping measure]