Supreme Court roundup

Very Cato-centric this time:

  • Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
  • New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
  • “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
  • Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
  • With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
  • On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
  • A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
  • “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]


  • Concerning Wisconsin’s persecution of the “press” (mass dissemination of political speech), aka the Red Dawn scandal–
    I thought Scott Walker and the Republican legislature won the last election. Why haven’t they repealed the authority of DAs to conduct “John Doe” investigations in political cases? The same repealer legislation could include text directing Federal Courts’ notice to the abuse of political prosecutions in Wisconsin and inviting them, for the future, to intervene at an early stage against any recurrence.

    • @Hugo: There’s a current proposed bill that would limit, but not eliminate, John Doe proceedings. Looks like it would limit the secrecy orders too, to mostly apply to only the prosecuting side.

      • @David–
        Thanks for the update. It looks like a thoughtful bill that would address the political abuses we have heard about.

  • I can’t say I particularly enjoy the “freedom” to be forced into an arbitration clause just to do business with a company. If it were up to me these “agreements” would actually have to be agreed on and could never be imposed as a condition of sale. But it’s not up to me, and the Arbitration Act does exist. Unless the courts want to actually find it unconstitutional they should abide by it.