Supreme Court roundup

  • Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler]
  • Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis [Keith Whittington]
  • High court declines certiorari in challenge to Wisconsin butter grading law [Ilya Shapiro and Matt Larosiere, Mark Arnold, Husch Blackwell with update, earlier here and here]
  • “The John Marshall Legacy: A Conversation with Richard Brookhiser” [Law and Liberty audio on new biography; Federalist Society panel with Brookhiser, Hon. Kyle Duncan, Hon. Kevin Newsom, and David Rifkin, moderated by Hon. William Pryor]
  • I’m quoted on Gundy v. U.S., the improper-delegation case: “While the Court majority did not agree this time, the line-up suggests breakthrough imminent” [Nicole Russell, Washington Examiner] From some quarters on the Left, rage at the Supreme Court that got away [Ilya Shapiro at P.J. O’Rourke online magazine American Consequences]
  • “Supreme Court Returns Constitutional Patent Case to Sender” [Gregory Dolin, Cato] on Return Mail v. U.S. Postal Service, earlier on dangers when federal agencies litigate before federal agency tribunals]


  • “High court declines certiorari in challenge to Wisconsin butter grading law”

    Of course it does . . . .

    There ought to be a process whereby SCOTUS orders a court of appeals to review something en banc.

  • “Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis”

    Okay, so no review by the full court.

    However, per the constitution, the Senate trial on impeachment is supposed to be presided over by the Chief Justice. Would the Chief justice in that role be in a position to make legal rulings about the adequacy (as a matter of constitutional law) of the bill of impeachment?

    With the House majority held by party A and the Senate majority and WH held by party B, what happens if the House issues a bill of impeachment and the Senate refuses to hold a trial?

    • Whittington covers the question of legal sufficiency in his article.


      • No, his article only covers review by the full SCOTUS court, even as to the legal sufficiency.

        He does not discuss in any way the issue of the Chief Justice making rulings from the bench while presiding over the Senate Trial.

    • If the Senate refuses to hold an Impeachment trial then the President remains in office. It happened just over 20 years ago.

      While the Chief Justice presiding over a Senate impeachment trial could opine on legal sufficiency and the like it would not matter except as to the trial flow, i.e. scheduling witnesses, allowing cross-examination, keeping order.
      He would not be able to direct a verdict based on the law nor direct the Senators to ignore certain testimony. There are no Jury instructions the Senate must follow. It’s “Can they get 67 votes to convict?”.

      • “It happened just over 20 years ago.”
        Do you mean Bill Clinton, who was impeached on two counts by the House in Dec 1998, then tried by the Senate in January 1999 which voted 45-55 on the perjury count and 50-50 on the obstruction of justice count?
        You must be referring to something else.

  • Matt B–
    The simplest remedy for the pro-Administration Senate would be to hold the trial and vote to acquit. Even if some Administration-party Senators were lukewarm, it is unlikely that the anti-Administration impeachers could muster a 2/3 supermajority.

  • Hugo,
    What should the Senate try him for?

    • @jimc5499:

      Just some guesses here.

      Several counts of vocal buffoonery with intent to offend the hypersensitive.

      Ongoing offenses of appearing in public with bad hair.

      Intentionally inducing derangement among political opponents and similarly marginalized groups.

      • Well played.

      • Try: obstruction of justice, repeated violations of the Administrative Procedures Act, violation of the Emoluments Clause, violation of civil rights under color of law, failure to perform his duty by appointing government officials. Also a variety of security breaches, which may not technically be illegal when the President is the author, but are nonetheless arguably grounds for impeachment and removal from office.