- 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]
Crossing to join his four liberal colleagues, Justice Neil Gorsuch wrote the opinion in yesterday’s Davis v. U.S., finding unconstitutionally vague a federal sentence-enhancement provision prescribing “harsher penalties for those who use guns ‘in connection with certain other federal crimes.'” [Jack Rodgers, Courthouse News] His opinion begins:
In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
It was the third rights-of-the-accused case this term in which Gorsuch took the liberal side, and put him at odds once again with Justice Brett Kavanaugh. In his dissent yesterday, after crediting tougher federal laws with at least partial responsibility for the drop in crime since the 1980s, Kavanaugh noted that the sentence enhancement has been applied without seeming difficulty in thousands of cases of violent offenses since its enactment:
The Constitution’s separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers….
The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.
While both were appointed by President Trump, Gorsuch and Kavanaugh have been anything but in lockstep.
Yesterday’s biggest news from the Supreme Court was not its 7-2 upholding of the Bladensburg, Md. Peace Cross (American Legion et al. v. American Humanist Association et al.; earlier). That outcome could readily have been foreseen given the result in earlier cases: Justices Stephen Breyer and Elena Kagan, to say nothing of the five conservatives, are prepared to uphold “longstanding monuments, symbols, and practices” that may include religious content but do not impose any significant harms on those of other faiths or none. This World War I memorial qualifies.
Instead, the big news is the outcome in Gundy v. U.S. (earlier), a case over whether Congress can delegate to the Department of Justice the power to decide how severe the penalties will be in one application of the sex offender registration law. While the critique of excessive delegation did not carry the day this time (the vote was 4-3-1 with Justice Brett Kavanaugh not participating), Justice Samuel Alito indicated that he would be inclined to look at the issue in a future case, and Kavanaugh is thought (from his D.C. Circuit jurisprudence) to be similarly minded. If so, then a future case could establish the important principle that Congress must spell out penalties and prohibitions in law itself, rather than punt such issues to executive agencies, at least in criminal matters and perhaps also in some regulatory ones. That’s huge, since the Court has rejected improper-delegation theories since the New Deal.
Justice Neil Gorsuch’s dissent in Gundy, together with his scalding dissent (earlier) in the double jeopardy/dual sovereignty case Gamble v. U.S. on Monday, makes him the libertarian hero of the week.
- Gorsuch: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.” And yet he and Ginsburg were the only dissenters from the Supreme Court’s 7-2 decision Monday in Gamble v. U.S. to allow consecutive state and federal prosecutions over the same conduct, the so-called dual sovereignty exception to double jeopardy protection [Reuters, Ilya Shapiro, Cato brief (with ACLU and Constitutional Accountability Center) that had urged an end to the exception; and a conspiracy theory about Kavanaugh that wound up having absolutely no predictive value]
- “When Should Plaintiffs Be Able to Sue Anonymously?” [Eugene Volokh]
- 77-year-old antitrust consent decrees were designed for a music business that long since faded into history, DOJ’s decision to reconsider is welcome [Federalist Society podcast with Kristen Osenga and Mark Schultz, Osenga blog post]
- Clarence Darrow once boasted a cult following among American lawyers. His manipulative speech in the Leopold/Loeb case leaves you to wonder whether much will outlive the hype [Bryan Caplan]
- Federal aid-to-state programs have exploded in recent years, a good way to redistribute money and power into the hands of political elites with little taxpayer or voter accountability [Chris Edwards, Cato, new study and blog post]
- Dear Caterpillar: do you think there is much likelihood of consumer confusion about whether this coffee shop t-shirt is promoting earth-moving machinery? [Timothy Geigner, TechDirt]
Dissenting in the recent case of Nieves v. Bartlett, on the First Amendment handling of arrests motivated in part by retaliation for protected speech, Justice Neil Gorsuch wrote that criminal law in U.S. has expanded to a point where “almost anyone can be arrested for something.” And the implications? [Ilya Somin] Earlier on Nieves and the retaliatory-arrest case that preceded it last year, Lozman v. Riviera Beach, and more on the Nieves outcome from Tim Cushing at TechDirt.
- Will the liberal wing’s success at piecing together 5-4 majorities survive Justice Kennedy’s departure? [Kimberly Strawbridge Robinson, Bloomberg] Fundamental restructuring of Supreme Court becomes a popular campaign issue with Democrats, and the dangers in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see clearly now [Jonathan Adler and update]
- Federalist Society video on stare decisis with Roger Pilon, and related by Pilon on constitutional stare decisis;
- The high court decides relatively few admiralty/maritime cases but has heard more than one of them this term; one artist’s whimsical illustration [@CourtArtist on Twitter]
- In writing opinions, “the justices should be careful about naming politicians, especially when they name in order to make a point about the political process.” [Josh Blackman, The Atlantic]
- A constitutional right to religious exemptions from otherwise applicable laws? Eugene Volokh still backs Scalia’s logic on that, but it’s looking as if Court’s conservative wing may not. Cleanup in the Lemon aisle: Michael McConnell on Maryland Peace Cross case [Volokh Conspiracy]
- New resource: database of all Supreme Court nomination hearing transcripts that are yet available (with Kavanaugh’s still to come) [Shoshana Weissmann and Anthony Marcum, R Street]
A unanimous Supreme Court ruling in Timbs v. Indiana confirms that state governments, like their federal counterpart, may not impose excessive fines. The ruling also holds that “at least some state civil asset forfeitures” violate the Excessive Fines Clause. “As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor.” [Ilya Somin; ABA Journal]
Now keep your eye on the Privileges and Immunities Clause, advises Ilya Shapiro; Justice Gorsuch used a concurrence to signal that he is interested in revitalizing it, a position already held by Justice Clarence Thomas [Cato; see also Josh Blackman on Twitter]
- More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
- SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
- Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
- “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
- “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
- Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]
In the case of a federal law providing for the mandatory deportation of lawful permanent residents convicted of a hazily defined “crime of violence,” Justice Neil Gorsuch steps comfortably into Nino Scalia’s shoes as the Court’s champion of void-for-vagueness invalidation of criminal laws whose contours were left overly unclear. “It doesn’t make him a squish. It makes him an originalist,” [Ilya Shapiro, Washington Examiner; opinion in Sessions v. Dimaya] More: Jay Schweikert, Cato.
- A strong 9-4 showing: “Even in a ‘Slow’ Year, Cato Continues Its Winning Ways at the Supreme Court” [Ilya Shapiro]
- Court follows up Bethune-Hill v. Virginia State Board of Elections with another race-and-redistricting case, Cooper v. Harris [SCOTUSBlog symposium]
- “What Do We Mean By a “Pro-Business” Court — And Should We Care?” [James Copland, Case Western Law Review]
- Kennedy’s opinion for Court cites Cato amicus brief in Packingham v. North Carolina, ruling unconstitutionally overbroad law preventing nearly all social media access by released sex offenders [earlier]. Speech limits aren’t the only unconstitutional restrictions such offenders face. High court should take Karsjens case next [Ilya Shapiro and David McDonald]
- CALPERS v. ANZ Securities Inc.: pendency of class action does not suspend three-year time limit for filing individual securities actions [Kevin LaCroix/D & O Diary, Federalist Society podcast with Mark Chenoweth]
- Why I’m not joining the fury over Justice Gorsuch’s dissent in Pavan v. Smith, the case over Arkansas’s handling of birth certificates post-Obergefell [my Twitter sequence, more from Erica Goldberg]