- “Rejected Applicant Sues Law Schools for Violating Magna Carta” [Kevin Underhill, Lowering the Bar]
- “Attorney sued for malpractice is suspended after releasing client’s psychiatric records” [Stephanie Francis Ward, ABA Journal]
- Moving state and local alcohol regulation past the bootlegger/Baptist era [Cato Daily Podcast with Jeremy Horpedahl]
- In Charlottesville today? I’ll be on a University of Virginia School of Law panel discussing redistricting / gerrymandering reform, campaign and election law, Maryland politics and more [Ele(Q)t Project]
- Rejecting ADA claim, Georgia Supreme Court says man cannot blame sleep apnea for “alleged inability to be truthful, accurate, and forthcoming” in bar application [Legal Profession Blog]
- Update: after national outcry, county D.A. in North Carolina drops charges of unlicensed veterinary practice against Good Samaritan who took in pets during Hurricane Florence [Wilson Times]
On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:
KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.
But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.
This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”
You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”
We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.
I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).
On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.
The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.
FOREWORD AND INTRODUCTION
ANNUAL KENNETH B. SIMON LECTURE
The Administrative Threat to Civil Liberties by Philip Hamburger
IMMIGRATION AND NATIONAL SECURITY
The Travel Bans by Josh Blackman
The Ghost Ship of Gerrymandering Law by Walter Olson
THE CRIMINAL LAW
Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight
Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan
THE FIRST AMENDMENT AND THE CULTURE WARS
Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg
NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman
FEDERALISM AND GOVERNMENT STRUCTURE
Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman
“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott
Looking Ahead: October Term 2018 by Erin E. Murphy
- Event barns booming as wedding venues, but some owners of traditional banquet halls want them to be subject to heavier regulation, as by requiring use of licensed bartenders [Stephanie Morse, Milwaukee Journal-Sentinel]
- Protectionism and smuggling in ancien regime France: “Before Drug Prohibition, There Was the War on Calico” [Virginia Postrel]
- Thread unpacks “Big Ag bad, family farms good” platitudes [Sarah Taber]
- “An Oklahoma judge has agreed to resign after he was accused of using his contempt powers to jail people for infractions such as leaving sunflower seeds in his courtroom and talking in court” [ABA Journal]
- Update: North Carolina gerrymandering plaintiffs back off, concede impracticality of using new maps in time for upcoming election [Robert Barnes, Washington Post, earlier]
- “Aretha Franklin Died Without a Will, Bequeathing Estate Issues To Her Heirs” [Caron/TaxProf]
- Astonishing investigation into feds’ “235 school shootings a year” statistic: “NPR reached out to every one of those schools repeatedly over the course of three months and found that more than two-thirds of these reported incidents never happened. …We were able to confirm just 11 reported incidents.” [Anya Kamenetz, Alexis Arnold, and Emily Cardinali, NPR]
- Sentences that make you go back and read twice: “Mister Cookie Face lawyer Blake Hannafan also applauds the verdict and says 600 lb Gorillas ‘overreached.’” [AP/WHEC, Metro West Daily News on legal battle between Massachusetts dessert company and ice cream supplier]
- “In-N-Out Burger sends pun-filled letter to beer maker to address ‘brewing’ trademark issue” [ABA Journal]
- In Arkansas, socially conservative Family Council Action Committee enlists in the ranks against liability reform, and some less-than-charitable souls wonder whether $150,000 in donations from a Little Rock law firm might have had anything to do with that [Andrew DeMillo, AP]
- AG Brian Frosh’s embarrassing SALT suit, religious adoption fight, Cardin’s red meat thrown to Left, union influence in Montgomery County, Baltimore water supply, and more Maryland stuff in my new Free State Notes roundup;
- Federal court strikes down North Carolina’s U.S. House map as partisan gerrymandering, which could (or might not) lead to lively doings at the Supreme Court between now and Election Day [my new post at Cato]
By February, clues were in plain sight that the Supreme Court was not inclined to hand down a “big” landmark decision this term on gerrymandering. That was confirmed yesterday when the Court got both cases off its plate without reaching the merits, instead disposing of them for now on issues of standing (Gill v. Whitford, Wisconsin) and timing (Benisek v. Lamone, Maryland). Strikingly, both decisions were unanimous as to result, a clue as to the carefully limited scope of what was decided, and both cases can continue in the courts below with their legal theories mostly intact. “The Court has kicked the issue of partisan gerrymandering down the road. States shouldn’t,” I write in a new Cato commentary on the decisions.
At Five Thirty-Eight, Galen Druke provides a helpful breakdown of the different ways the Supreme Court might resolve or fail to resolve the Wisconsin and Maryland partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone. Briefly, the Court could 1) find partisan gerrymandering unconstitutional, and accept the theory of either the Wisconsin or the Maryland case, which are quite different from each other; 2) find it unconstitutional and announce or at least gesture toward a standard other than those urged in the two cases; 3) duck the whole thing on grounds such as standing or mootness; 4) reject the Wisconsin and Maryland theories while leaving the door open (as in Vieth) for a future case to bring in the right theory; 5) reject the suits and all future claims of this sort as not justiciable, which would require Anthony Kennedy’s crossing to join the conservatives’ position in earlier cases; 6) kick the cases to next term, when they could be joined by a North Carolina case; or 7) splinter in some way that resolves the case without letting one of the above outcomes command five votes. A decision of some sort is expected by the end of the term June 25.
This week the Supreme Court heard oral argument (transcript) in Benisek v. Lamone, the challenge to Maryland’s gerrymandered Sixth District. I was there with some critics of the gerrymander in front of the Court steps and spoke to a number of reporters afterward [Danielle Gaines, Frederick News-Post; Bruce DePuyt, Maryland Matters] See also Eric Boehm, Reason. Earlier here. Background links on Maryland case: Cynthia Prairie, Maryland Reporter in January.
I’ll be testifying in Annapolis on behalf of comprehensive redistricting reform on Monday (Maryland House of Delegates) and Thursday (Senate) of this week. In the mean time, here are two new audio contributions, first (above) a Cato Daily Podcast in which I’m interviewed by Caleb Brown.
I’m also in the question period a bit more than two-thirds through this Federalist Society program featuring former Rep. Chris Shays (R-Ct.) and Weekly Standard senior writer Jay Cost.
On recent redistricting fireworks in Pennsylvania — which are being decided under that state’s constitution, and thus do not directly affect the federal constitutional issue or the situation in other states — see Nate Cohn, Matthew Bloch and Kevin Quealy, New York Times and Dave Wasserman, Cook Political Report. The Pennsylvania Supreme Court’s map scores high on a measure of partisan proportionality — that is, matching the number of seats won by a party to its share of overall vote. As Cohn et al. note, however, partisan proportionality in general “is not usually a goal when redistricting,” in part because it calls for conscious affirmative attention to partisan considerations as distinct from neutral principles. In this case it also comes as “something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map.”
Ballotpedia asked me to contribute to a mini-symposium on how the Supreme Court may deal with the partisan gerrymandering cases cases of Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland), and you can read the results here (see also my Cato write-up).
Separately, I’m scheduled to testify in Annapolis on state-level proposals for redistricting reform on Feb. 26 (House of Delegates) and March 1 (Senate). Come up and say hello afterward if you’re there.