Posts Tagged ‘Supreme Court’

Washington, D.C. March 2: Book forum on business and the Roberts Court

At 4 p.m. on March 2 — that’s Thursday of next week — I’m hosting a Cato book forum for Jonathan Adler to discuss his new book, Business and the Roberts Court (Oxford University Press, 2016). Commenting will be Andrew Pincus of Mayer Brown. Details and registration here:

Is the Supreme Court “pro-business?” That’s a claim often heard from critics of the Roberts Court, now circulating once more amid a likely battle over the confirmation of a successor to the late Justice Antonin Scalia. But what does the claim mean? Does it charge the Court with ruling wrongly in favor of business litigants, with shaping legal doctrine in unprincipled ways, or with something else? In Business and the Roberts Court, Professor Jonathan Adler assembles essays from scholars who consider how and whether Roberts Court decisions can or cannot be fairly deemed favorable to business. One pattern is that this Court follows doctrinal commitments — in areas from free speech to federalism to employment and securities law — that sometimes though not always coincide with the interests of producers and employers in the national economy. As the Senate considers President Trump’s nomination of Neil Gorsuch to the vacant seat on the Court, join us for a book forum on one of the most important elements of Chief Justice John Roberts’ rule — and Antonin Scalia’s legacy.

If you can’t make it in person, you can watch live online.

Neil Gorsuch nominated to Supreme Court

I am a big fan of the work of Tenth Circuit Judge Neil Gorsuch and was very happy that President Donald Trump picked him last night for the Supreme Court vacancy.

Writing in the Wall Street Journal, David Rifkin and Andrew Grossman first praise Gorsuch’s eloquent and humane style of opinion-writing, then get down to particular cases. Many are of interest to those interested in resisting excessive government power, especially when centralized in Washington:

…Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed….

Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.

What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.

The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.

Some more links:

  • More background on the judge: Denver Post, Ramesh Ponnuru/NRO, Ilya Shapiro;
  • He won Senate confirmation by voice vote in 2006 [hearings and related documents; floor debate]
  • 11/9 Coalition on his civil liberties/Bill of Rights stands, including Fourth Amendment rulings;
  • A key Gorsuch case on religious liberty: prison with sweat lodge for Native Americans broke the law by denying access to one inmate (Yellowbear v. Lampert). Extraordinarily clear and well written, the opinion also helps illustrate why Gorsuch, if confirmed, may fill Scalia’s place as the Court’s most talented writer.
  • Everyone remember to switch positions on whether the Supreme Court is perfectly functional with eight members!
  • Former Obama administration Acting Solicitor General Neal Katyal, in the New York Times (“Why Liberals Should Back Neil Gorsuch”);
  • The judge in a 2008 dissent: don’t make it too easy to sue litigation experts who change their minds [our first, second Overlawyered posts]
  • Just don’t tell anyone that he’s a Cato Institute author [Policy Analysis 1998, defense of term limits constitutionality]

SCOTUS will look at patent forum-shopping

The Supreme Court has granted certiorari in the case of T.C. Heartland v. Kraft Foods, which turns on a minor detail of statutory interpretation but raises high stakes indeed: if the Court agrees that a 2011 enactment narrowed venue in patent suits, it could end the current arrangement in which plaintiffs are free to steer most such suits into just a few friendly jurisdictions. My write-up at Cato concludes:

My own suspicion is that not in a thousand years would a thoughtful deliberative process have entrusted the future care of intellectual property in America’s tech sector to the bench and bar of Marshall, Texas, population 24,501. But that’s in no way a reflection on the quality of the able if wily legal talent to be found in East Texas. It’s a reflection on the quality of the lawmakers in the U.S. Congress.

Supreme Court roundup

Obama’s limp win rate at SCOTUS

The Obama administration won only 50.5 percent of its cases before the Supreme Court, an unusually low rate historically. The number can be seen as an outlier, or as “part of a trend that started after the Reagan administration, which won 75 percent of the time. Each succeeding president did worse than the last. President George Bush won 70 percent of his cases, President Bill Clinton 63 percent and President George W. Bush 60 percent.” [Adam Liptak, New York Times; earlier here, here, etc.]

Supreme Court roundup

Disparagement perfected: Cato brief in Lee v. Tam

Did Cato just file the most not-safe-for-work amicus brief in Supreme Court history? It’s on the question (Lee v. Tam) of whether the government can deny trademark protection to words and phrases that are slurs and, in so doing, gather to itself the task of defining what is a slur. The case, involving the Asian-American band The Slants, is widely seen as foreshadowing the eventual outcome of the challenge to the Washington Redskins’ trademark.

Joining Cato as amici: humorist and Cato fellow P.J. O’Rourke; Profs. Nadine Strossen, Clay Calvert, and Erik Nielson; the Reason Foundation; Frederick, Md.’s Flying Dog Brewery and famed artist Ralph Steadman, whose work adorns its labels; and the Comic Book Legal Defense Fund. It’s signed by Ilya Shapiro and Thomas Berry and written with Trevor Burrus’s assistance.

NSFW warning: as hinted, this brief uses obscene and disparaging words and phrases by the dozens and dozens, so be forewarned.

December 7 roundup

  • “Lawyer sues 20-year-old student who gave a bad Yelp review, loses badly” [Joe Mullin, ArsTechnica]
  • Gown makers’ associational liberty not to sell to Trump family should also protect florist Barronelle Stutzman [Stephanie Slade/Reason; Eugene Volokh on legal treatment of private discrimination based on political belief or association]
  • What to expect from Trump on legal policy: Harvard Law panel with Adrian Vermeule, Cass Sunstein, Andrew Crespo;
  • More on new Jonathan Adler book on business and the Roberts Court [Bainbridge]
  • Edelson class action firm, discussed here before, files vibrator data privacy suit [Chicago Tribune]
  • “Legal Theory Lexicon: Libertarian Theories of Law” [Lawrence Solum]

Supreme Court roundup

Rules vs. standards in Supreme Court jurisprudence

Better than law school: Frank Easterbrook, John Harrison, Akhil Amar, and Victoria Nourse on rules versus standards in jurisprudence, with particular attention to the work of Justice Antonin Scalia, who made the subject a particular theme of his. The video is from the Federalist Society National Lawyer’s Convention last weekend, which had a Scalia theme.