- Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
- Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
- Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
- “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
- Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
- And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]
“A case awaiting acceptance by the Supreme Court challenges required fees paid by attorneys to State Bar of Wisconsin. Much of that money then goes to fund extensive lobbying. Trevor Burrus and Andrew Grossman comment.” [Cato Daily Podcast with Caleb Brown on Jarchow v. State Bar of Wisconsin, distributed for Supreme Court conference of May 15; earlier]
As police battle a Colorado criminal on the loose, the home of innocent bystanders is destroyed. City of Greenwood Village to owners: rough luck, we know, but we don’t owe you anything for that loss. Or might the Supreme Court want to view that as a taking for which fair compensation is owed under the Fifth Amendment? Ilya Shapiro, Trevor Burrus, and Michael Collins on the Cato Institute’s certiorari amicus brief in Lech v. Jackson; Ilya Somin (yes, the oft-confused Ilyas were both involved).
A Seattle law forces landlords to rent to whatever would-be tenant, however odious, is first in line. That’s a violation of fundamental rights and a compensable taking, argues the Cato Institute’s certiorari amicus brief in Yim v. City of Seattle [Ilya Shapiro, Trevor Burrus, and Sam Spiegelman; earlier here, here, and here]
Like a number of other states, Wisconsin by law requires lawyers to join and pay dues to its state bar, which takes stands on controversial issues. Two earlier SCOTUS cases upheld mandatory bar rules. Has the Janus decision changed that? [Deborah La Fetra, Ilya Shapiro, and Trevor Burrus on Cato certiorari brief in Jarchow v. State Bar of Wisconsin; Alison Frankel, Reuters; Eugene Volokh (in second case seeking certiorari, Fleck v. Wetch, Eighth Circuit rejected challenge to North Dakota dues; and note update that Supreme Court has denied certiorari in that North Dakota case); earlier here (Louisiana challenge), here, here (Texas)]
On Wednesday, at a rally on the Supreme Court steps, Senate Minority Leader Chuck Schumer (D-N.Y.) cut loose with a truly amazing diatribe against Justices Neil Gorsuch and Brett Kavanaugh, declaring that the two would “pay the price” and “won’t know what hit you if you go forward with these awful decisions.” Schumer’s menacing if vague comments drew prompt disapproval from a broad range of legal figures, such as the heads of the American Bar Association and New York City Bar Association as well as Democratic SCOTUS shortlister Neal Katyal and Harvard’s Larry Tribe. Chief Justice John Roberts weighed in with a rare public rebuke: “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”
Schumer proceeded to dig in and even blast Roberts personally for the criticism. By Thursday, he was ready to concede grudgingly that he “should not have used the words I used. They didn’t come out the way I intended to,” while still staying on the offensive in every other respect and accusing his adversaries of “manufacturing” the uproar.
I’ve got a new post at Ricochet reviewing the controversy, including its much-echoed “what about…?” dimension:
Defenders of Schumer assailed the chief justice for not having weighed on some other inappropriate Trump sallies, including his ill-grounded speculation recently (never filed as an actual motion) that Justices Ruth Ginsburg and Sonia Sotomayor should recuse themselves from Trump matters, and his aspersions on the judge in the Roger Stone case. Those are part of a frequent and blatant Trump habit of trash-talking judges, both as a candidate (calling the judge in the Trump University case “Mexican” and “a hater”) and as President (“so-called judge” among numerous others). Some — I’m one — would say that this is among Trump’s very worst and most damaging patterns of behavior.
But as cooler heads noted, including Ruth Marcus of the Washington Post, the chief justice is not a playground proctor who can step in to write up every demerit; he needs to save his efforts for the instances that are most dangerous, as he in fact has done.
The wider picture, it might be noted, is one in which nasty swipes at judges have been routinized for years, from a range of public figures and also from former President Barack Obama, both in his 2010 State of the Union speech and also repeatedly during the court review of ObamaCare. Still, none of these have gone as far to suggest personal threat as did Schumer — not even the extraordinarily inappropriate amicus brief filed by Sens. Sheldon Whitehouse and four other Senate Democrats last August, assailing the Court’s legitimacy and warning that “restructuring” at the hands of political branches lies ahead if it does not mend its ways.
I conclude that Schumer needs to go back and apologize, seriously this time. And it’s time for all who’ve fallen short of defending judicial independence — Republicans and Democrats alike — to do so. [cross-posted from Cato at Liberty]
- Court grants review of two cases, likely to be among the term’s more important for business, to clarify the limits of state court personal jurisdiction when none of defendants’ actions relevant to the dispute took place in the state [Jim Beck on Ford Motor Co. v. Bandemer (Minnesota) and Ford Motor Co. v. Montana Eighth Judicial District Court]
- From Peace Cross to Espinoza: where religious exercise and the Establishment Clause are headed in the Roberts Court [Federalist Society conference panel video and transcript with Stephanie Barclay, Luke Goodrich, Micah Schwartzman, and William P. Marshall, moderated by the Hon. Carlos Bea] “Conservatives want courts to consider the governments’ bigoted motives in enacting anti-Catholic Blaine amendments, but not when it comes to Trump’s travel ban. Liberals tend to be inconsistent in the opposite way.” [Ilya Somin]
- Federal law forbids attorneys and advocates to “encourage” an alien to reside unlawfully in the U.S. Spot the First Amendment problem with that [Ilya Shapiro and Michael Collins on Cato merits amicus brief in case of U.S. v. Sineneng-Smith]
- “The Supreme Court Should Continue To Defend Arbitration” [my new post with Ilya Shapiro and Dennis Garcia on Cato Institute certiorari brief in OTO, LLC v. Kho]
- What Martin Van Buren had to say in his memoirs concerning James Madison, Bushrod Washington, and Chancellor James Kent [Gerard Magliocca, Prawfsblawg]
- Is the Ninth the most overturned circuit? Checking the numbers [Adam Feldman, Empirical SCOTUS]
- Search and seizure: “How Long Does the Third Party Doctrine Have Left?” [Cato Daily Podcast with Billy Easley II and Caleb Brown, earlier]
At oral argument yesterday in Babb v. Wilkie, a case on the standard needed to prove age discrimination in federal employment, Chief Justice John Roberts offered a hypothetical of a younger manager who says “OK boomer” to a job applicant. [Mark Sherman, AP] In November, we and others discussed the legal pressure on employers to keep employees from using that phrase. More: William Baldwin, Forbes.
An opinion by the Fourth Circuit sees a big difference between legal representation of unions or complainants — idealistic, pro-rights, good in short — versus legal representation of businesses. Is that so? And should the role of the First Amendment apply equally across the two cases? I explore the case of Capital Associated Industries Inc. v. Stein, from North Carolina, in a new post at Cato at Liberty.
- Hosanna-Tabor sequel: Court agrees to review Ninth Circuit decisions taking narrow view of “ministerial exception,” which restricts court review of some decisions by religious employers [SCOTUSBlog, Eric Rassbach; Joseph Cosby on Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel]
- Once again the Court is being asked to green-light open-ended claims of disparate impact liability in mortgage lending. Proximate cause principles offer a way to hold the line [Ilya Shapiro, Trevor Burrus, and Sam Spiegelman on Cato amicus in Bank of America v. Miami]
- Article I, Section 3 of the Constitution provides that the Chief Justice shall preside over an impeachment trial of the President in the Senate. Should it wish, however, the Senate will have wide latitude to overrule Roberts’s rulings [John Kruzel, The Hill]
- Regulatory agencies whose officials are unremovable amount to an unaccountable fourth (or fifth?) branch of government [Ilya Shapiro and James Knight on Cato amicus brief in Seila Law v. CFPB]
- Comcast Corp. v. National Association of African American-Owned Media, argued before the Court Nov. 13, originally appeared to hinge on the Ninth Circuit’s adopting a looser standard for allegations of race discrimination in contracting than did other circuits; as it has evolved, however, it may be decided on questions of pleading [Washington Legal Foundation and more from WLF’s Richard Samp, ABA Journal; Dominic Patten and Mike Fleming Jr., Deadline on underlying dispute; Howard Wasserman and followup]
- Nearly two years after joining the Court, Justice Neil Gorsuch now has a track record [Jacob Sullum, Michael Greve] Gorsuch may be joining Thomas in the position that a federal agency’s considered decision *not* to regulate should not be interpreted to pre-empt state regulatory power [James Beck on concurrence in Lipschultz v. Charter Advanced Services (MN), LLC]