In Magee v. Coca-Cola Refreshments USA, Inc., the Supreme Court is being asked to resolve what might be a relatively narrow question under the Americans with Disabilities Act: whether a soft drink vending machine (which happens to be web-enabled) counts as a “place of public accommodation.” Plaintiffs in the case argue that it is a “sales establishment,” but the Fifth Circuit found that term more appropriately to cover business establishments that a customer might enter. Lurking in the background, for possible guidance if not resolution by the Court, is the much bigger question of whether virtual-only elements of commerce, such as websites, are “establishments” of “public accommodation.” The high court has not resolved that question, which has allowed for the growth of the fantastically expensive and onerous theories of web accessibility under which lawyers are now rolling out a large volume of lawsuits, such as one challenging as inaccessible the order-taking website of the Five Guys hamburger chain. Perhaps aware of these major if not necessarily immediate implications, the Supreme Court has invited the U.S. Department of Justice to offer comments on whether it should grant certiorari in the case. [Daniel Fisher]
65 years ago this week President Harry Truman by executive order seized control of the U.S. steel industry, then facing a labor impasse. The Supreme Court didn’t let him get away with it, despite his lawyers’ claims that the emergency arising from the Korean War, then in progress, gave him inherent power to act in the national interest. The case of Youngstown Sheet & Tube v. Sawyer was to set an outer bound on Presidential power, which continues to be felt in cases to this day. I’ve got a write-up at Cato at Liberty.
New York Business Law § 518 “prohibits merchants from imposing a ‘surcharge’ on customers who use credit cards, but allows for a ‘cash discount.’ To put it simply: the law allows stores to advertise ‘discounts’ for paying cash, but makes it a crime to advertise an economically equivalent ‘surcharge’ for paying with plastic.” The Supreme Court ruled late last month that by penalizing a merchant for its description of a transaction rather than for a transaction itself, the law triggered First Amendment scrutiny. So that’s a victory, if in the circumstances a narrowly limited one, for the modern trend toward serious First Amendment scrutiny of restrictions on commercial speech [Ilya Shapiro and Frank Garrison on Expressions Hair Design v. Schneiderman]
- SEC’s use of in-house judges violates constitutional principle of independent judiciary [Thaya Brook Knight, Ilya Shapiro, Devin Watkins, and Ari Blask]
- Have you checked out the annual Cato Supreme Court Review on the 2015-16 term, available both in-print and free online? Among the contents: Roger Pilon on Scalia’s originalism; Andrew Trask on the class action case of Tyson Foods v. Bouaphakeo (and more); Steven Calabresi on originalism and liberty; Steven Eagle on wetlands law; Harvey Silverglate and Emma Quinn-Judge on McDonnell and honest-services-fraud prosecutions of state and local officials; and Glenn Reynolds looking ahead to this (2016-17) term;
- Federal agency can’t unilaterally rewrite unambiguous statutory provision [Ilya Shapiro and Frank Garrison on Cato certiorari amicus in FLSA tip-pooling case of National Restaurant Association v. Department of Labor]
- “You Shouldn’t Be Criminally Liable If You Don’t Have a Guilty Mind” [Ilya Shapiro on Cato certiorari brief in mens rea case of Farha v. U.S.; related on mens rea, Orrin Hatch, Time]
- Court must resolve constitutionality of CFPB structure, especially now that DoJ itself agrees it’s unconstitutional [Thaya Brook Knight and Ilya Shapiro, more]
- In ineffective-assistance-of-counsel case that might hinge on whether drug defendant was bound to be convicted anyway, Court should not sidestep the historically significant phenomenon of jury nullification [Cato podcast with Tim Lynch on Lee v. U.S.; more on case from Amy Howe at SCOTUSBlog on oral argument and from Lynch at The Hill]
On Monday the Supreme Court heard oral argument in the case of Murr v. Wisconsin, a case over whether Wisconsin should have to pay for a partial taking of land:
Joseph Murr and his siblings own two side-by-side lakeside lots, one with a recreational cabin and the other left vacant as an investment. Due to land-use restrictions, they allege that Wisconsin has “taken” the vacant lot, which would require the state to pay just compensation under the Fifth Amendment’s Takings Clause. Wisconsin courts rejected this claim by considering the economic use of the two lots combined. The Murr case thus asks how courts should define the “relevant parcel” of land when evaluating regulatory takings. Cato filed a brief in this case, arguing that current regulatory-takings jurisprudence is unclear and puts a thumb on the scale for the government. Another amicus brief, filed by Nevada and eight other states and co-authored by Ilya Somin, argues that the Wisconsin court’s rule “creates significant perverse incentives for both landowners and regulators.”
Last Friday Cato held a panel discussion on the case, introduced by Todd Gaziano of Pacific Legal Foundation, with Roger Pilon of Cato, Michael Pappas of the University of Maryland, and Ilya Somin, Scalia/George Mason Law School, with Cato’s Ilya Shapiro moderating. On Monday the Wall Street Journal published Roger Pilon’s opinion piece on the case. More: Ilya Somin, Rick Hills.
On March 2 I hosted a Cato book forum for Jonathan Adler to discuss his recent edited volume Business and the Roberts Court. Andrew Pincus commented. For more about this book — featuring contributors such as Joel Gora on Citizens United, Brian Fitzpatrick on the Twombly/Iqbal pleading cases, and Richard Lazarus on the emergence of a specialized Supreme Court bar — see Jonathan Adler’s interview with Ronald Collins at SCOTUSBlog, his posts at Volokh Conspiracy here and here, and this Stephen Bainbridge post.
Yesterday, in Bethune-Hill v. Virginia State Board of Elections, the Supreme Court ruled unanimously that a lower court had been too indulgent toward race-based drawing of district lines, a process subject to scrutiny under the Equal Protection Clause. Although the decision makes at most a small difference in the law, I write at Cato that the Court’s relatively unified stand serves as a testament to the far-sightedness of Justice Sandra Day O’Connor, who was roundly excoriated in the New York Times and elsewhere after warning in a landmark 1993 decision that “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions.” Two more views: Rick Hasen, Richard Pildes. (Also reprinted Newsweek; and see Kimberly Strawbridge Robinson, BNA Bloomberg coverage, thanks for quotes).
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.
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]
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.