In The Washington Post, David Weigel reports that Sen. Ted Cruz said yesterday “that there was ‘precedent’ for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.” Additional coverage of Cruz’s remarks comes from Burgess Everett at Politico, who notes that they “could indicate a broader shift within the GOP to halt Democrats from shifting the court’s balance to the left.” Commentary comes from Howard Wasserman at PrawfsBlawg, who remarks that although comments like Cruz’s may be “all posturing, in light of recent polls,” they do “hint that a lame-duck confirmation of Merrick Garland is not in the offing.” At Constitution Daily, Scott Bomboy explores the possible effect of the threat of a Republican blockade on the Senate’s filibuster rules for Supreme Court nominations, observing that given “the recent tradition of close scrutiny of Supreme Court nominees, another ‘nuclear’ move to kill the Supreme Court nominee filibuster would be controversial.”
The petition of the day is:
Issues: (1) Whether Texas’ voter-ID law “results in” the abridgment of voting rights on account of race; and (2) whether judgment should be rendered for the petitioners on the claim that Texas’ voter-ID law was enacted with a racially discriminatory purpose.
When the Chicago Cubs return to Wrigley Field this weekend for their home games in the World Series against the Cleveland Indians, retired Justice John Paul Stevens will be in the stands.
“I’m in Florida now but I will be in Chicago to see the fourth game, Saturday,” Stevens, 96, a lifelong Cubs fan, said in an interview today. His busy schedule will only allow him to attend that game. “I’m looking forward to that very much. I hope it’s an enjoyable occasion.”
Stevens has long relished telling tales about his love of the Cubs, who last won a World Series in 1908 and were last in one in 1945. This reporter, himself a lifelong Cubs fan, asked the court whether the justice might be willing to chat about the team now that it has returned to the fall classic for the first time in 71 years. Soon enough, the justice’s chambers called and patched me through to Stevens.
In its conference of October 28, 2016, the court will consider petitions involving issues such as whether a state court can evade the pre-emptive force of the Federal Arbitration Act by framing its refusal to enforce an arbitration agreement as a product of supposed defects in “contract formation” that would not prevent the formation of any other contract; whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor,” and therefore establishes grounds for mandatory removal; and whether the court should retain the Auer v. Robbins doctrine of judicial deference to an agency’s interpretation of its own regulations.
- In The New Yorker, Jeffrey Toobin remarks that during Justice Clarence Thomas’ 25 years on the court, the justice has never been assigned to write a majority opinion in a controversial case, perhaps because “Thomas is not a conservative but, rather, a radical—one whose entire career on the Court has been devoted to undermining the rules of precedent in favor of his own idiosyncratic interpretation of the Constitution.”
- At the Associated Press, Bruce Schreiner reports that, at an appearance at the University of Louisville, Justice Elena Kagan “downplayed the role of gender when it comes to deciding cases,” but suggested that gender diversity on the Supreme Court “sends a positive message to young girls and boys, who hear ‘women’s voices coming from all over the place’ as the three female justices join in asking questions during oral arguments.”
The petition of the day is:
Issue: Whether a provision in an employment arbitration agreement that prohibits employees from seeking adjudication of any work-related claim on a class, collective, joint, or representative basis in any forum is invalid and unenforceable under Sections 2 and 3 of the Norris-LaGuardia Act, 29 U.S.C. §§ 102, 103, and Sections 7 and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1), because it “interfere[s]” with the employees’ statutory right “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”
On November 3 at 5:30 p.m., the Supreme Court Institute at Georgetown University Law Center and the Constitutional Accountability Center will host a panel discussion, “The Future of Access to the Courts.” Speakers will include Steven Bradbury, David Gans, Deepak Gupta, Ajmel Quereshi, and Jeffrey Wall; Amanda Frost will serve as moderator. Registration for this event, which will be held at the Supreme Court Institute Moot Courtroom, is available at this link.
Petrella II. Or is it? That’s a pretty good summary of the briefing in the big patent case from the November argument session, SCA Hygiene Products v. First Quality Baby Products. Three terms ago in Petrella v. Metro-Goldwyn-Mayer, a divided court held that the equitable defense of laches, or unreasonable delay in making a claim, could not be interposed to bar damage claims under the Copyright Act. Justice Ruth Bader Ginsburg’s strongly worded opinion in Petrella treated the issue as a straightforward conflict between vague judicial discretion and specific statutory rules, suggesting that when Congress decides to create a specific statute of limitations, courts have no business barring actions as untimely that are filed before the end of the congressionally specified period.
The first week of the November session brings the justices once again to the False Claims Act, with Tuesday’s argument in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby. In case you’re neither in the business of defending government contractors nor a regular reader of this blog, the False Claims Act is a 19th-century statute that permits private “relators” who learn of fraud in federal government contracts to file suit against the malfeasant contractor. The federal government receives notice of the suit and can take control of the litigation if it wishes. If the government takes control of the litigation, the relator receives 15-25% of any award; if the government declines to take control, the relator receives 25-30% of any award.
At the Associated Press, Mark Sherman reports on the intersection between the current vacancy on the Supreme Court and the upcoming election, noting that “the stakes are even higher when the president has a chance to put a like-minded justice on the court to take the place of an ideological opponent,” because such “a switch can change the outcome of some of the court’s most important cases.” In an op-ed in The Huffington Post, Marjorie Cohn observes that “Trump and Clinton’s choices for Supreme Court justices could not be more philosophically dissimilar” and highlights the conservative records of several of Trump’s prospective nominees. At Bloomberg, Patrick Gregory profiles Michigan Supreme Court Chief Justice Robert Young, who is on Trump’s list of candidates for nomination. At Reason.com, Damon Root looks at recent statements by Republican senators assessing the prospect of Senate hearings on the nomination of Chief Judge Merrick Garland; he argues that such hearings “would be a positive development because they might force conservative lawmakers to publicly air their differences” on “crucial legal questions.” And at MSNBC, Steve Benen reports that Sen. Chuck Grassley, the chairman of the Senate Judiciary Committee, cited the expense of hearings as a reason not to conduct them.