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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

Rick Hasen joins us to talk about his new book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.”

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Monday round-up

By on Aug 13, 2018 at 7:17 am

On Friday afternoon, Senate Judiciary Committee Chairman Chuck Grassley announced that the committee’s hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy will begin on September 4 and last three to four days. Coverage comes from Elana Schor at Politico, Richard Wolf for USA Today, Seung Min Kim for The Washington Post, Lisa Mascaro and Mark Sherman for the Associated Press, Todd Ruger at Roll Call, and Manu Raju at CNN. At Vox, Li Zhou reports that “Grassley’s announcement has already prompted outcry from Democrats who argue that he’s expedited the process and set up a hearing before lawmakers have had time to properly review Kavanaugh’s lengthy paper trail.”

For The Washington Times, Steven Dinan reports that “[s]enators on Sunday released tens of thousands of pages of documents from Supreme Court nominee Judge Brett M. Kavanaugh’s time in the Bush White House, sending researchers scurrying as Washington prepares for his confirmation fight.” Lisa Mascaro and Mark Sherman report for the Associated Press that “[n]ewly released documents from Supreme Court nominee Brett Kavanaugh’s time on the Kenneth Starr team investigating Bill Clinton, [made public on Friday in response to a Freedom of Information Act request] reveal his resistance to issuing an indictment of a sitting president.” Additional coverage comes from Michael Shear for The New York Times. In an op-ed for The Hill, Thomas Jipping maintains that Kavanaugh’s judicial record, not records relating to his work for Starr or in the White House, is “most relevant to this nomination.”

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SCOTUS Map: Summer 2018

By on Aug 10, 2018 at 11:29 am

The Supreme Court is in a liminal state this summer. With the departure of Justice Anthony Kennedy, and the confirmation fight over his successor stretching into a second month, the court finds itself suspended between the end of one era and the dawn of the next. It is little wonder, then, that the justices on the speaking circuit are fielding questions about changes both big and small. Audiences at judicial conferences, lectures and post-theater talkbacks want to know: What do the justices see on the horizon — for themselves and for the institution?

The justices deployed a variety of tactics in handling such queries, ranging from serene acceptance of the things they cannot change (everyone on the subject of Kennedy’s retirement), vigorous defense of the status quo (Chief Justice John Roberts and Justice Elena Kagan on cameras in the courtroom, Justice Ruth Bader Ginsburg on term limits), defiance (Ginsburg on her own retirement), and outright refusal to answer (Justice Stephen Breyer on the erosion of norms in the confirmation process).

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Friday round-up

By on Aug 10, 2018 at 7:02 am

Robert Barnes reports for The Washington Post that “[a] Senate committee released a sliver of the voluminous White House record of Supreme Court nominee Brett M. Kavanaugh on Thursday, amid a rancorous partisan debate over how the documents are being released to the public.” For The New York Times, Charlie Savage and Michael Shear report that an email included among the documents shows that “Kavanaugh volunteered to prepare a senior Bush administration official to testify about the government’s monitoring of conversations between certain terrorism suspects and their lawyers after the Sept. 11, 2001, attacks.” According to Eliana Johnson at Politico, the email “is likely to reignite a debate over [Kavanaugh’s] involvement in making the legal case for the Bush administration’s treatment of terrorist suspects — and whether he misled Congress about it.”

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Petitions of the week

By on Aug 9, 2018 at 1:42 pm

This week we highlight cert petitions pending before the Supreme Court that address retroactive “public nuisance” liability and the due process clause, the application of a state anti-SLAPP provision in federal court, and the powers granted to states by the 21st Amendment.

The petitions of the week are:

18-84

Issues: (1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.

18-86

Issues: (1) Whether, in conflict with decisions of the Supreme Court and the U.S. Court of Appeals for the 3rd Circuit, the First Amendment permits California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses; and (2) whether the due process clause allows a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence.

18-89

Issues: (1) Whether a state anti-SLAPP provision requiring an award of attorney’s fees and costs to a prevailing defendant applies in federal court as the U.S. Courts of Appeals for the 1st, 2nd, 5th and 9th Circuits have concluded, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits; and (2) whether a state anti-SLAPP provision requiring expedited disposition of dismissal motions applies in federal court as the U.S. Courts of Appeals for the 1st and 5th Circuits have held, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits.

18-96

Issue: Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entitles that have resided in-state for a specified time.

 
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Thursday round-up

By on Aug 9, 2018 at 7:34 am

Senate Democrats yesterday opened a new front in their effort to obtain records from Supreme Court nominee Brett Kavanaugh’s tenure as staff secretary to President George W. Bush. At The Hill, Jordain Carney reports that the Democratic members of the Judiciary Committee “filed Freedom of Information Act (FOIA) requests on Wednesday to try to force the Trump administration to hand over documents from Supreme Court nominee Brett Kavanaugh’s time working in the White House.” Additional coverage comes from Igor Bobic at Huffpost, who reports that “Democrats are particularly interested in whether [Kavanaugh] authored or edited any documents relating to the Bush administration’s controversial enhanced interrogation and warrantless wiretapping programs.” At The Hill, John Bowden reports that “Sen. Dianne Feinstein (Calif.), the top Democrat on the Senate Judiciary Committee, said Wednesday that she is ‘alarmed’ that Democrats have been denied requested documents from the National Archives on Supreme Court nominee Brett Kavanaugh.”

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The current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the current court is more pro-business than previous iterations. (That study was recently updated through the 2015 term.) This post uses data from the 2015 through 2017 terms to add to this discussion. In particular it seeks to locate the trajectory of the court with the possible addition of Judge Brett Kavanaugh for the October 2018 term. Although the court’s right and left sides found themselves on opposite ends of business rulings during the October 2017 term, we might expect an even stronger pro-business court next term with the addition of another likely predictably pro-business justice in Kavanaugh.

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Judge Brett Kavanaugh wrote two opinions in PHH Corp. v. Consumer Financial Protection Bureau: a panel opinion declaring an aspect of the bureau to be unconstitutional and an opinion dissenting from the en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision overruling his panel opinion. In both opinions, Kavanaugh expressed serious skepticism of the regulatory state while celebrating a view of the Constitution that vests in the president an extensive degree of unilateral authority over the executive branch’s enforcement of federal laws. Those views have been lauded by conservative commenters who celebrate Kavanaugh’s “[t]aming” of “the administrative state” — and by the White House, which has praised his record of “protect[ing] American businesses from illegal job-killing regulation.” Commenters on the left see in Kavanaugh’s PHH opinions a hostility to the CFPB’s mission more than to its structure, detecting an anti-consumer bias and general hostility to financial regulation.

In 2010, in response to the financial crisis of 2008, Congress enacted the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Among other things, the Dodd-Frank Act created a new administrative agency: the Consumer Financial Protection Bureau. Congress charged the CFPB with improving transparency and accountability in the market for consumer financial products, including enforcing a broad array of consumer-protection laws. Because the new agency was created to respond to a financial crisis and would operate in what Congress viewed as a fast-changing world of consumer finance, Congress designed it to become operational promptly and to act efficiently by providing for a single director to lead the CFPB, rather than a multi-member body. And, in order to give the agency some degree of independence and to promote stability and confidence in the country’s financial system, Congress provided that the director will serve a five-year term and can be removed by the president only for cause (i.e., for inefficiency, neglect of duty or malfeasance in office). Independent agencies are nothing new — the Federal Communications Commission, the Securities and Exchange Commission, the Federal Trade Commission, the National Labor Relations Board and the Federal Energy Regulatory Commission all operate independently in the sense that the heads of those agencies are removable only for cause. But each of those agencies is headed by a multi-member body, with the idea that the members of the leadership body will serve as a check on each other.

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Wednesday round-up

By on Aug 8, 2018 at 7:05 am

The nomination of Judge Brett Kavanaugh to the Supreme Court is keeping senators occupied even during their truncated August recess. At The Hill, Jordain Carney reports that “Sen. Dianne Feinstein (D-Calif.) is doubling down on her demand for the National Archives to hand over documents tied to … Kavanaugh’s tenure in the George W. Bush White House.” In an op-ed for The Wall Street Journal, Senate Judiciary Committee Chairman Chuck Grassley maintains that the documents from Kavanaugh’s tenure as White House staff secretary, requested by Senate Democrats, “are both the least relevant documents to the nomination and the most sensitive to the executive branch, two considerations that have guided previous review processes.”

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Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School.

As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.

Kavanaugh’s record in First Amendment cases demonstrates a precedent-based or “common law” methodology, one that also relies on the lessons of history regarding free speech, press and petition rights. In substance, his record suggests that Kavanaugh would not expand the speech rights of government employees and might interpret the government speech principle rather broadly. He has also concluded that noncitizens abroad do not enjoy First Amendment rights – an issue the Supreme Court has not directly decided. However, in many contexts, Kavanaugh would likely be a consistent supporter of First Amendment rights. He has emphasized the importance, to democratic self-governance and the search for truth, of robust free speech, press and petition rights. He has adopted an expansive interpretation of editorial and speaker autonomy rights, is generally skeptical of measures that compel speech and association, and views government power to regulate private speech as sharply circumscribed. Looking forward, Kavanaugh’s appointment could have a significant impact in regulatory areas such as telecommunications and data privacy. Notably in this regard, his opinions suggest strong support for the speech rights of corporations, including digital-content providers.

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