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

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

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Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

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Tuesday round-up

By on Aug 14, 2018 at 7:12 am

Court-watchers maintain their focus on records from Supreme Court nominee Brett Kavanaugh’s time working in the George W. Bush White House. For USA Today, Richard Wolf reports that documents from Kavanaugh’s two-year tenure in the White House counsel’s office reveal Kavanaugh’s “involvement in efforts by the Bush administration to get his nominees on to federal courts – efforts that Democrats successfully blocked in many cases during Bush’s first two years in office.” For The Washington Post, Stephanie McCrummen writes that the most recent batch of documents, released on Sunday, contains “no obvious bombshells about Kavanaugh.” Tony Mauro reports for The National Law Journal that the documents show “a heightened-alert atmosphere inside and outside the White House surrounding the speculation that Supreme Court vacancies would soon open up.” For The Hill, Jordain Carney reports that “[t]he National Archives is doubling down on its refusal to respond to Democratic requests for documents from” Kavanaugh’s three-year stint as White House staff secretary, informing Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, that “it is the agency’s policy to only respond to requests from a committee chair, all of whom are Republicans.”

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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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