Editor's Note :

close editor's note Editor's Note :

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

Friday round-up

By on Sep 21, 2018 at 7:00 am

At The Washington Post, Seung Min Kim and others report that “[a]n attorney for Christine Blasey Ford, the woman who has accused Supreme Court nominee Brett M. Kavanaugh of sexually assaulting her when they were teenagers, said Thursday that her appearing at a hearing on Monday to detail her claims is ‘not possible’ but that she could testify later in the week.” Sheryl Gay Stolberg reports for The New York Times that Ford “appeared to leave the door open to testifying even if the F.B.I. does not investigate her accusations, as she had previously requested.” At Politico, Burgess Everett and Elana Schor report that “Ford’s attorneys held a high-stakes call with Republicans and Democrats on the Senate Judiciary Committee Thursday night that ended with no decision on when or if Ford will testify.” Kristina Peterson and others report for The Wall Street Journal that “[i]f the two sides can’t strike a deal on the conditions, it is unclear if Republicans would still hold a hearing with Judge Kavanaugh as the sole witness.”

Continue reading »

Posted in Round-up

Thursday round-up

By on Sep 20, 2018 at 6:54 am

For The Washington Post, Seung Min Kim and others report that “Senate Republicans strongly signaled on Wednesday that they will forge ahead with embattled Supreme Court nominee Brett M. Kavanaugh’s confirmation as his accuser called the rush for a public hearing next week unfair.” For The New York Times, Peter Baker and Nicholas Fandos report that the resistance of Christine Blasey Ford, who has accused Kavanaugh of sexual assault when they were teenagers, “to appearing before the Senate Judiciary Committee on Monday seemed to galvanize Republicans and drew wavering Republican senators back into Judge Kavanaugh’s camp.” Natalie Andrews and others report for The Wall Street Journal that “White House Spokesman Raj Shah said the president won’t look at naming any replacement nominee unless there is a clear need” and that the administration is “going ‘full steam ahead’ to support Judge Kavanaugh, who has denied the assault accusations.”

Continue reading »

Posted in Round-up

Petitions of the week

By on Sep 19, 2018 at 10:10 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the constitutionality of New York City’s ban on the transportation of handguns outside of the city; the availability of punitive damages to a Jones Act seaman in a certain personal-injury action; the applicability of the particularity requirement to the probable-cause findings in a warrant; and the classification of a prior salary as a permissible differential when paying men and women different wages for the same work under the Equal Pay Act.

The petitions of the week are:


Issue: Whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.


Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.


Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel.


Issues: (1) Whether severance is the default remedy when part of a warrant is valid, or whether the Fourth Amendment requires that the valid sections make up “the greater part of the warrant”; (2) whether the particularity clause—which requires a warrant to describe “the place to be search[ed]” and “the things to be seized” with sufficient particularity— also requires a warrant to state its probable-cause findings with particularity; and (3) whether the exclusionary rule applies when the issuing judge signs off on the officer’s legal mistake in filling out a warrant form.

On September 25 at 5:30 p.m. MDT, the Chicago Lawyer Chapter and the University of Denver Sturm College of Law Student Chapter of the American Constitution Society will host a discussion on the Supreme Court featuring Dahlia Lithwick. More information about this event, which will be held at Holland & Hart on 17th Street in Denver, is available at this link.

And on September 27 at 12:00 p.m. EDT, the ACS North Carolina Lawyer Chapter will host a preview of the October 2018 term. Speakers include Christopher Browning, Danielle C. Gray, Ryan Park and Monica Webb-Shackleford. More information about this event, which will be held at Womble Bond Dickinson on Fayetteville Street in Raleigh, is available at this link.


Wednesday round-up

By on Sep 19, 2018 at 8:56 am

For The Wall Street Journal, Kristina Peterson and others report that “[a]ttorneys for [Christine Blasey Ford,] the woman who accused Brett Kavanaugh of sexual assault[,] said she wants a full investigation of the allegations before she testifies on Capitol Hill, throwing into doubt a planned Monday hearing that would have pitted her word against that of the Supreme Court nominee.” For The Washington Post, Seung Min Kim and others report that “Democrats, like Ford, argued that the scheduled Monday session should be delayed until the FBI further investigates her allegation.” Peter Baker and others report for The New York Times that “Republicans signaled Tuesday night that they would not negotiate an alternative date and would go ahead with the hearing without her or declare it unnecessary if she refuses to appear, then possibly move to a vote.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “Kavanaugh’s former women law clerks who were willing to discuss the fast-moving controversy surrounding his Supreme Court nomination still support him.” Commentary comes from Imani Gandy and Jessica Mason Pieklo at Rewire.News’ Boom! Lawyered podcast and from David French at National Review.

Continue reading »

Posted in Round-up

Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more will be granted in the “long conference” order list to be released September 27.) This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases” last month, October Term 2018 might be described as a criminal law professor’s dream.

First-year criminal law: What are the “elements” of burglary and robbery?

This question may take lots of lawyers back to fond, or painful, memories of their 1L law school year. In every criminal case, the prosecution is constitutionally required to prove the “elements” of the crime – that is, the “facts necessary to constitute the crime,” as the court put it in 1970 in In re Winship. “What are the elements of Crime X?” is the stuff of first-year final exams, as well as multiple-choice questions found on the Multistate Bar Exam.

Continue reading »

The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wadethe standard position of all recent Republican nominees for president. Members of the Senate Judiciary Committee questioned Judges Neil Gorsuch and Brett Kavanaugh closely on the matter, and many legal scholars have opined that Roe is at risk of either outright reversal or gradual erosion with the addition of a new justice to the bench. At a time when the future is unknown, it is worth considering Roe’s past.

In “The Unfinished Story of Roe v. Wade,” a chapter in the forthcoming book “Reproductive Rights and Justice Stories” (Melissa Murray, Kate Shaw & Reva Siegel eds.), Linda Greenhouse and Reva Siegel provide a fascinating account of the abortion debate before and after Roe that upends some of our basic assumptions about the politics of abortion. Today, Roe is as much a symbol as a legal precedent. For some, the case exemplifies the Supreme Court’s essential role in protecting freedom and equality for those who lack political power. For others, it is a prime example of judicial overreach, and illustrates the backlash that can result when the court inserts itself in politics. But in Greenhouse and Siegel’s account, the focus on Roe v. Wade overstates the court’s role in the abortion debate. They describe how the views of the public, political parties and religious groups shifted both before and after the court’s decision in Roe, and often independent of it. And they explain that many of the battles took place in state legislatures, not before the nine justices.

Continue reading »

Tuesday round-up

By on Sep 18, 2018 at 7:12 am

For The Washington Post, Felicia Sonmez and others report that “Supreme Court nominee Brett M. Kavanaugh and the woman who has accused him of sexually assaulting her decades ago will testify publicly before the Senate on Monday, setting up a potentially dramatic and politically perilous hearing that could determine the fate of his nomination.” For USA Today, Richard Wolf reports on “what could happen as the drama over Christine Blasey Ford’s accusation and Kavanaugh’s denial plays out.” At NPR, Nina Totenberg looks at the “differences and similarities” between these allegations and those made by Anita Hill against Justice Clarence Thomas in 1991. Commentary comes from Curt Levey in an op-ed for Fox News, the editorial board of The New York Times, the editorial board of The Wall Street Journal, and the editorial board of The Washington Post.

Continue reading »

Posted in Round-up

On Tuesday, September 18, at 12:00 p.m., Alliance Defending Freedom will present two panels reviewing last term’s decisions concerning free speech and religious liberty and previewing future cases about the establishment clause. Greg Stohr will moderate the first panel, which will consist of John Bursch, Amanda Shanor and Scott Keller. Amy Howe will moderate the second panel, including David Cortman, Alex Luchenitser and Jeffrey M. Harris. More information about this event, which will be available by live-stream, is available at this link.

On Tuesday, September 25, at 4:30 p.m., the Humanist Legal Society will present a discussion entitled “Is the Establishment Clause Dead or Alive?” The speaker will be Marci Hamilton; David Codell will moderate. More information about this event, which will be held at the University of Pennsylvania Law School, is available at this link.


[UPDATE: On September 18, U.S. solicitor general Noel Francisco sent a letter to the court withdrawing the government’s application. Francisco explained that the U.S. Court of Appeals for the 9th Circuit had granted the stay that the government had requested, eliminating the need for the Supreme Court to act.] 

The federal government today asked the Supreme Court to intervene in a dispute over documents in a lawsuit challenging the ban, announced in 2017, on open service in the U.S. military by transgender Americans.

The case came to the Supreme Court from the U.S. District Court for the Western District of Washington, where a federal judge in December 2018 blocked the government from implementing the ban. The district court declined to revisit that ruling after the government argued the case was moot because the original policy had been changed, and the government appealed to the U.S. Court of Appeals for the 9th Circuit, which rejected the government’s request to put the lower-court ruling on hold during the appeal.

The dispute now before the Supreme Court centers on a district-court order that requires the government to create and submit a log of the documents that the government regards as protected from disclosure because they contain communications made directly to the president. Such a “privilege log” would allow the district court to determine whether a document is indeed protected from disclosure by the “presidential communications” privilege and, if so, whether the plaintiffs have demonstrated a sufficient need for the document to trump the privilege. The district court also directed the government to turn over other documents that the government had previously withheld on the ground that they reflected discussions by government officials as part of the government’s decisionmaking process. For both sets of documents, the district court set a deadline of October 10.

Continue reading »

More Posts: Older Posts
Term Snapshot