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

Empirical SCOTUS: The hottest bench in town

in Empirical SCOTUS, Featured on Sep 25, 2018 at 2:56 pm

The practice of Supreme Court oral arguments has changed dramatically over time. Once multi-day events, Supreme Court oral arguments now typically take place in a one-hour time span, with some exceptions granted by the justices. Not only has the time allotted to arguments changed, but so has the justices’ engagement. This increased engagement has helped quantitative scholars of the court understand the relationship between oral arguments and votes both in the aggregate and in particular cases.

One claim that has been raised time and again over the years is that Justice Antonin Scalia changed the tenor of oral arguments and specifically gave rise to the “hot bench” of justices who ask many questions. This claim was recently framed a bit differently during Judge Brett Kavanaugh’s confirmation hearing before the Senate Judiciary Committee by Supreme Court advocate and former Solicitor General Paul Clement, who said, “I think the Supreme Court right now is about the hottest bench that the Supreme Court has ever been. I think each of the last justices that have been confirmed by this committee has tended to ask more questions than the justice they replaced.” This post tests these claims on data from Supreme Court oral arguments.



Argument preview: Justices to consider competency in capital cases

in Madison v. Alabama, Featured, Merits Cases on Sep 25, 2018 at 2:03 pm

It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.

Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”



Petitions of the week

in MCC (Xiangtan) Heavy Industrial Equipment Co., Ltd. v. Liebherr Mining & Construction Equipment Inc., Animal Legal Defense Fund v. Department of Homeland Security, County of Maui, Hawaii v. Hawaii Wildlife Fund, Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Williams v. Sessions, Cases in the Pipeline on Sep 25, 2018 at 11:13 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the reach of the Clean Water Act’s permitting requirement, the constitutionality of establishing personal jurisdiction over a defendant based on the contacts of a defendant’s alleged co-conspirators, and the categorical classification of an indivisible state statute that criminalizes false agency endorsement.

The petitions of the week are:

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.

Issue: Whether the due process clause permits a court to exercise personal jurisdiction over a nonresident defendant based on the contacts of the defendant’s alleged co-conspirators with the forum state, as the court below held; or whether the due process analysis looks only to the defendant’s own contacts with the forum state and not those of alleged co-conspirators, as the Nebraska and Texas Supreme Courts have held.


Issue: Whether Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act—which grants the Secretary of Homeland Security sweeping power to waive any or all legal requirements in her sole discretion, and then insulates that exercise of discretion from judicial review—violates the separation of powers.


Issues: (1) Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater; and (2) whether the County of Maui had fair notice that a Clean Water Act permit was required for its underground injection control wells that operated without such a permit for nearly 40 years.


Issues: (1) Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it also applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters; and (2) whether an “ongoing violation” of the Clean Water Act exists for purposes of the act’s citizen-suit provision when a point source has permanently ceased discharging pollutants, but some of the pollutants are still reaching navigable water through groundwater.


Issue: Whether an indivisible state statute that criminalizes false agency endorsement is categorically “an offense relating to … forgery” and thus an aggravated felony.



Argument preview: Justices face nondelegation challenge to federal sex-offender registration law

in Gundy v. U.S., Featured, Merits Cases on Sep 25, 2018 at 10:11 am

Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement.

In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules. One of these cases reached the Supreme Court in 2012 in United States v. Reynolds. By issuing an interim rule, the attorney general had made SORNA’s registration requirements applicable to pre-SORNA offenders, and Billy Joe Reynolds claimed this interim rule was invalid. The U.S. Court of Appeals for the 3rd Circuit rejected Reynolds’ argument because that court had earlier held that SORNA by its own terms required pre-SORNA offenders to register; the validity of the interim rule, it reasoned, was thus irrelevant to Reynolds. At the Supreme Court, Reynolds challenged that logic, contending that SORNA did not of its own force apply to pre-SORNA offenders and that a valid interim rule was therefore necessary to subject him to the registration requirement and its enforcement provision.



Tuesday round-up

in Round-up on Sep 25, 2018 at 6:58 am

For The Wall Street Journal, Natalie Andrews and Kristina Peterson report that “Republicans rallied around embattled Supreme Court nominee Brett Kavanaugh, vowing Monday to push his confirmation through the Senate even as a new allegation of sexual misconduct emerged days before a hearing on an earlier assault claim.” For The New York Times, Sheryl Gay Stolberg and Catie Edmondson report that Kavanaugh “mounted an aggressive defense of himself on Monday, vowing to fight the ‘smears’ and declaring that he will not withdraw his nomination.” At The National Law Journal (subscription or registration required), Tony Mauro and Marcia Coyle report that “[i]n a rare, if not unprecedented, television interview with a Supreme Court nominee, … Kavanaugh told Fox News on Monday night that none of his alleged sexual misconduct with women happened, and that all he wants is a ‘fair process’ when he testifies before the Senate Judiciary Committee on Thursday.” Sean Sullivan and others report for The Washington Post that “[t]op Republican senators signaled an openness to the Senate Judiciary Committee voting on the nomination by the end of the week.” Commentary comes from Andrew Cohen at The New Republic and the editorial board of The Wall Street Journal.



Event announcement

in Event Announcements on Sep 24, 2018 at 3:47 pm

On September 26 at 9:30 a.m., the D.C. Bar will host a Supreme Court review and preview. Speakers include John Elwood, Sarah Harrington and Virginia Seitz; Amy Howe will serve as moderator. More information and registration are available for the in-person presentation and the webinar.


Argument preview: Age discrimination and small public employers

in Mount Lemmon Fire District v. Guido, Featured, Merits Cases on Sep 24, 2018 at 1:31 pm

Mount Lemmon Fire District v. Guido calls on the Supreme Court to decide whether the Age Discrimination in Employment Act covers state and local employers with fewer than 20 employees. The case arose after the fire district’s chief resolved a budget shortfall by laying off the district’s two oldest full-time employees, respondents John Guido and Dennis Rankin. The Equal Employment Opportunity Commission, which has long maintained that the ADEA covers state and local employers of any size, found reasonable cause to believe the fire district had discriminated against Guido and Rankin. But the district court, following the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits, held that the ADEA’s 20-employee threshold applies to state and local employers. The U.S. Court of Appeals for the 9th Circuit reversed, creating a circuit split.



Event announcements

in Event Announcements on Sep 24, 2018 at 11:54 am

On September 25 at 6:00 p.m., the Women’s Bar Association of the District of Columbia will host a panel entitled, “What’s at Stake for Women in the Supreme Court Confirmation Process.” Speakers include Emily Martin, Susan Inman, Andrea Senteno and Thiru Vignarajah; Jill Dash will serve as moderator. More information about this event, which will be held at Sidley Austin on K Street NW in Washington, is available on the WBA website.

On September 26 at 3:30 p.m. PDT and October 2 at 3:30 p.m. PDT, UC Hastings College of the Law will host a two-part Supreme Court review and preview. On September 26, speakers – Richard Boswell, Joel Paul and Radhika Rao – will address civil cases. On October 2, speakers – Hadar Aviram, Aaron Rappaport, Rory Little and Justice Alison Tucher of the California Court of Appeal, First Appellate District, Division Four – will address criminal cases. More information about both events is available on the UC Hastings website.


Argument preview: Justices to consider critical-habitat designation for endangered frog

in Weyerhaeuser Company v. U.S. Fish and Wildlife Service, Featured, Merits Cases on Sep 24, 2018 at 11:20 am

A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the Mobile River delta in Alabama. The frog breeds in ephemeral ponds – ponds that are wet for brief periods and then dry out completely – and spends the rest of its life in upland, open-canopy forests, living in burrows created by other animals. Today, the only known remaining population of the dusky gopher frog lives on a single pond in Mississippi.

In 2001, the U.S. Fish and Wildlife Service declared the dusky gopher frog endangered under the Endangered Species Act. In 2012, the service designated the dusky gopher frog’s “critical habitat.” One of the areas the service designated is a parcel of 1,544 acres in St. Tammany Parish, Louisiana, which the service calls “Unit 1.” Weyerhaeuser Company owns a small portion of Unit 1 and leases the rest of the property from the other corporate owners, who are participating in this case as respondents. After Weyerhaeuser’s challenge to the critical-habitat designation of Unit 1 was rejected by the lower federal courts, the Supreme Court agreed to weigh in.



OT2018 #0: “Looks A Lot Like Grift”

in Madison v. Alabama, Timbs v. Indiana, Gundy v. U.S., Bucklew v. Precythe, Frank v. Gaos, Gamble v. U.S., Nieves v. Bartlett, Franchise Tax Board of California v. Hyatt, First Mondays on Sep 24, 2018 at 9:43 am

We’re kicking off our third season with a live show at William & Mary! Professor James Stern joins us as we take the birds-eye view of OT2018. This year will bring cases about excessive fines, the death penalty and just about everything in between.

More Posts:
Term Snapshot