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

Petitions of the week

By on Sep 12, 2018 at 9:46 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the constitutional implications of trial counsel’s failure to make an argument based on persuasive, as opposed to controlling, authority; the extent to which the National Bank Act pre-empts state laws; and the limitations the due process clause imposes when prosecuting a juvenile under a statute that provides only punishments that cannot constitutionally be applied to juveniles.

The petitions of the week are:


Issues: (1) Whether trial counsel’s failure to make an argument that courts of appeals outside the circuit have accepted (and the circuit has not addressed) may amount to constitutionally deficient assistance of counsel or, instead, whether only directly controlling precedent is relevant; and (2) whether, when a defendant and the government have agreed that the court will address at sentencing a factual question for purposes of imposing a statutory mandatory-minimum sentence, they have also implicitly agreed that the defendant’s “offense of conviction” has “established” the factual finding for purposes of the Sentencing Guidelines.


Issue: Whether the due process clause forbids the government from prosecuting an individual who was a juvenile at the time of the crime under a statute that provides no punishment that can constitutionally be applied to that individual.


Issues: (1) Whether the National Bank Act pre-empts state laws regulating national-bank loan terms, such as California’s law requiring payment of interest on mortgage-loan escrow accounts; and (2) whether the U.S. Court of Appeals for the 9th Circuit erred in disregarding regulations from the Office of the Comptroller of the Currency, the primary regulator of national banks, concerning the applicability of state real-estate lending laws to national banks.

Wednesday round-up

By on Sep 12, 2018 at 7:09 am

Ariane de Vogue and Phil Mattingly report for CNN that “[a]fter spending more than 20 hours testifying before the Senate Judiciary Committee last week, Supreme Court nominee Brett Kavanaugh is still answering questions,” as “Democrats are following committee rules and sending Kavanaugh pages and pages of so called ‘questions for the record.’” Todd Ruger reports for Roll Call that “[a]s the Senate continues its processing of … Kavanaugh, it does so in the shadow of the last day of the Senate Judiciary Committee’s hearing, with strikingly different depictions of the appeals court judge on display.” At USA Today, Erin Kelly reports that Judiciary Committee “Chairman Chuck Grassley, R-Iowa, released an agenda Monday with Kavanaugh’s name at the top of a list of judicial nominees that the committee will consider Thursday,” but that “Democrats are expected to use a committee rule to delay the vote until Sept. 20 or 27.”

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Tuesday round-up

By on Sep 11, 2018 at 7:15 am

Commentators continue to weigh in on the nomination of Judge Brett Kavanaugh to the Supreme Court in the wake of Kavanaugh’s Senate confirmation hearing last week. In an op-ed for Central Maine, Kavanaugh’s former White House colleague Sarah Day praises him as “a thoughtful leader [and] a champion of others.” For The Yale Daily News, Adelaide Feibel writes that “a few select Yalies had the chance [last week] to voice their opinions of Kavanaugh on a grand stage, before the Senate and the nation.” Lisa Keen argues at Keen News Service that Kavanaugh’s testimony “did nothing to quell concerns in the LGBT community that Kavanaugh is an ultra-conservative, maybe even anti-LGBT, jurist who will almost certainly give the Supreme Court’s existing four conservative justices the fifth vote they need to vote against the equal rights interests of LGBT people.”

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On September 25 at 12:30 p.m. EST, the State and Local Legal Center will host a webinar previewing the upcoming Supreme Court term. Speakers include Tom Fisher, Matt Zinn and Brianne Gorod. Registration instructions are available here.


On Monday, September 17, at 4:30 p.m., the Constitutional Sources Project, iCivics and the Institute for Constitutional History at New-York Historical Society will celebrate Constitution Day with Justice Sonia Sotomayor. More information about the event, which will be held at the NYU Skirball Center Auditorium in New York, is available on this flyer.


In our (hopefully) final episode of Good Behaviour (for a while), Ian Samuel and Leah Litman discuss their favorite and least favorite moments of Judge Brett Kavanaugh’s confirmation hearing.

Monday round-up

By on Sep 10, 2018 at 7:08 am

On Friday, the Senate Judiciary Committee wrapped up its four-day hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court with a day of testimony from witnesses, including former law clerks to Kavanaugh, two former solicitors general, a survivor of the Parkland school shooting, and John Dean, President Richard Nixon’s White House counsel during Watergate. We live-blogged the session, and Jon Levitan rounded up early coverage and commentary for this blog. Amy Howe recaps the highlights of the day’s proceedings in a podcast at Howe on the Court; a Daily Journal podcast also has a rundown.

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The Senate Judiciary Committee has concluded its hearing on the nomination of Judge Brett Kavanaugh to the Supreme Court. Today consisted of witness testimony; there were four panels and 28 total witnesses. Coverage of the day’s events comes from Jessica Gresko of the Associated Press, who reports that “with [Kavanaugh’s] questioning over, he seemed on his way to becoming the court’s 114th justice.” For The Washington Post, Seung Min Kim focuses on the testimony of John Dean, former White House counsel for the Nixon Administration, “who played a crucial role in the Watergate scandal” and testified against Kavanugh’s confirmation. Further coverage comes from Amanda Becker of Reuters, Byron Tau of The Wall Street Journal; Erik Wasson of Bloomberg; and Emma O’Connor of Buzzfeed.

Commentary on the hearing comes from Damon Root for Reason; Ian Millhiser of ThinkProgress; John Nichols for The Nation; Hans A. von Spakovsky for Fox News; David B. Rivkin Jr. in The Hill; Monica Hesse for The Washington Post; Jeremy Stahl of Slate, with another piece from Slate from Dahlia Lithwick, who focuses on the protesters who interrupted the hearings. Editorials come from The Wall Street Journal, which decried Senator Cory Booker’s release of documents on Thursday, and The Washington Post, which lamented “a depressing display of the breakdown of Senate norms.” Two podcasts discuss the hearing — Elizabeth Slattery looks at the highlights with Tom Jipping and Hans A. von Spakovsky on SCOTUS 101, while Garrett Epps was interviewed by Diane Rehm on On My Mind.

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We live-blogged the fourth day of Supreme Court nominee Judge Brett Kavanaugh’s confirmation hearing before the Senate Judiciary Committee.

Witnesses provided testimony.

Petitions of the week

By on Sep 7, 2018 at 3:00 pm

This week we highlight petitions pending before the Supreme Court that address, among other things, Article III standing requirements with regard to individuals whose personal information is held in a database breached by hackers, the effect of the Federal Tort Claims Act’s discretionary-function exception on the act’s law-enforcement proviso, and whether a trial court may deny a criminal defendant’s motion to represent himself based on the defendant’s improper motive or unethical conduct.

The petitions of the week are:


Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.


Issue: Whether individuals whose personal information is held in a database breached by hackers have Article III standing simply by virtue of the breach even without concrete injury, as the U.S. Courts of Appeals for the 3rd, 6th, 7th, 9th and District of Columbia Circuits have held, or whether concrete injury as a result of the breach is required for Article III standing, as the U.S. Courts of Appeals for the 1st, 2nd, 4th and 8th Circuits have held.


Issue: Whether, and to what extent, the discretionary-function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), restricts the FTCA’s law enforcement proviso, which waives the United States’ sovereign immunity for “[a]ny claim” arising out of an enumerated list of intentional common-law torts committed by federal law-enforcement officers.


Issue: Whether the South Carolina Supreme Court erred when it held, in conflict with many federal courts of appeals, that a trial court may not deny a criminal defendant’s motion to represent himself based on the “defendant’s improper motive or unethical conduct.”

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