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Tuesday round-up

President Donald Trump has said he will announce his nominee for the Supreme Court on July 9. As the countdown moves to six days, Robert Costa, Josh Dawsey and Felicia Sonmez report for the Washington Post that Trump “has spoken to at least four contenders,” but remains “coy about his shortlist.” Michael Shear and Maggie Haberman have the story for the New York Times.

Ballotpedia presents demographic data about all the names on Trump’s list of 25 possible selections. The Center for Public Integrity compiles the financial disclosure forms of the potential nominees.

Aaron Blake suggests in the Washington Post that Judge Amy Coney Barrett “makes an exceeding amount of sense — both for [Trump] personally and for this moment in politics.” At Bustle, Caitlin Cruz assesses, with concern, Barrett’s stance on abortion. For the Yale Journal on Regulation’s Notice & Comment blog, Evan Bernick reviews Barrett’s “extensive scholarship on statutory interpretation” for “insight into how Barrett might approach one of administrative law’s most centrally important and controversial doctrines: Chevron deference, which requires judges to defer to ‘reasonable’ agency interpretations of ‘ambiguous’ statutory text.”

Blair Guild reports for CBS News that Barrett and Judge Brett Kavanaugh are “currently Mr. Trump’s leading contenders for the appointment.” More on Kavanaugh comes from his former – and first – law clerk, Jennifer Mascott, who for Notice & Comment writes that his “consistent record of faithfulness to law, placing constitutional principle over policy, drives Judge Kavanaugh’s position as thought leader and faithful judge.”

With an op-ed in the Washington Post, Hugh Hewitt makes the case that “best choice for the opening is Judge Raymond Kethledge,” who “brings political upside to the process that Kavanaugh and several other contenders cannot.” Ian Millhiser writes at ThinkProgress about the types of judges Trump might nominate, including Barrett, Kavanaugh, Kethledge and others.

Not being considered: Senator Mike Lee, Republican of Utah. Kevin Daley, Robert Donachie and Saagar Enjeti have the story for The Daily Caller.

Other coverage and commentary focus on the nominee’s future effect on the Supreme Court, whoever she or he might be. Kent Scheidegger on Crime & Consequences looks at the consequence of replacing Kennedy in criminal cases; he does “not expect that the Kennedy-Whomever succession will come close on the Richter Scale to the Marshall-Thomas succession on matters of criminal law.” Rick Hasen claims at Slate that “I fully expect issues from voting rights to campaign finance to get far worse when President Trump appoints Kennedy’s successor in the mold of Justice Antonin Scalia.”

Erwin Chemerinsky at The American Prospect declares, “We have seen the beginning of a new era of right-wing judicial activism on the Court, and it is going to be with us for years to come.” In contrast, Michael Bailey for the Washington Post looks at whether it’s “really certain” that “the court will lurch right.” Marc DeGirolami and Kevin Walsh address fellow conservatives with an op-ed in the New York Times, suggesting that “conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior” and urging conservatives “not [to] make the mirror-image mistake of urging immediate doctrinal demolition” after “rightly criticiz[ing] the judicial manufacture of rights.”

Dartunorro Clark of NBC News reports that a “majority of Americans believe the Republican-led Senate should vote on President Donald Trump’s Supreme Court nominee before the November midterm elections,” according to a recent poll. Kimberly Atkins of the Boston Herald reports that “the White House and Republican lawmakers, buoyed by the prospect of President Trump appointing his second Supreme Court nominee in his first term, are making it a campaign issue as well by pressing moderate and vulnerable Democrats to support Trump’s pick.” David Weigel assesses what effect the nomination fight may have on the midterm elections for the Washington Post.

New York Senator Chuck Schumer, the leading Democrat in the Senate, writes in an op-ed for the New York Times that “[i]f you do not want a Supreme Court Justice who will overturn Roe v. Wade and undo the Affordable Care Act, tell your senators they should not vote for a candidate from Mr. Trump’s preordained list. Democrat, Republican, independent, liberal or conservative — we should all want a more representative process for choosing the next Supreme Court justice.” At The Hill, Alexander Bolton reports that Schumer “is under pressure from the left to whip Democrats hard.”

Susan Davis for WGBH writes that “it’s no secret in Washington, D.C., who the critical senators will be in the months ahead,” Republican Senators Susan Collins of Mane and Lisa Murkowski of Alaska, who are both moderate Republican women who support abortion rights, and Democratic Senators Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia, who voted for Neil Gorsuch’s confirmation and are up for re-election in 2018 in states Trump won in 2016.

Collins has attracted attention for her recent promise not to confirm someone who would overturn Roe v. Wade. Jennifer Rubin writes in Washington Post that Collins “should fool no one that voting for one of these judges would not amount to reversing Roe.” Ian Millhiser doubts the credibility of Collins’ claim at ThinkProgress. Senator Bill Nelson of Florida, “among the most vulnerable Democratic senators running for reelection this year,” this week “shed his hyper-cautious reputation” by making the same promise as Collins, Adam C. Smith reports for the Tampa Bay Times.

At the Washington Post, Aaron Blake describes the “clear – and increasing – reason for concern” about the status of Roe. William Goldschlag and Dan Janison report for Governing that Trump has “tipped the result he anticipated from a Supreme Court recast to his liking — that the legality of abortion ‘could very well end up with states at some point.’” If that does happen, “Republicans will have to move from milking a Roe-repeal promise for evangelical Christian votes to defending the consequences of keeping that promise,” Charles Lane writes in an op-ed for Washington Post. Additional abortion coverage comes from Mattie Quinn at Governing.

A week ago the Supreme Court was still in session. CNN’s Ariane de Vogue gives “five takeways from another blockbuster session,” October Term 2017. Kent Greenfield and Adam Winkler write in The Atlantic that this term “big business was quietly racking up a remarkable string of victories in the high court.” Additional coverage of the term comes from Jacqueline Bell of Law360 (subscription or registration required).

Of the decision in Trump v. Hawaii, in which the court voted 5-4 to uphold Trump’s order restricting entry into the United States by nationals of seven countries, David Cole writes for the New York Review of Books that “if [Chief Justice John] Roberts did not close his eyes” to “the evidence that the ban was targeted at Muslims,” “he certainly looked away.” At Balkinization, Marty Lederman argues that even though “most early reports of the Supreme Court’s decision last Tuesday in Trump v. Hawaii dramatically pronounced that the Supreme Court had declared President Trump’s ‘Travel Ban III’ to be ‘valid’ or ‘lawful’ or ‘constitutional,’” more accurately a “5-4 majority of the Justices held, in effect, that even if the Proclamation is unconstitutional there’s nothing the Court can do about it.”

For the George Washington Law Review’s On the Docket, Margot E. Kaminski writes a response to Carpenter v. United States, in which the justices held 5-4 that the government ordinarily needs a warrant to access historical cell-site location information. Valentin Vandendaele at Leiden Law Blog describes – and advocates – use of the efficiency gap to measure partisan gerrymandering, which the court declined to do this term in Gill v. Whitford. As for the decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court held 5-4 that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, Robert Alt praises the decision in two op-eds, for The Hill and the Columbus Dispatch, where he also writes that “folks on both sides have unfortunately succumbed to hyperbolic overreaction.” With an op-ed at Forbes, Greg Maloney calls the decision in South Dakota v. Wayfair, in which the justices voted last week to overrule two prior cases that prohibited states from requiring out-of-state retailers who don’t have a store or warehouse in the state to collect tax on sales to state residents, “a win for physical retailers and the landscape we should have where all sellers can compete evenly.”

Lastly, about Ortiz v. United States, in which the justices held 7-2 that a judge’s simultaneous service on two military courts does not violate the dual-officeholder ban, Steve Vladeck, counsel for the petitioners, writes for the Harvard Law Review Blog that the case “will provoke at least some renewed interest in the field from casebook authors and other scholars, as well it should. But the far more important question is whether it is also a harbinger of increased interest in military justice by the Justices themselves—or a one-off reaffirmation of supervisory authority that, all things being equal, the Court is just as happy to not exercise.”


  • Tony Mauro of the National Law Journal reports that at the biennial conference of the U.S. Court of Appeals for the 4th Circuit, Roberts gave a new definition of his job: “I feel some obligation to be something of an honest broker among my colleagues and won’t necessarily go out of my way to pick fights.”

Recommended Citation: Andrew Hamm, Tuesday round-up, SCOTUSblog (Jul. 3, 2018, 8:32 AM),