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Tuesday round-up

At The Hill, Lydia Wheeler reports that “[a] group working to make the Supreme Court more transparent has asked a federal judge to force the government to release tens of thousands of documents related to [Supreme Court nominee Judge Brett Kavanaugh’s] past work.” Additional coverage comes from Tony Mauro at The National Law Journal (subscription or registration required), who reports that “Fix the Court, aided by American Oversight, sought injunctions against the National Archives and Records Administration and the Department of Justice,” arguing that “the agencies’ failure to respond adequately to previous Freedom of Information Act requests will deprive the public of ‘information essential to ensure that Judge Kavanaugh’s appointment receives rigorous, informed debate.’”

The editorial board of The Washington Post worries that “confirmation battles for major judgeships are looking more and more like political campaigns, with shadowy groups pouring cash into national advertising and lobbying initiatives while keeping their donors and spending decisions opaque.” At Vox, Li Zhou explains that “Democrats may be focused on sinking Brett Kavanaugh’s Supreme Court nomination in the short term, but many note that the fight also offers its own long-term lesson: The party desperately needs to educate voters about the importance of the Supreme Court.”

At Bloomberg, Sahil Kapur reports that an “artful dodge” in an early challenge to the Affordable Care Act may have kept Kavanaugh’s Supreme Court prospects alive. At the Yale Journal on Regulation’s Notice & Comment blog, Aaron Nielson questions this characterization of Kavanaugh’s approach to the ACA case.

The Reporters Committee for Freedom of the Press surveys Kavanaugh’s record on First Amendment issues that affect journalists. At E&E News, Amanda Reilly examines the different approaches to environmental cases taken by Kavanaugh and his colleague on the D.C. Circuit and President Barack Obama’s Supreme Court nominee Chief Judge Merrick Garland.

In an op-ed for The New York Times, Jonathan Adler remarks that “[i]n Brett Kavanaugh, President Trump may not have found a justice to ‘deconstruct the administrative state’ — in Steve Bannon’s formulation — but he has found one who will help bring it to heel.” In an op-ed for The Wall Street Journal, Peter Wallison agrees that Kavanaugh’s “confirmation is likely to strengthen the court’s support for the Constitution’s separation of powers,” reaffirming “the principle that judges, not administrators, are the arbiters of what a statute means—and of whether Congress has granted the agency the power it claims.” At National Review, Carrie Severino maintains that “Judge Kavanaugh’s foremost dedication to the rule of law, irrespective of policy outcomes—… likens him to Justice Gorsuch, and will make Judge Kavanaugh an outstanding justice on the Supreme Court.”

At truthdig, Bill Blum observes that “even before Kennedy announced his retirement, the Supreme Court was hardly a liberal or even a centrist institution.” In an op-ed for USA Today, Richard Greene argues that “[t]he Senate must, at the very least, wait until the end of the special prosecutor’s investigation before voting on whether to confirm Kavanaugh.” At The American Prospect, Dennis Henigan identifies “at least one issue on which Judge Kavanaugh is plainly outside the mainstream of current jurisprudential thought: guns and the Second Amendment.”


  • At Governing, Katherine Barrett and Richard Greene note that “[e]ven before the U.S. Supreme Court dealt a blow to public unions in June,” in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which prohibits public-sector unions from charging nonmembers for collective-bargaining activities, “some states were making moves to soften that potential blow.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jul. 17, 2018, 7:01 AM),