As we enter the last week in August, the start of the October Term 2018 comes one week closer. While “few marquee cases are lighting up” the court’s docket so far, Tony Mauro of The National Law Journal (subscription or registration required) covers a case testing the constitutionality of a cross-shaped memorial on public land in Maryland that “could energize the coming argument season.” Eriq Gardner of The Hollywood Reporter reports that actress Olivia de Havilland plans to file a petition for certiorari at the Supreme Court in September, a “false light claim (a hybrid of defamation and privacy intrusion)” in a dispute over Ryan Murphy’s FX Series, “Feud: Bette and Joan,” which “she contends falsely portrayed her.”
Sarah D. Wire of the Los Angeles Times reports on why “Senate Democrats’ strategy for defeating President Trump’s pick for the Supreme Court has so far largely relied on getting the American public to care about a procedural fight over millions of pages of archived documents,” not “the more high-profile issues many predicted would dominate the fight over Judge Brett Kavanaugh’s nomination, including abortion, the Affordable Care Act, immigration, executive power and whether a president is subject to a subpoena.”
Two commentators look to the founding and the framers to argue that the Senate should pause Judge Brett Kavanaugh’s pending nomination. In an op-ed for The Washington Post, Laurence Tribe argues that the framers designed the impeachment process to avoid the possibility of justices voting on the impeachment trial of the president who appointed them; as a consequence, Tribe contends, the Senate should not vote on Kavanaugh, who might otherwise cast the deciding vote in a future case against President Donald Trump, “involving an issue such as the president’s obligation to comply with a subpoena to testify or the president’s amenability to indictment.” In an op-ed for the Boston Globe, Mary Sarah Bilder observes that the first Congress put six justices on the first court; she suggests that the Senate should leave the court with the even number of eight justices because of the “significant political and legal crisis surrounding President Trump, a closely divided Senate, and resentments remaining from the procedural battles over the frozen Merrick Garland nomination.”
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