Government asks justices to act in document dispute in transgender-ban case

Government asks justices to act in document dispute in transgender-ban caseThe federal government today asked the Supreme Court to intervene in a dispute over documents in a lawsuit challenging the ban, announced in 2017, on open service in the U.S. military by transgender Americans. The case came to the Supreme Court from the U.S. District Court for the Western District of Washington, where a federal […]

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Government asks justices to act in document dispute in transgender-ban case

The federal government today asked the Supreme Court to intervene in a dispute over documents in a lawsuit challenging the ban, announced in 2017, on open service in the U.S. military by transgender Americans.

The case came to the Supreme Court from the U.S. District Court for the Western District of Washington, where a federal judge in December 2018 blocked the government from implementing the ban. The district court declined to revisit that ruling after the government argued the case was moot because the original policy had been changed, and the government appealed to the U.S. Court of Appeals for the 9th Circuit, which rejected the government’s request to put the lower-court ruling on hold during the appeal.

The dispute now before the Supreme Court centers on a district-court order that requires the government to create and submit a log of the documents that the government regards as protected from disclosure because they contain communications made directly to the president. Such a “privilege log” would allow the district court to determine whether a document is indeed protected from disclosure by the “presidential communications” privilege and, if so, whether the plaintiffs have demonstrated a sufficient need for the document to trump the privilege. The district court also directed the government to turn over other documents that the government had previously withheld on the ground that they reflected discussions by government officials as part of the government’s decisionmaking process. For both sets of documents, the district court set a deadline of October 10.

The federal government, in a brief signed by U.S. solicitor general Noel Francisco, went to the Supreme Court today, arguing that a 2004 decision by the court in a case involving then-Vice President Dick Cheney “squarely forecloses the burdensome and intrusive discovery obligations” that the district-court order would impose. This is particularly true, the government argues, because the district-court’s ruling that the plaintiffs in the case need access to these documents flows from the court’s ruling on the plaintiffs’ request to block the transgender ban, which the government has appealed.

The government’s request for relief went to Chief Justice John Roberts, who since the retirement of Justice Anthony Kennedy has been responsible for emergency appeals from the 9th Circuit. Roberts could refer the request to the full court or (as he did over the weekend in another case) rule on it alone. And although the government’s brief focused primarily on asking the Supreme Court to block the district-court’s orders on discovery, it also suggested that the court could take broader action, including by agreeing to review the merits of the district-court’s decision blocking the government from implementing the ban. Whatever Roberts and the court decide to do, though, they are likely to act relatively quickly.

This post was originally published at Howe on the Court.

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Chief justice puts donor-disclosure ruling on hold

Chief justice puts donor-disclosure ruling on holdLast month a federal district court invalidated a Federal Election Commission regulation governing when political nonprofit groups, sometimes referred to as “dark money” groups, must disclose their donors. On Friday, one of the groups at the center of the ruling urged the Supreme Court to put the decision on hold, calling the district court’s ruling […]

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Chief justice puts donor-disclosure ruling on hold

Last month a federal district court invalidated a Federal Election Commission regulation governing when political nonprofit groups, sometimes referred to as “dark money” groups, must disclose their donors. On Friday, one of the groups at the center of the ruling urged the Supreme Court to put the decision on hold, calling the district court’s ruling “unprecedented” and its timing – so close to the November elections – “extraordinary.” On Saturday, Chief Justice John Roberts granted the group’s request, allowing the existing regulation to stay in effect for at least the foreseeable future.

The emergency application came from Crossroads Grassroots Policy Strategy, a nonprofit linked to American Crossroads, a “super PAC” started by Karl Rove. The Internal Revenue Service allows groups like Crossroads Grassroots to spend money on elections as long as it is not their “primary purpose.” The FEC has long interpreted federal election laws to require such groups to disclose their donors only when the donors’ contributions were earmarked for a specific “independent expenditure” – communications that expressly urge voters to vote for or against candidates. (The ruling does not affect communications known as “issue ads,” which may discuss policies or candidates but don’t explicitly support or oppose a candidate.)

But U.S. District Judge Beryl Howell rejected the FEC’s interpretation on August 3, concluding that nonprofits like Crossroads Grassroots should be required to disclose any donors who give at least $200 toward any independent expenditures. If allowed to stand, the ruling would be significant: Political nonprofits have spent over $700 million on “independent expenditures” since 2010.

Howell stayed her order for 45 days, but neither Howell nor the U.S. Court of Appeals for the District of Columbia Circuit would further extend the stay, which ends on Monday, September 17. On Friday, Crossroads Grassroots went to the Supreme Court for relief, telling Roberts (who is responsible for emergency appeals from Washington, D.C.) that the FEC regulation had been used in 19 previous elections, “and there is no compelling reason to hastily throw the clear reporting standards it provides to donors and speakers into confusion just prior to a national election.” Roberts could have referred the request to the full court, as justices often do, but instead he opted to act alone, in a brief one-sentence disposition that indicated that the district court’s decision was “stayed pending further order of the undersigned or of the Court.” Roberts’ quick action may have stemmed from a desire to bring clarity to the situation as far in advance of the Monday deadline as possible, but it may also reflect his frustration at the D.C. Circuit’s failure to act on Crossroads Grassroots’ request.

This post was first published at Howe on the Court.

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Kavanaugh responds to post-hearing questions

Kavanaugh responds to post-hearing questionsLast week the Senate Judiciary Committee held a hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy. After the hearing ended, senators submitted written questions – over 1,200 in all – to Kavanaugh, who responded last night. The senators’ questions address everything from Kavanaugh’s reaction when he was approached at the […]

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Kavanaugh responds to post-hearing questions

Last week the Senate Judiciary Committee held a hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy. After the hearing ended, senators submitted written questions – over 1,200 in all – to Kavanaugh, who responded last night. The senators’ questions address everything from Kavanaugh’s reaction when he was approached at the hearing by the father of a school-shooting victim to Kavanaugh’s personal finances; the questions and Kavanaugh’s responses comprise over 250 pages.

As he had at the hearing, Kavanaugh declined to respond to a number of questions on the ground that the issue “could well come before me in future litigation”; Kavanaugh also repeatedly referred the senators to his previous answers at the hearing regarding, for example, whether he had known in 2002 that a Republican Senate staffer had accessed the email accounts of Democratic Judiciary Committee staffers without their knowledge. Other responses contained more details, however, as Kavanaugh:

  • Stated that, when he used the term “abortion-inducing drugs” at his hearing to discuss his opinion in a challenge by religious nonprofits to the Affordable Care Act’s birth-control mandate, he was “accurately describing the plaintiffs’ position”; he “was not expressing an opinion on whether particular drugs induce abortion.”
  • Explained that, when he was approached by Fred Guttenberg, whose daughter Jaime was killed in the shooting at Marjory Stoneman Douglas High School this year, he “did not recognize” Guttenberg and “assumed he was a protestor.” “In a split second,” Kavanaugh continued, “my security detail intervened and ushered me out of the hearing room.” “If I had known who he was,” Kavanaugh stressed, “I would have shaken his hand, talked to him, and expressed my sympathy. And I would have listened to him.”
  • Announced that if confirmed he would step down from the board of the Washington Jesuit Academy, a Catholic school for boys from lower-income families. Kavanaugh declined to say whether, because the school accepts vouchers from the D.C. government to pay for tuition, he would recuse from any cases involving school vouchers; instead, he wrote that he would “consider that question as appropriate.”
  • Addressed questions about his finances, including substantial credit-card debt – later paid off – that he had previously described as arising from (among other things) his purchase of season tickets for Washington’s professional baseball team. Kavanaugh noted that he and his wife currently have “no debts other than our home mortgage,” and he provided a list of examples of the couple’s spending on home maintenance. “We have not received financial gifts other than from our family which are excluded from disclosure in judicial financial disclosure reports,” Kavanaugh wrote. “Nor,” he added, “have we received other kinds of gifts from anyone outside of our family, apart from ordinary non-reportable gifts related to, for example, birthdays, Christmas, or personal hospitality.” Kavanaugh also stressed that he had “not had gambling debts or participated in ‘fantasy’ leagues.”

When the Senate Judiciary Committee met this morning, committee chairman Charles Grassley announced that the committee would vote on Kavanaugh’s nomination next Thursday, September 20. But even with a date set for a committee vote, the battle over the documents relating to Kavanaugh’s service in the White House is likely to continue.

This post was originally published at Howe on the Court.

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Divided court stays out of foster care dispute

Divided court stays out of foster care disputeThe Supreme Court today declined to intervene in a dispute between the city of Philadelphia and Catholic Social Services over foster care and the Catholic Church’s position on same-sex marriage. Catholic Social Services had asked the justices to block an “intake freeze” on the new placements of foster children in the agency’s foster-care program while […]

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Divided court stays out of foster care dispute

The Supreme Court today declined to intervene in a dispute between the city of Philadelphia and Catholic Social Services over foster care and the Catholic Church’s position on same-sex marriage. Catholic Social Services had asked the justices to block an “intake freeze” on the new placements of foster children in the agency’s foster-care program while it appeals a district court’s ruling to the U.S. Court of Appeals for the 3rd Circuit, but the Supreme Court denied the agency’s request. Three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the agency’s application, leaving the agency two votes short of the five that it would have needed.

The events giving rise to the lawsuit began last spring, when the city’s department of human services suspended new placements of foster children in CSS’ foster-care program because the agency refused to certify same-sex couples who wanted to be foster parents. CSS went to federal district court, arguing that the policy violates its right to freely exercise its religion. After a three-day hearing, the district court denied the agency’s request for temporary relief, and the 3rd Circuit rejected the agency’s request to put the freeze on hold while it reviews the agency’s appeal.

CSS then went to the Supreme Court for relief, telling the justices that if they do not step in, the city’s “vindictive conduct will lead to displaced children, empty homes, and the closure of a 100-year-old ministry,” while the city will not be harmed at all. The city countered that it is simply putting conditions on how government foster-care funds can be spent, and here CSS’ contract with the city requires it to comply with the city’s nondiscrimination policies and laws.

This post was originally published at Howe on the Court.

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Court releases November argument calendar

Court releases November argument calendarThe Supreme Court released the argument calendar for its November sitting, which begins on Monday, October 29. During the six days of the November sitting, the justices will hear oral arguments in 12 cases, involving topics that range from the proper method of service for a foreign country to pre-emption by the Atomic Energy Act. […]

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Court releases November argument calendar

The Supreme Court released the argument calendar for its November sitting, which begins on Monday, October 29. During the six days of the November sitting, the justices will hear oral arguments in 12 cases, involving topics that range from the proper method of service for a foreign country to pre-emption by the Atomic Energy Act.

The November sitting kicks off with two oral arguments involving the interpretation of the Federal Arbitration Act. Henry Schein, Inc. v. Archer & White Sales asks the justices to decide whether the act allows a court to decline to enforce an arbitration agreement that gives the arbitrator the power to decide questions about arbitrability if the court believes that the arbitrability claim is “wholly groundless.” And in the second argument of the day, in Lamps Plus v. Varela, the court will consider whether the act bars a state-law interpretation of an arbitration agreement that would allow class arbitration, even when the agreement itself does not mention class arbitration.

The other cases scheduled for oral argument in the November sitting are:

Washington State Department of Licensing v. Cougar Den (Oct. 30) – Whether a state tax levied on a fuel wholesaler owned by a member of the Yakama Nation violates Article III of an 1855 treaty with the federal government that gives members of the nation the right to “travel upon all public highways.”

Garza v. Idaho (Oct. 30) – When an inmate waives his right to appeal and then argues that his trial counsel was constitutionally inadequate because he failed to appeal, despite the inmate’s request, should courts assume that the inmate was prejudiced by his lawyer’s failure to appeal, or must the inmate actually show that he was prejudiced by indicating what issues he would have raised had he appealed?

Jam v. International Finance Corp. (Oct. 31) – Whether, under the International Organizations Immunities Act, which gives international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments,” international organizations have the same immunity as foreign governments have under the Foreign Sovereign Immunities Act – which contains an exception from immunity for “commercial activities.”

Frank v. Gaos (Oct. 31) – Whether awarding the majority of the proceeds from a class action to charities and nonprofits (known as a cy pres award), with no direct relief to members of the class, is consistent with the requirement that a settlement binding class members be “fair, reasonable, and adequate.”

Sturgeon v. Frost (Nov. 5) – Whether the Alaska National Interest Lands Conservation Act, a federal law governing the National Park Service’s authority over lands in Alaska, bars the National Park Service from regulating other land – owned by the state, native corporations or private owners – within the boundaries of Alaska national parks.

Virginia Uranium v. Warren (Nov. 5) – Whether Virginia’s ban on uranium mining conflicts with the Atomic Energy Act, which gives exclusive power to regulate the radiological safety of milling and the resulting tailings to the federal Nuclear Regulatory Commission.

Bucklew v. Precythe (Nov. 6) – A challenge to the planned execution by lethal injection of an inmate who suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat,” as well as whether the inmate has made the showings required by the court’s lethal-injection precedent regarding the procedures that would be used to execute him by the alternative method that he has proposed – the gas chamber – and the kind of pain that execution by lethal gas, compared with lethal injection, would cause.

BNSF Railway v. Loos (Nov. 6) – Whether a railroad’s payment to an employee for time lost from work can be taxed under the Railroad Retirement Tax Act, the federal law that – along with the Railroad Retirement Act – establishes a separate retirement and disability benefit system for railroad employees.

Republic of Sudan v. Harrison (Nov. 7) – Whether, under the Foreign Sovereign Immunities Act, a plaintiff can serve a foreign government by sending his summons and complaint by mail to the country’s embassy in the United States, or whether he must instead send the summons and complaint directly to the country’s foreign minister in that country.

Culbertson v. Berryhill (Nov. 7) – Whether, when the Social Security Act provides that a court can award attorney’s fees “not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled,” the 25-percent cap applies only to attorney’s fees for representing a claimant in court or also to fees for representing a claimant before the Social Security Administration.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in Bucklew v. Precythe; the author of this post is not affiliated with the firm.]

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With Kavanaugh hearing set, Senate releases records

With Kavanaugh hearing set, Senate releases recordsAlthough the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a […]

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With Kavanaugh hearing set, Senate releases records

Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

The emails indicate that the White House counsel’s office runs, as another White House attorney described it in a draft of a speech that appeared in Kavanaugh’s emails, much like a small law firm. At the beginning of the Bush administration, the “managing partner” was Alberto Gonzales, a former Texas judge; an early email appeared to instruct White House lawyers not to schedule meetings with Gonzales over lunch because “Al” “doesn’t do lunch.” Another email indicated that when a new lawyer in the office started, the veterans tried to offload the less desirable parts of their portfolios onto the newcomer.

While Kavanaugh was a White House lawyer, his portfolio was eclectic, ranging from participating in the Bush administration’s efforts to select new federal judges and ensure their confirmation to being the office’s in-house ethics expert. Kavanaugh fielded a steady drumbeat of questions regarding ethics issues, involving everything from approving invitations for political events at the White House to signing off on what kind of stationery to use for graduate school recommendations and the use of private planes by White House officials for political travel. Perhaps ironically, the preservation of presidential records was also part of Kavanaugh’s portfolio, with another White House lawyer jokingly referring to him as “Mr. Presidential Records”: Kavanaugh weighed in, for example, on whether White House official Josh Bolten could have his Lotus Notes email database downloaded to a CD before his email was converted to Outlook.

After the September 11, 2001, terrorist attacks, Kavanaugh’s work came to include a variety of issues related to the country’s response. He was involved in or received requests regarding compensation for victims of the attacks, liability for airplane manufacturers, and (maybe most significantly) the drafting of talking points for anti-terrorism laws. Kavanaugh received an email about John Walker Lindh, the American captured as an enemy combatant in Afghanistan, from Ben Wittes, now a prominent national security expert who was at the time a member of the editorial board at the Washington Post; Kavanaugh passed off Wittes’ question to others, but Kavanaugh clearly seemed aware of the situation. Kavanaugh also worked on the USA Patriot Act, a law passed in the wake of the attacks that gave the government (among other things) new surveillance powers – a fact that came out in the context of an email about a Capitol Hill staffer applying to the White House counsel’s office. (Kavanaugh’s emails also show that, after the September 11 attacks, he was one of many senior White House staffers who received an email from Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas, then at the Heritage Foundation, wrote that her “prayers and support are heightened for each of you in the Bush administration. It is my personal belief that God has you here for a reason.”)

Although Kavanaugh was acting as a White House lawyer, his work often overlapped closely with politics. One email, for example, suggests that Kavanaugh was involved in meetings regarding “asset deployment,” which a 2007 Washington Post article described as a strategy of coordinating official announcements, trips and grants to promote the Bush administration’s  agenda and re-election. And in an email to Don Willett, then an official at the Department of Justice but now a judge on the U.S. Court of Appeals for the 5th Circuit best known for his prolific use of Twitter while a justice on the Texas Supreme Court, Kavanaugh asked whether any “Clinton judicial appointees who had been state judges” had received contributions from Enron, the energy company that collapsed after its widespread accounting-fraud scheme became public.

The emails also show that a day in the life of a White House lawyer was a long one: Kavanaugh often began emailing shortly after 6 a.m. and would continue to do so until after midnight. In a 2002 email, Kavanaugh summarized a typical day, which started with a senior staff meeting at 7:30 a.m. and continued with several more meetings (including a “message meeting”).

The emails sometimes reflect the minutiae of day-to-day life working in the White House, including updates on parking passes, efforts to expand the capacity of Kavanaugh’s voicemail or to hunt down library  books checked out of the Department of Justice, bills for the food that Kavanaugh ate during a stay at Camp David (“I had 3 meals and some drinks and snack out of the refrigerator,” wrote Kavanaugh) and arrangements to interview paralegals. Other emails are strictly personal, such as those from Ashley Estes, Bush’s personal secretary, whom Kavanaugh would marry in 2004, inquiring about when Kavanaugh might be free for dinner or whether she should RSVP for a Republican National Committee gala.

This post was originally published at Howe on the Court.

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Roberts takes on 9th Circuit after Kennedy retirement

Roberts takes on 9th Circuit after Kennedy retirementJustice Anthony Kennedy is now officially a retired justice of the U.S. Supreme Court. Among other things, this means that Kennedy no longer sits as the “circuit justice” for the 9th Circuit – a position in which he was responsible for both emergency requests (such as July’s request by the federal government for the Supreme […]

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Roberts takes on 9th Circuit after Kennedy retirement

Justice Anthony Kennedy is now officially a retired justice of the U.S. Supreme Court. Among other things, this means that Kennedy no longer sits as the “circuit justice” for the 9th Circuit – a position in which he was responsible for both emergency requests (such as July’s request by the federal government for the Supreme Court to intervene in a climate-change lawsuit brought by children and teenagers) and more mundane matters, such as requests to extend the time to file a petition for review. Today the Supreme Court released a new set of circuit justice assignments, but the list remains relatively unchanged: Chief Justice John Roberts will take on the 9th Circuit, at least until a ninth justice is confirmed.

Although emergency requests are directed to the circuit justice for the geographic area from which a case arises (Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands and Washington collectively comprise the 9th Circuit, for example), the circuit justice can and generally does refer significant requests to the full court, as Kennedy did with the federal government’s application in the climate-change lawsuit. The circuits are often (but not always) assigned to a justice who has some connection with that geographic area: Justice Stephen Breyer is assigned to the 1st Circuit, where he sat as a judge before joining the court, while Justice Clarence Thomas, who hails from Georgia, is assigned to the 11th Circuit, which is made up of Alabama, Georgia and Florida. The chief justice normally takes on the District of Columbia, Federal and 4th Circuits, so it seems likely that this list could be further revised (and perhaps further reshuffled) when a new justice is confirmed.

This post was originally published at Howe on the Court.

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Court stays out of climate change lawsuit for now

Court stays out of climate change lawsuit for nowThe Supreme Court declined to intervene today in a lawsuit filed by a group of 21 children and teenagers who allege that they have a constitutional right to a “climate system capable of sustaining human life.” The federal government had asked the justices to put discovery and a trial, currently scheduled for late October, on […]

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Court stays out of climate change lawsuit for now

The Supreme Court declined to intervene today in a lawsuit filed by a group of 21 children and teenagers who allege that they have a constitutional right to a “climate system capable of sustaining human life.” The federal government had asked the justices to put discovery and a trial, currently scheduled for late October, on hold until the U.S. Court of Appeals for the 9th Circuit can rule on the government’s petition asking the appeals court to direct a federal district court to dismiss the case or, at a minimum, to stay discovery and the trial. But even as they stayed out of the dispute for now, the justices expressed some skepticism about the sweeping nature of the plaintiffs’ claims.

In the lawsuit, which was originally filed in 2015 against the Obama administration, the group contends that the federal government’s actions are causing a “dangerous climate system,” and it seeks (among other things) an order that would require the government to prepare and implement a remedial plan to phase out the use of CO2 emissions. The district court has allowed the lawsuit to go forward, and the 9th Circuit has thus far refused to step in.

On July 17, the federal government, in a brief signed by U.S. Solicitor General Noel Francisco, asked the Supreme Court to intervene. Francisco told the justices that, if either the court of appeals or the Supreme Court does not step in, the government “will be forced to participate in a highly compacted period of discovery and trial preparation followed by a 50-day trial, all of which will itself violate bedrock limitations on agency decisionmaking and the judicial process imposed by” federal law and the separation of powers. Moreover, Francisco added, because the plaintiffs are arguing that they have been harmed by “the cumulative effects of CO2 emissions from every source in the world over decades,” there would be no real harm from waiting a short time for the 9th Circuit to rule.

This afternoon the Supreme Court rejected the government’s request, calling it “premature.” But the court left open the possibility that the government could return with a similar request at a later stage in the proceedings. It also described the “breadth” of the plaintiffs’ claims as “striking,” observing that there are “substantial grounds for difference of opinion” on whether those claims belong in court at all. The justices instructed the federal district court to “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the” federal government’s other pending motions, which could result in dismissal of some or all of the plaintiffs’ claims.

This post was originally published at Howe on the Court.

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Judge Kavanaugh and the Second Amendment

Judge Kavanaugh and the Second AmendmentSince Justice Anthony Kennedy announced his plans to retire, analysis of the potential effects of his retirement has mostly focused on areas of the law in which he provided the swing vote for a more liberal result – for example, abortion or gay rights. On those issues, Kennedy’s replacement with a more conservative justice could […]

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Judge Kavanaugh and the Second Amendment

Since Justice Anthony Kennedy announced his plans to retire, analysis of the potential effects of his retirement has mostly focused on areas of the law in which he provided the swing vote for a more liberal result – for example, abortion or gay rights. On those issues, Kennedy’s replacement with a more conservative justice could shift the law to the right. But Kennedy sided with his more conservative colleagues in finding a Second Amendment right to have a handgun in the home, and there is no reason to believe that Judge Brett Kavanaugh, if confirmed, is likely to disagree. A more significant question, though, is whether a Supreme Court that included Kavanaugh might take a more expansive view of the Second Amendment and strike down some existing gun laws. Kavanaugh’s track record suggests that he might be willing to do so for at least some gun laws, although he does not regard the Second Amendment as creating an absolute right to have or carry a gun. It’s not clear, though, what effect Kavanaugh’s views would have on the court: The answer may hinge on the votes of his colleagues, and in particular Chief Justice John Roberts and Justice Samuel Alito.

The Second Amendment to the Constitution provides that “the right of the people to keep and bear Arms, shall not be infringed.” In 2008, in District of Columbia v. Heller, a divided Supreme Court struck down a D.C. law that generally banned the possession of handguns in the home, ruling that the law violated the Second Amendment. Two years later, in McDonald v. City of Chicago, the court (again, divided) invalidated a Chicago law similar to Washington’s, making clear that the Second Amendment also applies to the states. Since then, the justices have been asked several times to overturn lower-court decisions upholding state gun laws that challengers say violate the Second Amendment, but they have repeatedly declined to step in.

One such occasion came a little over a year ago, when the justices refused to weigh in on a California law that, as a general rule, bars people from carrying guns in public. Justice Clarence Thomas dissented from the denial of review, in an opinion joined by Justice Neil Gorsuch. Thomas lamented the Supreme Court’s failure to take up the case, calling the lower court’s ruling “indefensible.” “The most natural reading,” Thomas wrote, of the definition of the right to “bear Arms” should include the right to carry a gun in public. “I find it extremely improbable,” Thomas continued, that “the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.” “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry,” Thomas concluded, “the time has come for the Court to answer this important question definitively.”

Even more recently, Thomas dissented from the court’s announcement that it would not review a challenge to California’s 10-day waiting period for gun purchases. The U.S. Court of Appeals for the 9th Circuit rejected a challenge by two California men, who had argued that the waiting period was unconstitutional for, at the very least, state residents who already own a gun or have a license to carry a concealed weapon. When the Supreme Court rejected the men’s petition in February 2018, Thomas was sharply critical of both the 9th Circuit’s ruling and the Supreme Court’s disposition of the case. He argued that the lower courts had generally failed to give the Second Amendment “the respect due an enumerated constitutional right.” “If a lower court had treated another right so cavalierly,” Thomas continued, “I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court,” and the justices’ “continued refusal to hear Second Amendment cases only enables” the double standard that the lower courts apply to gun-rights cases.

In the wake of the Supreme Court’s decision in Heller, the District of Columbia went back to the drawing board and passed a law that required gun owners to register their firearms; the law also prohibited both semi-automatic rifles and the possession of magazines with more than 10 rounds of ammunition. A challenge to the law made its way to the U.S. Court of Appeals for the District of Columbia Circuit, where a three-judge panel upheld the ban and most of the registration requirements. Kavanaugh dissented from that ruling; he would have struck down both the ban on semi-automatic rifles and the registration requirements. (He indicated that he would have sent the ban on large-capacity magazines back to the lower court for more fact-finding.)

Kavanaugh reasoned that handguns, which are mostly semi-automatic, are protected by the Second Amendment, and he saw no real difference, from a constitutional perspective, between handguns and semi-automatic rifles. Semi-automatic rifles, he observed, “have not traditionally been banned” and “remain in common use today”; indeed, he noted, handguns are more often used in violent crimes than semi-automatic rifles. The registration requirements, he continued, are unconstitutional because gun owners have traditionally not been required to register all guns that they own legally – “as distinct,” Kavanaugh pointed out, “from licensing of gun owners or mandatory recordkeeping by gun sellers.”

Although Kavanaugh indicated that he would have struck down the ban on semi-automatic rifles and the registration requirements, his discussion of the proper test to use to review gun laws suggests that he might be willing to uphold some gun laws, such as those requiring a license to carry a concealed weapon, as long as they are consistent with the history and tradition of regulating guns. He contended that a test that assesses “gun bans and regulations based on text, history, and tradition” will often give governments “more flexibility and power” than a balancing test, because “history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right.”

Whatever Kavanaugh’s position is likely to be on different efforts to regulate guns, he would, if confirmed, be only one of nine justices on the court. We know from his recorded dissents from the denial of review that Thomas would vote to review and overturn some existing gun laws, and we know that Gorsuch – at least to some extent – agrees with him. But it takes four votes to grant review in a case, and we do not know whether Roberts and Alito also agree with Thomas but have opted not to say so publicly, or whether they instead are content to leave the court’s gun-rights jurisprudence as it is. We could know more about the future of gun rights relatively soon, as various challenges to gun laws make their way toward the Supreme Court. Indeed, just this week, the 9th Circuit struck down Hawaii’s ban on carrying weapons openly outside of the home; even if the case goes to the full 9th Circuit, the losing party is almost certain to ask the Supreme Court to weigh in.

This post was originally published at Howe on the Court.

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Kavanaugh returns questionnaire

Kavanaugh returns questionnaireLate last week Judge Brett Kavanaugh, President Donald Trump’s nominee to succeed the retiring Justice Anthony Kennedy, returned the questionnaire given to him by the Senate Judiciary Committee. Here are some of the interesting tidbits revealed in the questionnaire: Kavanaugh was able to parlay his time in law school and his three clerkships (two in […]

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Kavanaugh returns questionnaire

Late last week Judge Brett Kavanaugh, President Donald Trump’s nominee to succeed the retiring Justice Anthony Kennedy, returned the questionnaire given to him by the Senate Judiciary Committee. Here are some of the interesting tidbits revealed in the questionnaire:

  • Kavanaugh was able to parlay his time in law school and his three clerkships (two in the federal courts of appeals and one on the U.S. Supreme Court) into five different summer associate positions in prestigious law firms: He spent the summer of 1988 – the summer after his first year in law school – at the firm then known as Pillsbury Madison & Sutro; he divided his time in the summer of 1989 between Miller Cassidy Larocca & Lewin (a small litigation boutique in Washington, which has since become part of the law firm Baker Botts) and Covington & Burling; he spent the summer of 1990 at Williams & Connolly; and he spent the summer of 1992 at Munger Tolles. Kavanaugh did not work as a summer associate at Kirkland & Ellis, where he would wind up after his first stint in the Office of the Independent Counsel.
  • Kavanaugh serves on the selection committee for the Dwight D. Opperman Foundation’s Devitt Award. Dwight Opperman, for whom the foundation is named, was the creator of the legal research tool Westlaw; when Opperman died in 2013, Kennedy gave the eulogy. As David Lat of Above the Law has reported, the prize – named after Edward Devitt, a federal district judge in Minnesota who also served in the U.S. House of Representatives — was intended to be a “Nobel Prize” for the judiciary, and it comes with a $15,000 cash award.

  • For two years, from 1999 to 2001, Kavanaugh served as the co-chair of the Federalist Society’s School Choice Subcommittee, in the Religious Liberties Practice Group.
  • Even lawyers who go on to be federal judges can have problems with their bar memberships: Kavanaugh reported that his D.C. bar membership “lapsed for a brief period in 2002 when my renewal form was delivered to an incorrect home address. There have been no other lapses in membership.”
  • Kavanaugh coached basketball (it is not entirely clear, but presumably a team of sixth-grade boys) even before having children of his own, in 1996-1997.
  • Kavanaugh has delivered a lot of speeches and joined in many panel discussions, on subjects ranging from national security and the law, in remarks at Yale Law School (October 2013), to Bush administration policies, in a meeting with gay and lesbian Republicans (May 2003). His appearances have ranged from participation in numerous Shakespeare Theatre Company mock trials to speaking at a father-daughter mass and brunch at Georgetown Visitation, a Catholic girls’ high school in Washington (December 2016).
  • Asked to list the 10 most important cases in which he has participated, Kavanaugh selected as the first nine cases in which the Supreme Court adopted the position he had outlined in his opinion. Kavanaugh explained that he included the 10th case, that of a former Fannie Mae employee who represented himself in an employment-discrimination case, “because of what it says about anti-discrimination law and American history.” Kavanaugh indicated that he both joined the majority’s opinion ruling for the employee and “also wrote a separate concurrence to explain that calling someone the n-word, even once, creates a hostile work environment.” “No other word in the English language,” Kavanaugh wrote in his concurrence, “so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.”
  • The Supreme Court reversed Kavanaugh only once, in a challenge to an Environmental Protection Agency rule that required some states to reduce their emissions. Kavanaugh noted that he had written an opinion that ruled for the challengers, on the ground that the rule exceeded the EPA’s authority under the Clean Air Act. By a vote of 6-2, the Supreme Court reversed – but, Kavanaugh emphasized, the court nonetheless “agreed with my opinion that the EPA rule violates the statute when it ‘requires an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked.’”
  • Once Kennedy announced his retirement on Wednesday, June 27, the process of nominating his successor quickly kicked into gear. Kavanaugh reported that White House counsel Don McGahn called him just a few hours after the announcement, and that Kavanaugh met with McGahn two days later. Kavanaugh interviewed with Trump on Monday, July 2, and with Vice President Mike Pence on Wednesday, July 4. Kavanaugh spoke again with Trump, this time by phone, on the morning of Sunday, July 8; that night, Trump offered Kavanaugh the nomination during a meeting at the White House.

This post was originally published at Howe on the Court.

The post Kavanaugh returns questionnaire appeared first on SCOTUSblog.

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