Major California Case At SCOTUS Next Week | The Real Question On Kavanaugh’s Background Check
March 18, 2021
NIGHTMARE ON FIRST STREET
|“Forgive progressives who aren’t looking forward to the sequel of their personal ‘Nightmare on First Street,’ a Supreme Court succession story. The original followed JUSTICE RUTH BADER GINSBURG’S decision to forgo retirement from the high court, located on First Street in Washington, when Democrats controlled the White House and the Senate during six years of Barack Obama’s presidency, until 2015.” We all know how that ended: with PRESIDENT TRUMP replacing a “liberal icon” with JUSTICE AMY CONEY BARRETT. Mark Sherman with the Associated Press reports on liberals hoping JUSTICE STEPHEN BREYER avoids another nightmarish outcome and steps down sooner rather than later.
THIS LAND IS YOUR LAND, THIS LAND IS MY LAND
|David Savage with the Los Angeles Times previews a case before the Supreme Court next week which involves a challenge to California allowing union organizers access to farms and processing stations so they can meet with workers. Lawyers for two California growers say the rule is a “government-authorized physical invasion of private property.” Savage writes, “California officials say the ‘access’ rule is a temporary regulation of private property, not a taking of the grower’s land. And they argue the state rule is similar to laws that allow meat and poultry inspectors to go into packing plants or health and safety inspectors to visit warehouses, manufacturing plants or construction sites.”
ALL ROADS LEAD TO
|Asha Rangappa argues in CNN that although SHELDON WHITEHOUSE is right to want to dig deeper into the FBI’s handling of its investigation into BRETT KAVANAUGH, the senator may be aiming at the wrong target. She explains that ultimately it was the White House that was responsible for the scope and substance of the FBI’s probe into the then-Supreme Court nominee and allegations of sexual assault and misconduct that were waged against him. And importantly, she notes background checks for political appointees are run out of the FBI’s administrative — not criminal — division. “Had the FBI been conducted a criminal investigation, it would have left no stone unturned in getting to the truth. The FBI would have been free to obtain and follow leads through a tip line — as it has in its investigation of the Capitol insurrection — and could decide not only whom to interview, but also compel them to talk using judicial processes. But in an administrative background check, particularly one done on behalf of the White House, the FBI’s hands are tied. Sen. Whitehouse should follow the paper trail, though he may find that it leads not to the FBI, but to the former president, DONALD TRUMP.”
FLIP FLOP FLIP FLOP
|Kimberly Strawbridge Robinson with Bloomberg Law notes the Biden administration is on track to reverse the government’s position in more cases before the Supreme Court than the Justice Department did under Trump in his first term. She reports, “In just under two months, Biden has flipped positions to defend the Affordable Care Act, side with union organizers in a takings case, reject a test put forth by the Trump administration in a voting rights dispute, support a California donor-disclosure law, and argue for a sentence reduction in a case on the new First Step Act. Changes in the federal government’s positions had been relatively rare prior to Trump, as they can undercut the credibility of the federal government’s top lawyer at the Supreme Court—the U.S. solicitor general.”
SCOTUS VIEWS
The Supreme Court Has Unfinished School-Choice Business
The Wall Street Journal“The Supreme Court went a long way toward protecting the right of parents to direct the education of their children in Espinoza v. Montana Department of Revenue (2020). But the court’s opinion left a critical constitutional question unresolved. As a result, students are still being denied the opportunity to attend the schools that will best meet their needs. Fortunately, the justices have a chance to finish the job.”
Juries Are Supposed To Be Unanimous. But I Was Convicted Under An Unconstitutional Law.
USA Today“I was at home in Oregon in April 2020, four years after being released from a 12 year and 8 month prison sentence, when I learned that the United Supreme Court had decided that the method of my conviction was unconstitutional. Not only that, it was based on a law rooted in racism. In 2004, I was convicted of criminal charges and sentenced even though two of my jurors didn’t think I was guilty. If my trial had happened in any other state other than Oregon or Louisiana, I would not have been convicted at all.“
How The Supreme Court Limits Our National Debate — And Action — On Gun Violence
The Washington Post“Because this is America, not only do we tend not to think about our gun laws between mass shootings, but we never have to wait long between mass shootings to think about gun laws again. Which is why one might say a new report from the progressive group Take Back the Court is predictably timely. It comes after a young man in Georgia allegedly decided that massage parlors were a ‘temptation’ for him — and so he would gun down eight people. The report, titled ‘The Supreme Court Plays a Key Role in Enabling Gun Violence,’ argues that while only occasionally do cases involving gun laws come before the court, the conservative majority’s hostility to gun regulations — both in the past and likely in the future — plays a key role in shaping the decision-making of legislators and activists. This results in a constrained debate, weaker laws, and ultimately more shootings and killings.”
OTHER NEWS
‘A Complete Mess’: After Standing Dominated Trump Legal Fights, Lawyers Call For Fresh Look At Doctrine
The National Law Journal“Douglas Letter said that when he was arguing a case before the U.S. Court of Appeals for the D.C. Circuit while at the Justice Department, he and other government attorneys had prepared arguments on a lack of standing but pocketed them over concerns the claims weren’t strong enough. The argument likely wouldn’t have been raised at all, if it weren’t for one member of the court: then-Judge Ruth Bader Ginsburg, who asked Letter’s opposing counsel how they had standing in the case. The attorney’s mouth dropped, Letter recalled. ‘Even the government isn’t arguing there’s no standing here!’ the lawyer said.”
U.S. Antitrust Officials Unlikely To File Supreme Court Appeal In Qualcomm Case
The Wall Street Journal“Federal antitrust officials are unlikely to mount a Supreme Court appeal seeking to revive their case alleging leading chip maker Qualcomm Inc. engaged in illegal monopolization, according to people familiar with the matter. The Federal Trade Commission sued Qualcomm during the final days of the Obama administration in 2017, alleging the company used unlawful tactics to maintain a monopoly on cellphone chips. It won a sweeping ruling from a trial court in 2019 that ordered Qualcomm to change its business practices.”