Scribble

Scribble

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

Live blog of nomination | July 9, 2018 (with First Mondays)

Live blog of nomination | July 9, 2018 (with First Mondays)

We live-blogged with First Mondays as President Donald Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court.

We live-blogged with First Mondays as President Donald Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court.

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Conference of May 23, 2019

3rd & 7 37yd

Great SCOTUSblog coverage of the potential nominees (Amy and Edith) - thanks a lot!

by andrew 7/10/2018 12:35:40 AM
Does Merrick Garland’s failure to receive a confirmation vote qualify as a constitutional crisis? It’s really difficult for me to imagine how the founding fathers would have allowed such a miscarriage of justice for such a qualified potential Justice.

by Eli Alman 7/10/2018 12:36:55 AM
From a liberal's perspective, Kennedy was a huge disappointment: Citizens United, McCutcheon, Shelby County, Heller, Twombly, Iqbal, Frederichs/Janus, Epic, Bush v. Gore... Yes, he was good on gay rights and on scaling back the applicability of the death penalty and life-without-parole sentences, but precious little else. Can this new nominee be any worse?

by Erik 7/10/2018 12:37:17 AM
Assuming it's Kavanaugh, would it be accurate to view Amy Barrett as the next "better" on deck?

by Miami John 7/10/2018 12:38:16 AM
Anybody else here going to be thrilled with any of these potential picks orrr is that just me?

by Sam Z 7/10/2018 12:39:16 AM
Kavanaugh would likely have to be recused from some very important cases: To wit, constitutional challenges to the CFPB, Hagan v. Garza, the Clean Power Plan repeal. I wonder if that is a big factor.

by JRC 7/10/2018 12:39:47 AM
Has anyone else seen the "advertisement" the White House has uploaded to Facebook?

by Just Wondering 7/10/2018 12:40:53 AM
We can expand that more. 6 of 9 justices were nominated by Presidents who didn’t earn 50% of the popular vote.

by Greg 7/10/2018 12:42:16 AM
I am extremely nervous about this since Masterpiece seemed to be a last ditched effort keep the peace when it came to balancing religious liberty and anti-discrimination laws. but with the new justice I'm deeply concerned that absent a federal ENDA Law I won't be protected

by Matthew 7/10/2018 12:43:06 AM
Hello, everyone! Only 18 minutes until the news conference? ceremony? announcement? starts. I'm not really sure what to call it.

by Amy Howe 7/10/2018 12:43:55 AM
By the way, if you haven't already, be sure to check out Art Lien's amazing banner on the blog right now.

by Amy Howe 7/10/2018 12:44:13 AM
Were SCOTUS nominees announced in prime time before the Age of Trump?

by cwgivens21 7/10/2018 12:45:49 AM
Has anyone seen the cases that are queued up argument for OT2018 in which Kavanaugh et al were on the panel?

by DCWatch 7/10/2018 12:46:18 AM
yeah, I feel like this is the Bachelorette SCOTUS edition.....

by Matthew 7/10/2018 12:47:13 AM
Whoever the nominee is they will undoubtedly be more conservative than Kennedy, my vote was worth it, despite all this President's shortcomings my vote for him was worth it and who knows what else the future holds for the Court during his term(s?)

by Jerrett 7/10/2018 12:47:19 AM
Can I voice my displeasure with the "4/9 Justices will have been appointed by Presidents who lost the popular vote" statistic? Both of Bush's successful nominees were chosen in his second term (2005 and 2006), after he quite definitely won the popular vote in the 2004 election. Trump is the first popular vote loser to make an appointment to the Court since Benjamin Harrison. The real number is only going to be 2/9 if Trump can make a second successful nomination.

by Vosmyorka 7/10/2018 12:48:04 AM
So Leah, would a challenge to the Clean Power Plan repeal be a new case for recusal purposes? I suppose it would.

by JRC 7/10/2018 12:48:11 AM
Are theories of constitutional interpretation, like "originalism" and "pragmatism," ideas or terms that seasoned lawyers and jurists take seriously and use? Do they use those labels for themselves? Or are these more like popular culture / political terms?

by Miami John 7/10/2018 12:48:54 AM
Surprise, the pick is Obama.

by JM 7/10/2018 12:50:12 AM
Where do you think Kavanaugh will ultimately fall on the Court's composition if confirmed? To the right of Roberts? To the right of Alito?

by JSB 7/10/2018 12:51:13 AM
Who is the last person to turn down a SCOTUS nomination?

by cwgivens21 7/10/2018 12:51:56 AM
Pete Williams is reporting on TV right now that it is Kavanaugh, FWIW.

by Amy Howe 7/10/2018 12:52:51 AM
Kavanaugh dissented in Lorenzo v. SEC (17-1077).

by EEB 7/10/2018 12:53:06 AM
For any new readers, here's our profile again on Kavanaugh (by Edith Roberts):

Potential nominee profile: Brett Kavanaugh - SCOTUSblog
SCOTUSblogWhen then-candidate Donald Trump released his first two lists of potential Supreme Court nominees in May and September of 2016, the omission of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit drew comment. Kavanaugh had served for 10 years on a bench known as

by Andrew Hamm 7/10/2018 12:53:46 AM
If Kavanaugh is in - was there ever a situation with two justices that clerked for the same justice at the same term (if I’m not wrong)?

by ZS 7/10/2018 12:53:47 AM
John Roberts of Fox News just said he and Shannon Bream were given strong
indication that it BK

by Joe Rigney 7/10/2018 12:55:22 AM
Will BK be an avid questioner at oral argument? What's his writing style like?

by Just Wondering 7/10/2018 12:56:06 AM
Well, that's exactly why my tidbit includes the qualification "for their first term in office." We can disagree over the advantage an incumbent might have in a subsequent election, though, and I'm sorry my statistic displeased people.

by Luke 7/10/2018 12:56:43 AM
Do you think that future presidential candidates will publish lists like the one Trump has selected his first two picks from?

by KPOM 7/10/2018 12:57:07 AM
The million documents we'll be seeking in Kavanaugh FOIA lawsuits will make the 175,000 we got in the Gorsuch FOIA lawsuit seem small by comparison. Can't wait.

by Gabe Roth 7/10/2018 12:58:02 AM
Recall that CJ John Roberts was with John Calipari before a UK basketball game when Gorsuch was announced

by cwgivens21 7/10/2018 12:58:13 AM
KPOM, some will and some won't. Trump needed to for a very particular reason that may not come up for other Presidential nominees.

by PTC 7/10/2018 12:59:03 AM
Kavanaugh seems like the most probable choice to me based only on the facts that this President both cannot get out of his own way and loves drama. Kavanaugh's confirmation process will be much more complicated given his past political experience.

by I really don't care. Do u? 7/10/2018 12:59:33 AM
Don McGahn's got a pretty good seat at the press conference. Nice day for him, as BK had been his choice from the start.

by Ian Samuel 7/10/2018 1:00:09 AM
One minute to go . . . .

by Amy Howe 7/10/2018 1:00:23 AM
What is kavanaugh’s political experience people are concerned about?

by Brian 7/10/2018 1:00:39 AM
Here comes Melania Trump, and everyone just stood up, which suggests Trump is on his way.

by Amy Howe 7/10/2018 1:01:10 AM
Never mind. Everyone just sat down. Maybe they stood up for Melania Trump.

by Amy Howe 7/10/2018 1:01:53 AM
How many on the LiveBlog right now?

by dystopianhero 7/10/2018 1:01:59 AM
I wouldn’t want to be anywhere but here with you all....

by Kim 7/10/2018 1:02:02 AM
Everyone just stood up again and is clapping. It is Trump, no sign of nominee yet.

by Amy Howe 7/10/2018 1:02:24 AM
Kavanaugh's parents spotted in the room . . .

by I really don't care. Do u? 7/10/2018 1:02:33 AM
Trump entering and about to, in the words of the Bachelorette, do the dang thing.

by Ian Samuel 7/10/2018 1:02:36 AM
Says this is one of his most profound responsibilities.

by Amy Howe 7/10/2018 1:02:56 AM
Praising Anthony Kennedy.

by Amy Howe 7/10/2018 1:03:39 AM

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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This Week at the Court
The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
More Petitions »
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Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
Sigma Delta Chi
Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
National Press Club Award
Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
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Awarded the American Gavel Award for Distinguished Reporting About the Judiciary to recognize the highest standards of reporting about courts and the justice system.
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Awarded the Webby Award for excellence on the internet.

Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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