Live blog of orders | June 28, 2018
We live-blogged to discuss Justice Anthony Kennedy’s retirement and the Supreme Court’s orders from its final conference of the term. Former Kennedy clerks Jeffrey Pojanowski and Michael Dorf joined us. The justices added seven new cases to their merits docket for next term: Herrera v. Wyoming, Fourth Estate Public Benefit Corp. v. Wall-Street.com, Gamble v. United States, Nieves v. Bartlett, Franchise Tax Board of California v. Hyatt, Obduskey v. McCarthy & Holthus LLP and Merck Sharp & Dohme Corp. v. Albrecht.
3rd & 7 37yd
3rd & 7 37yd
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So, here are a couple of observations from the courtroom yesterday, some of which I included in yesterday's "view". The main one is that when Justice Kennedy's wife, Mary, arrived at about 9:55 am, with what appeared to be three grandchildren in the VIP box and other family members nearby, my outlook on the justice's retirement changed.
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I was of the school that if AMK was going to retire, he would have announced it in April or May, as four of the last five justices to retire have done. Kennedy joined the court in midterm, after the Robert Bork and Douglas Ginsburg matters. He has to know that retiring at the end of the term makes it at least somewhat dicier to have a replacement confirmed by the First Monday in October.
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It seemed like Amy's post on AMK was very thorough and promptly written - so thorough that it was probably mostly pre-written. I know obituaries are pre-written, but are these retirement pieces pre-written also as a matter of practice. E.g., if Sotomayor decided to hang it up today, is there a retirement article draft kicking around somewhere?
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It was definitely smart for Supreme Court reporters to have a Kennedy retirement story in the can. I had one for Education Week focusing on Kennedy and education issues, naturally. Here is the published product:
Justice Kennedy Retiring From High Court, Had Deep Imprint in Education Arena
Education WeekA highly influential moderate-conservative at the center of the U.S. Supreme Court for three decades, Justice Anthony M. Kennedy wrote major opinions on race, religion, and other areas of public education. -
Here's a thought about how quickly the Court is likely to move to change the law in areas where Justice Kennedy was to the left of CJ Roberts: Given the Chief Justice's concerns for the integrity and perceived integrity as a somewhat non-political institution, I would expect him to want to go somewhat slowly. However, he will not necessarily control the Court's agenda. The Rule of 4 will allow the four justices to his right (Thomas, Alito, Gorsuch, and whoever the new justice is) to grant cert in abortion, LGBT rights, affirmative action, death penalty, and other cases in short order. I think Roberts might have some ability to slow Alito down if Roberts really wants to, but I doubt he can slow the others.
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Is there any prediction on how Kennedy's retirement will affect summer cert. petitions? Considering he is a cert. pool member, I would think it would have little effect. But I imagine that it is at least possible that a new Justice would be confirmed before the long conference and would need to address pending petitions.
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It will be interesting to see the Democrats squirm if Amul Thapar is nominated. While Republicans don't care about race, only judicial philosophy, the Democrats claim to care about race a lot and can be expected to display considerable discomfort in opposing the first South Asian justice...
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So if Janus held that my money cannot be used by an organization if I don't agree with their views/don't believe in what they stand for, does that mean I don't have to pay taxes if that money goes towards things that I do not like, like increased military budgets? Asking for a friend :)
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I'm wondering what to make of Justice Kagan's dissent in the Wisconsin gerrymandering case. It was pitched to specifically to Justice Kennedy. Do you think she wrote it thinking he would remain on the bench? How closely guarded is news of retirement between the justices? Thanks for any insights!
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Conspiracy theory--Trump nominates someone controversial enough that Murkowski and Collins have to vote with 49 Democrats. Senate rejects nomination. GOP takes it to the stump and increases their Senate majority. Mitch McConnell has more breathing room to pick someone he couldn't have with only 50 votes to work with.