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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I don't know if you saw Jeffery Toobin's reaction to the news that AMK offered his thoughts on a successor, but he just laughed and laughed, adding that this would purely be a polite exercise on the president's part. VP Pence's tweet about seeking a successor in the mold of Justice Scalia was Exhibit A of the administration's outlook.
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Speaking for myself, one thing I think I will miss about Justice Kennedy is his compassion. As a lawyer, I often prefer the formalism (or at least the more rule-ish approach) you see in opinions from Justices like Kagan or Scalia. But Justice Kennedy's opinions, and his judicial thinking, were motivated by really thinking about and caring about the people impacted by his decisions, nationwide. That concern didn't always lead him where it would have led me or others, but you got the sense that it was present. It moved him towards the country's own moving political center because he shared many of the concerns that moved the country's zeitgeist over the course of his decades-long tenure.
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My opinion on Justice Kennedy's retirement, I am glad he is going. By profession being a single-interest court watcher (tribal issues), Kennedy was one of the most anti-tribal voices on the Court, possibly from his time on the 9th Cir. His retirement opens the possibility of re-establishing tribal sovereignty in a meaningful way.
On other issues I care about, his retirement makes me pretty nervous. -
When I argued in the First Circuit and J. Souter was on the panel, he did not act in as the presiding judge over the session, and thus presumably was not the most senior justice. As best as the public can tell, being senior means sitting in the middle chair and letting the advocate know when he or she can start talking.
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As a practical matter I do not think Obergefell and Windsor are at much risk of being directly overruled. It's hard for me to imagine a case that would present that opportunity. I don't see any states moving to outlaw gay marriage again, nor do I see the political will for Congress to pass a new DOMA. What I can imagine is lack of movement on LGBT rights generally with respect to public accommodations, access to services, etc.
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The hot-button social issues, even if Roe and Obergefell are overturned, then become a state-by-state patchwork. Something may be legal/recognized in the State of Metro, but not in the State of Plains. In the short-term it raises a full faith and credit issue, but long-term trends (especially attitudes among Generation X and Millenials) show that these rights have a healthy future. Exhibit A is Ireland and their decisive referendums on SSM and abortion rights.
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As a hypothetical: If another gay marriage case is granted cert, which could happen without the four liberal Justice or CJ Roberts, that would force the Court to hear the issue again. In Obergefell, CJ Roberts said in his dissent, "the Constitution has nothing to do with it".
My question is, is there an historical example where a Justice on the Supreme Court has changed a view that is so staunchly stated in an opinion? Put another way, is there really a chance that Roberts would rule in favor of same-sex-marriage (based on history)? -
What I don't understand is how Justice Kennedy could look at a president like Trump—his daily lies and classlessness—and then look at his own decisions where he's been the bulwark or the pioneer, and say, "Yes, I want _this_ man to choose my successor." I have little doubt that, as a conservative, he wanted to be replaced by a Republican, but don't you think Kennedy knows that Trump will aim to undo a lot of his legacy with his next pick?
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As a skeptic that Obergefell is in any danger of being overruled, I have been trying to come up with a hypothetical set of facts that would give a party standing to challenge the legality of two consenting persons of the same sex having a valid marriage. Anybody have any ideas?
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In Kaushal v. Indiana, the case of a lawful permanent resident who pleaded guilty to molesting his stepdaughter not knowing that it would lead to his deportation, and tried to withdraw his plea shortly after, the Court grants, vacates, and sends the case back to the lower court for it to reconsider in light of a 2017 case that came down before the Indiana appellate court's ruling in this case.