UPDATE: On Friday, October 19, Chief Justice John Roberts put discovery and the trial on hold until the plaintiffs respond to the government’s request and the justices can rule on that request. The plaintiffs’ response is due on Wednesday, October 24, at 3 p.m.

In July, the Supreme Court declined to intervene 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 justices rejected the federal government’s request to block discovery and a trial until the U.S. Court of Appeals for the 9th Circuit could rule on the government’s petition seeking to have the case dismissed or, at a minimum, to block discovery and the trial temporarily. Today the Trump administration returned to the Supreme Court, asking it once again to put discovery and the trial – now scheduled for the end of October – on hold.

The case was originally filed in 2015 against the Obama administration. The plaintiffs argue that the federal government’s actions are causing a “dangerous climate system,” and they have asked a federal district court in Oregon to order various federal agencies to prepare and implement a remedial plan to phase out fossil-fuel emissions.

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On Wednesday night, the Supreme Court Historical Society hosted a lecture by Professor Matthew Waxman on Charles Evans Hughes’ evolving thoughts on the flexibility of constitutional restrictions on government during wartime and peacetime. As is typical of these events, a sitting justice introduced the lecturer. This time it was Justice Neil Gorsuch, the first time he has spoken at a historical society event. Generally, the justices speak briefly. They usually thank the society for hosting the lecture, praise the speaker for her work and perhaps crack a memorable joke. But Gorsuch used his time to deliver an impassioned defense of the judiciary and civility, while criticizing the American public’s ignorance of the structure of our government.

Gorsuch said he has been astonished to learn that “a lot of people in America just don’t understand the role of an independent judge. They don’t know the difference between judges and politicians. They assume judges make campaign promises, and should… And that judges are just politicians in robes.” He ascribed these feelings to a general lack of civic knowledge among the general public. He cited an Annenberg study showing that one third of Americans cannot name any branch of government. Gorsuch pointed to another study and said, “Almost nobody knows that James Madison wrote the Constitution, they all think it was Thomas Jefferson … and he was in France!” The justice noted that even law clerks who come to his office fail to recognize a portrait of Madison hanging above a fireplace.

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SCOTUS Map: October 2018

By on Oct 19, 2018 at 3:55 pm

The Supreme Court justices strove to calm the frayed nerves of a nation in the aftermath of the Justice Brett Kavanaugh’s tumultuous confirmation fight, attempting to restore a narrative about a nonpartisan and independent court that had been damaged with each twist of the hearings.

Justices Sonia Sotomayor and Elena Kagan, making a joint appearance at a Princeton alumnae conference on October 5, spoke at length on the court’s role as a neutral arbiter in an era of intense partisanship. “Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures in this country right now,” Kagan stated. “It’s an incredibly important thing for the court to guard—this reputation of being fair, of being impartial, of being neutral, and not simply an extension of the terribly political process and environment that we live in.”

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Court issues new circuit assignments

By on Oct 19, 2018 at 2:21 pm

Thirteen days after Brett Kavanaugh was confirmed as the Supreme Court’s newest associate justice, the court today issued a new set of circuit justice assignments, which take effect immediately. The new list was the second one in the past few months, replacing the assignment list issued after Justice Anthony Kennedy retired on July 31, leaving the court with only eight justices.

A circuit justice is primarily responsible for emergency requests (for example, an application to block an execution or allow it to go forward) from the geographic area covered by his or her circuit, as well as more mundane matters – for example, a request to extend the time to file a petition for review. However, justices can and often do refer significant emergency requests to the full court, as Justice Neil Gorsuch did earlier this month with a request by Native Americans in North Dakota to block the state from enforcing a law requiring voters to show an ID that includes a residential street address.

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Friday round-up

By on Oct 19, 2018 at 7:11 am

Yesterday the federal government asked the justices to halt discovery and an upcoming trial in a lawsuit filed by a group of teenagers who allege that the government’s environmental policies are contributing to climate change. Amy Howe covers the filing for this blog, in a post that first appeared at Howe on the Court. Additional coverage comes from Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, and Lyle Denniston at his eponymous blog, who reports that “[t]he federal lawyers argued that the mere existence of the lawsuit violates a host of federal laws and undermines the Constitution’s doctrine of separating powers between the branches of the federal government, with the judiciary taking over from the politically elected branches.”

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The following is a series of questions posed by Ronald Collins to Kimberley Fletcher on the occasion of the publication of her book “The Collision of Political and Legal Time: Foreign Affairs and the Supreme Court’s Transformation of Executive Authority” (Temple University Press, 2018, 296 pp., cloth: $99.50, paper: $39.95).

Kimberley Fletcher is an assistant professor of political science at San Diego State University.

Welcome, Kimberley, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

* * *

Question: Can you explain why you selected the title you did?

Fletcher: Thanks to you and SCOTUSblog for this wonderful opportunity to talk about my new book, and for your insightful questions.

I wanted a title that clearly reflected how I understand the growth of executive power and authority in foreign policy-making over developmental time. Many attribute the growth of presidential powers in this area to an aggrandizement of authority by the executive, the acquiescence of Congress and the state’s capacity to act under exigent circumstances. And the role of the courts has simply been to sanction this accumulation of power. However, this perspective overlooks the Supreme Court’s institutional positioning to redefine the scope and breadth of presidential powers vis-à-vis Congress. As political questions are transformed into legal disputes, the court can give meaning to values that have profound political consequences (including regime-building). Courts are therefore primed to institute change.

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Relist Watch

By on Oct 18, 2018 at 10:04 am

John Elwood (barely) reviews Monday’s likely relists.

I’m preparing for an argument, so this week’s update will be brief. There’s been a lot of movement on last week’s relists. On Friday, the Supreme Court granted review in the twice-relisted Manhattan Community Access Corporation v. Halleck17-1702, which asks whether the private operator of a public access TV channel is a “state actor” for constitutional purposes. And on Monday, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) dissented from the denial of certiorari in that big group of cases addressing the validity of criminal sentences imposed under the then-mandatory Federal Sentencing Guidelines’ residual-clause definition of “crime of violence.” Those actions knocked about 11 cases off the relist rolls.

The court’s next conference isn’t until next Friday, October 26. So the court won’t actually relist the cases on the dockets until Monday, October 22. But it looks to us like they’re likely to relist five new cases. Below, we’ve indicated the questions presented. The court has also rescheduled a few noteworthy cases, but I don’t want to say more about that for fear of mission creep.

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Thursday round-up

By on Oct 18, 2018 at 7:12 am

Court-watchers continue to consider the effect of Justice Brett Kavanaugh’s confirmation on future Supreme Court decisions and on the court as an institution. At CNN, Joan Biskupic writes that although “[i]n the wake of the divisive Brett Kavanaugh hearings, Chief Justice John Roberts on Tuesday tried to assure the public that the US Supreme Court serves the whole country, not one political party over another, and that it is committed to collegiality,” “America’s highest court is deeply split along ideological and political lines, and Roberts sometimes fosters that divide.” In an episode of New York magazine Daily Intelligencer’s 2038 podcast, Dahlia Lithwick talks about what the court might look like in 20 years. Focusing on the nearer future, Daniel Hemel points out at Take Care that “Roberts Court doctrines regarding the Commerce Clause, compelled speech, commercial speech, RFRA, federalism, and agency deference don’t always tilt toward the right.” At National Review, Conrad Black maintains that “[n]ow that the dust is settling on the Kavanaugh affair, it is well to remember that much of the concern over the stance he may take as a judge could be unjustified,” and that because “[t]hese are life appointments, and judges’ views change once they are installed,” “[t]he calculation of a solid conservative majority is apt to be fragile in fact.”

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Petitions of the week

By on Oct 17, 2018 at 10:12 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the classification under the Armed Career Criminal Act of a criminal offense that requires a defendant to have acted recklessly; the constitutionality of a categorical exclusion of houses of worship from qualifying for a government historic preservation grant; and the extent to which an accommodation must eliminate a conflict between work and religious practice to be “reasonable.”

The petitions of the week are:

18-349

Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable,” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of TWA v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled.

18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

18-370

Issue: Whether a criminal offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Wednesday round-up

By on Oct 17, 2018 at 6:53 am

In a speech yesterday referring to “the contentious events in Washington of recent weeks,” Chief Justice John Roberts emphasized the independence of the Supreme Court. Andrew Hamm covers Roberts’ remarks for this blog. Additional coverage comes from Josh Gerstein at Politico, Robert Barnes for The Washington Post, Brent Kendall for The Wall Street Journal, and Ariane de Vogue at CNN, who reports that “Roberts commended recent remarks by his ‘newest colleague’ during his ceremonial swearing-in at the White House,” at which Justice Brett “Kavanaugh said he would not serve ‘one party or one interest.’”

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