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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

During his campaign for the presidency, then-candidate Donald Trump announced that he would appoint justices to the Supreme Court who would overturn Roe v. Wade, the 1973 case establishing a woman’s right to terminate her pregnancy. Other presidents have made similar promises before, but they have not always come to pass. For example, in 1981 President Ronald Reagan nominated Sandra Day O’Connor, who would later vote to reaffirm the core holding of Roe. One of the justices who joined O’Connor in upholding Roe that year was another Reagan appointee, Justice Anthony Kennedy, who announced his retirement earlier this summer. Kennedy’s pivotal role in the Supreme Court’s abortion cases has prompted intense scrutiny of the views of Judge Brett Kavanaugh, whom Trump nominated to succeed Kennedy. Although there is no way to know whether Kavanaugh would vote to reverse Roe, there are at least a few signs, in a recent lecture and his dissent in a case involving access to abortion, suggesting that Kavanaugh might be more receptive to laws and policies restricting abortion than Kennedy was.

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Michael Livermore is professor of law at University of Virginia School of Law.

As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. These instincts will likely place him to the right of Chief Justice John Roberts in environmental cases, shifting Roberts to the center of the court. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections. This new alignment may have particularly profound effects in the coming years in litigation involving greenhouse gas emissions and federal jurisdiction over water pollution.

When the Supreme Court decides environmental cases, its primary role is in defining the scope of agency authority under one of the major environmental statutes (such as the Clean Water Act) or passing on the legality of an agency action. Because of the specificity of many environmental cases — interpreting the language in one provision of a long and complex statute or examining the administrative record that supports a particular agency decision — the doctrines that arise in environmental cases are typically fairly contained. Where they have more general applicability, it is often because they are intertwined with other questions, such as administrative law issues.

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On July 19 from 2 p.m. to 3 p.m. in Washington, the Humanist Legal Society will host a panel entitled, “The Supreme Court after Kennedy: What’s Next for LGBT and Women’s Rights?” Speakers include Shannon Minter, Maya Rupert and David Codell. More information, including registration instructions, is available here.

 
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Wednesday round-up

By on Jul 18, 2018 at 6:58 am

Judge Brett Kavanaugh’s nomination continues to dominate court-watchers’ attention. At Politico, Lorraine Woellert reports that “[m]ore Americans oppose the confirmation of Judge Brett Kavanaugh to the Supreme Court than that of any other nominee in recent history, according to a poll from the nonpartisan Pew Research Center.” Kevin Daley reports for The Daily Caller that “[a] left-leaning advocacy group, which plans to spend millions opposing … Kavanaugh’s nomination …, has obscured its funding sources through an opaque organizational structure.” For NBC News, Alex Seitz-Wald reports that Kavanaugh’s “confirmation process …  could answer a question first raised more than a decade ago about whether the judge once misled Congress, as two senators then alleged.”

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On July 24 at 1 p.m. EST, the National Association of Counties will host a webinar reviewing the past Supreme Court term. Speakers include Eric Citron, Shay Dvoretzky and Lydia Wheeler. To register for the webinar go here.

 
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On July 19 from 6 p.m. to 8 p.m. in Washington, D.C., the American Society on International Law will host a panel entitled, “U.S. Supreme Court ‘International Law’ Year in Review.” Panelists include John B. Bellinger III, Harold Hongju Koh, Donald Earl Childress III and Jessica Ellsworth; the panel will be moderated by Charles Kotuby and Jennifer Permesly. More information, including instructions on how to register, is available here.

 
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Tuesday round-up

By on Jul 17, 2018 at 7:01 am

At The Hill, Lydia Wheeler reports that “[a] group working to make the Supreme Court more transparent has asked a federal judge to force the government to release tens of thousands of documents related to [Supreme Court nominee Judge Brett Kavanaugh’s] past work.” Additional coverage comes from Tony Mauro at The National Law Journal (subscription or registration required), who reports that “Fix the Court, aided by American Oversight, sought injunctions against the National Archives and Records Administration and the Department of Justice,” arguing that “the agencies’ failure to respond adequately to previous Freedom of Information Act requests will deprive the public of ‘information essential to ensure that Judge Kavanaugh’s appointment receives rigorous, informed debate.’”

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Petitions of the week

By on Jul 16, 2018 at 5:30 pm

This week, the Supreme Court has been presented with petitions involving issues such as whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross; and whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students. Continue reading »

Good writing makes a world of difference in appellate practice.  In an era when some scholars question whether oral arguments have very much utility, briefs, and especially amicus briefs, are thought to play a unique role in Supreme Court decision-making.  The court receives briefs in large numbers, with amicus briefs leading the way.  Cases with broad national repercussions may garner 100 amicus briefs or more (one example of a case with over 100 such briefs is Obergefell v. Hodges).  With so many filings, the justices tend not to read each brief and may instead delegate the bulk of this task to their clerks.

Groups filing amicus briefs have several ways to capture the attention of clerks and justices. Certain groups with already established credibility like the Office of the Solicitor General are known to have an impact on the court’s opinions through their amicus briefs.  Others that lack this institutional standing must seek out alternative means to persuade justices and clerks to read their writings.

Studies suggest that aspects of brief-writing can positively affect the evaluation of briefs.  Even though there are several off-the-shelf metrics for writing quality, few if any have been successfully employed by a large number of legal writers. Continue reading »

 
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October Term 2017 has been officially gaveled out, and the justices are all doing exciting things like “teaching” in Europe. But we’re not taking the summer off. Instead, we’re here to give you 2018’s first installment of our summer series, “In Recess.” In this episode, we start to chip away at our huge backlog of hotline calls, and talk through some interesting religious liberty cases the Supreme Court has on its docket—while also providing a brief update about just how much Supreme Court nominee Judge Brett Kavanaugh loves baseball.

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