REASON – Free Minds & Free Markets | This, That and The Other

Gundy v. United States (2019) and Fulton v. City of Philadelphia (2020) signaled that the Court was open to changing course in two important doctrines. First, in Gundy, Justice Gorsuch's dissent, which was joined by the Chief Justice and Justice Thomas, signaled that the Court should rethink the non-delegation doctrine. Justice Alito also seemed to be on board in the appropriate case. Plus Justice Kavanaugh sent similar signals in his later opinion in Paul v. United States. Second, in Fulton, Justices Alito, Thomas, and Gorsuch were ready to overrule Employment Division v. Smith. Justice Barrett wrote a short concurrence, joined by Justice Kavanaugh. They acknowledged that Smith had problems, but worried about what test would replace it. Barrett also posed some questions, which in theory at least, would help her get to yes. Five years later, have the Gundy and Fulton moments passed? FCC v. Consumers' Research solidified the intelligible principle test, at least in the… ...[TheTopNews] Read More.

Justice Kavanaugh's concurrence in FCC v. Consumers' Research is one of his most significant separate writings. He lays out a roadmap for how he sees the separation of powers, and in particular the removal power cases. First, as I was reading Justice Kavanaugh's concurrence, I could hear the voice of a former White House lawyer. Indeed, Kavanaugh stresses how former Justices who served in the Executive Branch Court accepted the "intelligible principle" test: Notably, the intelligible principle test was accepted and applied over the years by Justice Scalia, Chief JusticeRehnquist, and Chief Justice Taft—three jurists who, based on their Executive Branch experience and judicial philosophies, deeply appreciated the risks of undue judicial interference with the operations of the Presidency. Second, Kavanaugh repeats at several points that the deferential "intelligible principle" test respects the separation of powers. How? To ensure the President has the latitude to faithfully execute the laws: To be… ...[TheTopNews] Read More.

In Employment Division v. Smith, Justice Scalia identified the concept of hybrid rights: a restriction that targets two constitutional rights would be reviewed with heightened scrutiny. For example, a ban on saying "Merry Christmas" would offend both the freedom of speech and the free exercise of religion. The hybrid rights doctrine was a useful way for Justice Scalia to distinguish the outcome in Smith with earlier free exercise clause cases that applied heightened scrutiny. Yet, this doctrine never quite caught on in the Free Exercise context. Still, the hybrid rights doctrine always made sense to me as a logical matter. Sometimes the whole is greater than the sum of the parts. Even if individual features of some policy are barely constitutional, when those features are combined, the policy becomes unconstitutional. The Court employed this reasoning in Free Enterprise Fund, in which the two layers of insulation triggered a violation of the Appointments… ...[TheTopNews] Read More.

There is an exception to the mootness doctrine, known as "Capable of repetition, yet evading review." The most prominent example of this doctrine occurs in abortion cases. A pregnancy lasts about nine months, while a challenge to an abortion restriction lasts much longer. The courts have allowed such litigation to continue, even after the pregnancy has completed. This test is hard to satisfy. It is far easier for courts to find a particular dispute is moot, especially when an appeal arises months or years later. Indeed, many courts have imposed limitations on the doctrine. For example, the D.C. Circuit and other circuits have held that a plaintiff can only invoke the doctrine if they sought a preliminary injunction, or sought a stay of an adverse ruling. For example, in Newdow v. Roberts (2010), Michael Newdow sought to prevent  Chief Justice Roberts from issuing the constitutional oath, which included the phrase… ...[TheTopNews] Read More.

I continue to make my way through the final decisions of the term. Next up is Gutierrez v. Saenz. At first blush, this is the sort of case you might skip over. Can a convicted murderer sue the District Attorney under Section 1983 to force him to test potentially exonerating DNA evidence? This dispute turns, in part, on whether the District Attorney's refusal to test the DNA deprives the defendant of life, liberty, or property, without due process of law. To be clear, the Defendant was afforded more the process he was due at the criminal trial, through the appellate process, and through collateral review. The constitutional question presented here is whether the refusal to test the DNA violates the Due Process Clause. The Fifth Circuit panel did not reach the merits. Rather, the panel found that the Defendant lacked standing to bring the Section 1983 claim. The Supreme Court, by… ...[TheTopNews] Read More.