Bench Memos

Just Another Day at the Court?

Today was not the stereotypical day at the Court.

Yes, the Court divided 5-4 along ideological lines in a case involving the Chamber of Commerce (Chamber of Commerce v. Whiting), but it was the liberals who sided with the Chamber. (Kagan was recused, so the vote was 5-3.)

In a majority opinion by Justice Kagan (in Camreta v. Green) that should make everyone’s head spin, the Court ruled that an appeal brought by a prevailing party satisfies Article III’s case-or-controversy requirement but that the particular case it was deciding was moot. (I’m not opining that the opinion is wrong; my head is still spinning.) On the Volokh Conspiracy, Orin Kerr observes that the “quite puzzling” ruling “signals a pretty significant shift in standing doctrine.” Among the justices supporting this expansive standing rule: the Chief Justice, Alito, and Scalia (the last of whom states in a separate concurrence that Kagan’s opinion “reasonably applies our precedents, strange though they may be”). Kennedy and Thomas dissented, and Sotomayor and Breyer would have avoided the standing issue and ruled directly on mootness. Kerr sums it up:

I suppose it’s appropriate that this ruling comes in a case ultimately decided on mootness grounds: If you’re going to say that there is standing to challenge language in a ruling ultimately decided the other way on other grounds, there is no more appropriate place to do it than through language in a ruling ultimately decided the other way on other grounds.

And then there’s Fowler v. United States, involving interpretation of a federal witness tampering statute, which generated the unusual situation of Justice Ginsburg’s joining a dissent by Justice Alito (as well as the much less unusual situation of Justice Scalia’s interpreting a criminal statute in a manner more favorable to the defendant than Justice Breyer’s majority opinion did). Addendum: Plus, a reader informs me, Fowler reversed a decision by the usually hard-Left Judge Rosemary Barkett for not interpreting a statute sufficiently favorably to a criminal defendant.


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