Bench Memos

This Week at the Supreme Court

The Court is continuing this term’s slower pace of work, with only four hours scheduled for argument this week.

This morning the Court will hold oral argument about the scope of the Federal Vacancies Reform Act in NLRB v. SW General, Inc., which resembles a statutory version of the constitutional question in NLRB v. Noel Canning (2014). The FVRA was passed in 1998 to prevent presidents from circumventing Senate opposition to a particular presidential nominee by hiring the nominee as a high-level assistant and then designating them the “acting” official. In this case, the president designated an acting general counsel under the FVRA but then nominated the same person for the non-acting position, something which arguably made the nominee ineligible to serve as an “acting” official. The interpretive details get somewhat technical, but there are some interesting issues floating around in the case. One is whether Congress acquiesced to a statutory interpretation set out in a 1999 OLC memo that was reversed only two years later.  Another is the extent to which “historical practice” can be helpful to statutory interpretation when the statute itself isn’t even 20 years old. 

On Tuesday the Court will hear a case about the standing requirements for cases brought under the Fair Housing Act and a case about original jurisdiction over cases brought by or against Fannie Mae. On Wednesday the Court will consider the constitutionality of differing physical-presence requirements for citizenship that apply to unwed citizen mothers of foreign-born children and those that apply to other citizen parents of foreign-born children.  

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

Most Popular

Politics & Policy

The Origins of Progressive Agony

What has transformed the Democratic party into an anguished progressive movement that incorporates the tactics of the street, embraces maenadism, reverts to Sixties carnival barking, and is radicalized by a new young socialist movement? Even party chairman Tom Perez concedes that there are “no moderate ... Read More

How Will the Senate Races Break?

How will the Senate races break? We have less public polling to go on than in recent years, so answering that question is harder than ever. But the news is more optimistic for Republicans than it was a month ago.   Waves and Breakers Four years ago, I projected in mid September that if “historical ... Read More
PC Culture

Warren Is a Fraud

Senator Elizabeth Warren (D., Mass.) has been telling a story for years. It’s a deeply romantic story about her parents and their young love, fraught with the familial bigotry of an earlier time. Here’s how she told it this week in a video she released in preparation for her 2020 run: My daddy always said he ... Read More

Two Minnesota Republican Candidates Assaulted

Two Republican candidates for state office in Minnesota have been physically assaulted in recent days, leading prominent Republican lawmakers to caution their Democratic colleagues against employing inflammatory rhetoric. Republican state representative Sarah Anderson was punched in the arm last week after ... Read More
Law & the Courts

A Christian Man Receives Justice

A good man’s legal ordeal is at an end. Yesterday, my friends and former colleagues at the Alliance Defending Freedom announced that former Atlanta fire chief Kelvin Cochran had reached a $1.2 million settlement, ending a case he brought after the city fired him for writing -- and distributing to a select few ... Read More