The distinguished panelists and moderator at Monday’s National Review/Pacific Legal Foundation Supreme Court–preview event at NR’s D.C. office seemed to have a good time, with quips about Lisa Blatt’s Cowboy boots, my PLF colleague Jim Burling’s lame fish jokes, and John Elwood’s feigned raisin-phobia. Elwood’s Simpsons and Seinfeld analogies in his case discussions weren’t half-bad either. Yet the high-level prognostications by these super-lawyers are even more worthy of attention.
You can watch the entire event, which was broadcast and archived here by C-SPAN, but a few points are worth reflecting on further. The program began with a discussion of the Court’s denial of all the pending petitions to hear the same-sex-marriage cases, with some points of agreement and disagreement. The Supreme Court experts weren’t confident that actions last Monday meant that no same-sex-marriage case will be taken this year.
The Ninth Circuit took the denials as a green light to issue an opinion yesterday striking down the gay-marriage bans in Idaho and Nevada, but Justice Anthony Kennedy’s order earlier today staying the effectiveness of the Ninth Circuit decision has now prompted further speculation.
I agree with the assessment Ed Whelan offered me that we shouldn’t read much into Kennedy’s order today; it’s probably just his way of following the regular order in similar cases. But the fact that no justice issued an opinion on why the Court denied cert in the other cases, which are often issued when a justice strongly disagrees with the denial, has caused a lot of interesting, inside-baseball speculation, including this by Professor Josh Blackman.
Jim Burling’s discussion of the major Obamacare cases, and whether the Court might take one of them generated the most questions from the audience. All panelists agreed that the conventional wisdom among Court watchers was that the Court would take at least one of them, with only Lisa Blatt expressing her mild dissent from that view. A petition asking the Supreme Court to hear one case presenting the state v. federal exchange subsidy issue, King v. Burwell, has already been filed — even though the justices might wait to act until a similar case is re-heard in the full D.C. Circuit Court of Appeals.
Burling also discussed PLF’s leading challenge to the individual mandate as a violation of the Constitution’s Origination Clause, Sissel v. HHS. Since the mandate itself is not constitutional, and the penalty is only constitutional if it is a lawful tax, PLF challenged the constitutionality of the purported tax since it originated in the Senate. A panel of the D.C. Circuit rejected that claim, but with reasoning that effectively guts the Origination Clause. Two days ago, our PLF colleagues asked the entire D.C. Circuit Court of Appeals to re-hear the case en banc, and we expect some important amicus support for our re-hearing petition to be filed in the next few days. If the D.C. Circuit re-hears the case, it is unlikely that it or a similar case in the Fifth Circuit would be heard by the justices this term. But if the D.C. Circuit does not re-hear our case, it is possible our petition for Supreme Court review will be submitted in time for the justices to act on it this term.
PLF is involved in a few of the other cases discussed on Monday: All panelists agreed the Court was likely to overturn the ruling in Texas Dept. of Housing v. Inclusive Communities Project, Inc., that wrongly held that the federal Fair Housing Act prohibits acts that have a statistically disparate impact based on race that are not intended to have such effects. And for the good of the nation, let’s hope the Court grants PLF’s own case for our farmer clients who are seeking to overturn an erroneous federal determination under the Endangered Species Act that is causing great human and economic harm in California, see Stewart & Jasper Orchards v. U.S. Fish and Wildlife Service.
— Todd Gaziano is the executive director of Pacific Legal Foundation’s Washington, DC Center and its senior fellow in constitutional law. He can be reached on Twitter @ToddGaziano.