The Corner

What Cases Is SCOTUS Going to Take This Term?

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.

Most Popular

Elections

Put Up or Shut Up on These Accusations, Hillary

Look, one 2016 candidate being prone to wild and baseless accusations is enough. Appearing on Obama campaign manager David Plouffe’s podcast, Hillary Clinton suggested that 2016 Green Party candidate Jill Stein was a “Russian asset,” that Republicans and Russians were promoting the Green Party, and ... Read More
Politics & Policy

Elizabeth Warren Is Not Honest

If you want to run for office, political consultants will hammer away at one point: Tell stories. People respond to stories. We’ve been a story-telling species since our fur-clad ancestors gathered around campfires. Don’t cite statistics. No one can remember statistics. Make it human. Make it relatable. ... Read More
National Review

Farewell

Today is my last day at National Review. It's an incredibly bittersweet moment. While I've only worked full-time since May, 2015, I've contributed posts and pieces for over fifteen years. NR was the first national platform to publish my work, and now -- thousands of posts and more than a million words later -- I ... Read More
Culture

Feminists Have Turned on Pornography

Since the sexual revolution of the 1960s, the feminist movement has sought to condemn traditional sexual ethics as repressive, misogynistic, and intolerant. As the 2010s come to a close, it might be fair to say that mainstream culture has reached the logical endpoint of this philosophy. Whereas older Americans ... Read More
Economy & Business

Andrew Yang, Snake Oil Salesman

Andrew Yang, the tech entrepreneur and gadfly, has definitely cleared the bar for a successful cause candidate. Not only has he exceeded expectations for his polling and fundraising, not only has he developed a cult following, not only has he got people talking about his signature idea, the universal basic ... Read More
White House

The Impeachment Defense That Doesn’t Work

If we’ve learned anything from the last couple of weeks, it’s that the “perfect phone call” defense of Trump and Ukraine doesn’t work. As Andy and I discussed on his podcast this week, the “perfect” defense allows the Democrats to score easy points by establishing that people in the administration ... Read More
Elections

Democrats Think They Can Win without You

A  few days ago, Ericka Anderson, an old friend of National Review, popped up in the pages of the New York Times lamenting that “the Democratic presidential field neglects abundant pools of potential Democrat converts, leaving persuadable audiences — like independents and Trump-averse, anti-abortion ... Read More
PC Culture

Defiant Dave Chappelle

When Dave Chappelle’s Netflix special Sticks & Stones came out in August, the overwhelming response from critics was that it was offensive, unacceptable garbage. Inkoo Kang of Slate declared that Chappelle’s “jokes make you wince.” Garrett Martin, in the online magazine Paste, maintained that the ... Read More