Posted on 09/22/2018 8:15:41 PM PDT by TakeChargeBob
With the apparent timeframe of a Ford testimony on Thursday September 28, (which I believe won’t happen), a delay in the Kavanaugh confirmation is likely to spill over into the Supreme Court term. I still recommend that a Monday Committee vote occur to allow a full Senate confirmation at the end of the week so Kavanaugh can start at the beginning of the term. In anticipation of a delay, I wanted to offer a fresh perspective on the impact of a Kavanaugh delay on upcoming Supreme Court cases. I read that Kavanaugh would have to recuse on cases where he was not yet confirmed for which an oral argument had occurred, I was curious as to whether there is a specific critical target case on the Supreme Court docket for which a delay would result in a 4-4 deadlock thereby upholding the Appeals Court ruling. For those that had this same curiosity, I wanted to share my findings. There are some undesirable and important quite important outcomes, however, I do not see any truly monumental cases where a delay strategy is focused on any particular case. I will let the reader make their own conclusions as to the impact. I will list the initial cases where I speculate that there will be a 4-4 split.
Monday Oct 3:
Weyerhaeuser Co. v. Fish and Wildlife Service - In 2010, the U.S. Fish and Wildlife Service (FWS) included a privately-owned parcel of land (“Unit 1”) in Louisiana in an expanded designation of critical habitat for the dusky gopher frog. Though these endangered frogs had not inhabited Unit 1 for decades, the land contained historic breeding sites.
Questions - (1) Does the Endangered Species Act prohibit designation of privately-owned land as unoccupied critical habitat that is neither habitat nor essential to species conservation? (2) Is an agency determination not to exclude an area from critical habitat due to the economic impact of designation subject to judicial review?
The 5th circuit upheld the FWS. (2 Obama and 1 Carter judge affirmed. 1 Bush judge – Priscilla Owen dissented). This is the 1st case of the term. This is the most undesirable consequence of a short delay where absence of Kavanaugh will uphold the 5th circuit where his presence would overturn the ruling. Mount Lemmon Fire District v. Guido – a dispute between several circuit courts vs 9th circuit court as to whether a 20 employee minimum that applies to private employers for ADEA applies to all state political subdivisions of any size (9th circuit says yes). I have no idea what it means if there is a 4-4 tie. Perhaps this is a timing situation where it would be revisited at a later date with a 9 justice court.
Tuesday Oct 4:
2 cases which the circuit courts upheld conviction of a sex offender and denied the stay of execution. The latter case (Madison v. Alabama) is more interesting but I see no adverse relevance to a Kavanaugh delay.
Wednesday Oct 5:
Knick v. Scott – This seems to be important as suggested in a March 2018 article from Beverage & Diamond law firm (which I found by googling the case name) which suggested that the court was looking to reconsider the 1985 Williamson County v Hamilton Bank decision which upholds the requirement for landowners to exhaust state courts before applying to federal courts for Takings Law and Land use. The Court seems prepared to remove a tremendous procedural and practical barrier to pursuit of takings claims against local and State governments that impose unreasonable conditions and exactions on land use projects. Land owners, developers, and facility owners will need to follow this case closely and make sure their perspectives on this vital issue are heard by the Supreme Court. Without Kavanaugh, a 4-4 ruling would allow the 3rd circuit opinion to prevail which would mean that Williamson would stand. It is interesting to read about this specific case which makes it clear that this is an undesirable outcome.
The other case on this day does not seem to be of any interest.
Thus ends the 1st week of oral arguments.
For the following week on Wednesday October 10 there is Nielsen v. Preap which is immigration related. IRLI (Immigration Reform Law Institute) filed a friend-of-the-court brief in support of the Trump administration in the U.S. Supreme Court in the administration’s appeal of a Ninth Circuit Court of Appeals ruling favoring criminal aliens and sanctuary cities. The ruling would allow criminal aliens to petition for their release if federal authorities had not assumed custody of them quickly enough. I cut off the detail as I wanted to provide a brief overview. Anyway, if Kavanaugh is not confirmed in time for this there is a bigger overall problem.
Delay the Supreme Court sessions a week
An avalanche of vanities, cats and dogs living together, mass hysteria.
Thus, the "I'm afraid to fly" excuse from somebody who just interned in Hawaii.
Thank you for doing that research. I can’t confirm this, but I read somewhere that the Supreme Court generally avoids hearing major landmark cases while they only have 8 justices — to avoid the possibility of having a 4-4 deadlock on a case with major national implications.
The court can reset the any cases that tie 4-4 for reargument. This has happened before.
I doubt it does. Kavanaugh will miss hearings and early deliberations but would still participate from the point he joins the court, ruling on any pending cases. At least that is my understanding.
Yes, refreshing that people are willing to post questions and even some research and analysis instead of links to clickbait sites.
Interesting that several of these first cases are 9th Circuit. Would be great to see Congress break up the 9th Circuit this fall. Long overdue.
The pubbies always seem to walk into dimocrat traps
Also, the SC has ordered new oral arguments in cases where they believe they need the 9th judge to be part of the decision. They can do this on any of the cases already heard before he was seated.
Good to know. Thank you!
I saw a comment about the possibility of Kavanaugh missing the Long Session. I have no idea what that means but I think the salient point is impacts from specific cases. I think that Posts 6 and 11 suggests that a 4-4 decision might suggest there could be further actions involving taken to include the 9th justice before a final decision is rendered.
Great analysis; thanks for posting.
It should be broken up even from a size standpoint ... too much area in the jurisdiction.
By tradition, newly joined Justices do not vote on cases that have already conducted oral arguments.
What do you know about the case Cook v. Harding, that is up for consideration by the Supreme Court in its next session?
The case originated in California, and deals with parental rights in surrogacy cases.
Hmmm, sounds like a lot of biotech companies in Silicon Valley might be interested in whether the SC hears the case or not.
As I understand it, that decision will be made next week but the SC, prior to the beginning of their next session on October 1st.
Don’t know about it. I am a retired actuary and not a lawyer. (This comment reminds me of a quote from Bones in a Star Trek book - I am a doctor, not an actuary.) My post was a layman’s point of view. I was curious and skimmed through the proceedings of the Cook v. Harding. It is an interesting situation in that a woman agreed to a surrogacy and is pregnant with triplets. The father evidently is in financial hardship and wants the pregnancy terminated. The woman doesn’t want to do so and wants to take care of the babies. There is a lot of discussion on the technicality of the surrogacy law. Gov Brown among some other California government officials in the medical field were respondents to Ms. Cook’s petition to the Supreme Court.
I think that you need 4 justices to grant certiorari - so in the context of the 4-4 court, it might not matter. The current position is a ruling of the 9th circus. My presumption that there would be a 4-4 split on this.
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