Category: US Supreme Court

ObamaCare Ruled Unconstitutional (Again)

In August 2018, The Jurist’s Corner speculated that the question of the constitutionality of the Affordable Care Act 2010 (ACA or ObamaCare) might be heading towards the US Supreme Court again in 2019. On 14 December 2018, a District Court for the Northern District of Texas held, in the case of Texas v the United States No. 4:18-cv-00167-O that the ObamaCare, in its entirety, was unconstitutional. This is yet another time the ACA is ruled unconstitutional, but it is the first time since Congress passed the Tax and Jobs Act 2017 eliminating the tax/penalty for a failure to comply with the ObamaCare’s Individual Mandate (i.e. the requirement to buy a health insurance).

So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, the penalty for its breach could be read as a tax and thereby be a valid exercise of the Congress’s taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate.

However, the Tax and Jobs Act 2017 passed by Congress in 2017 eliminated this tax/penalty while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued in a Texas federal District Court again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce and that would violate National Federation of Independent Business v. Sebelius (567 U.S. 519 2012). The lawsuit went even further claiming that the Individual Mandate was inseverable from the rest of the law, or at least from its certain parts, such as the community rating. As such, the lawsuit argued that in case of finding the Individual Mandate unconstitutional, the Court should strike down the rest of the ObamaCare with it. Shortly afterwards, the Trump Administration announced that it would not to defend the lawsuit, so several Red States led by California intervened in the case submitting briefs in defence of the ACA (The Atlantic).

On 14 December 2018, the Court issued its judgment. Judge O’Connor analysed the effect of the elimination of the tax attached to the Individual Mandate by the Tax and Jobs Act 2017 and found that in the absence of any tax, the Mandate could not possibly fall within the Congress’s taxation power (pp20-27). Next, Judge O’Connor once again considered the possibility of the Individual Mandate being a valid exercise of the power to regulate inter-state commerce but rejected it on the grounds of the Majority Opinion in National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) (pp27-34). Ultimately, “the Court [found that] the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional...” (p34).

At this point, the main question became whether the Individual Mandate was severable from the rest of the ObamaCare so that the rest of the ACA could remain in force. Judge O’Connor examined the approach of the Supreme Court to the question of the severability of the Individual Mandate in both National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) and King v. Burwell, 576 U.S. ___ (2015) and summarised:

“The ACA’s text and the Supreme Court’s decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA. As Justice Ginsburg explained, “Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security.” Id. at 595 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). But it did not. “Instead of going this route, Congress enacted the ACA . . . To make its chosen approach work, however, Congress had to use . . . a requirement that most individuals obtain private health insurance coverage.” Id. (citing 26 U.S.C.§ 5000A). That requirement—the Individual Mandate—was essential to the ACA’s architecture. Congress intended it to place the Act’s myriad parts in perfect tension. Without it, Congress and the Supreme Court have stated, that architectural design fails. “Without a mandate, premiums would skyrocket. The guaranteed issue and community rating provisions, in the absence of the individual mandate, would create an unsustainable death spiral of costs, thus crippling the entire law.” BLACKMAN, supra note 3, at 147; accord NFIB, 567 U.S. at 597 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.) (noting the mandate was essential to staving off “skyrocketing insurance premium costs”). Congress simply never intended failure.” (p47)

Next, Judge O’Connor analysed the potential effect of retaining the rest of ObamaCare, in the absence of the Individual Mandate, on other major provisions of the ACA:

Even if the Court preferred to ignore the clear text of § 18091 and parse the ACA’s provisions one by one, the text- and precedent-based conclusion would only be reinforced: Upholding the ACA in the absence of the Individual Mandate would change the “effect” of the ACA “as a whole.” See Alton, 295 U.S. at 362. For example, the Individual Mandate reduces the financial risk forced upon insurance companies and their customers by the ACA’s major regulations and taxes. See 42 U.S.C. §§ 18091(2)(C), (I). If the regulations and taxes were severed from the Individual Mandate, insurance companies would face billions of dollars in ACA-imposed regulatory and tax costs without the benefit of an expanded risk pool and customer base—a choice no Congress made and one contrary to the text. See NFIB, 567 U.S. at 698 (joint dissent); 42 U.S.C. § 18091(2)(C) and (I).” (p48)

“Similarly, the ACA “reduce[d] payments by the Federal Government to hospitals by more than $200 billion over 10 years.” NFIB, 567 U.S. at 699 (joint dissent). Without the Individual Mandate (or forced Medicaid expansion), hospitals would encounter massive losses due to providing uncompensated care. See BLACKMAN, supra note 3, at 2–4 (discussing the freerider and cost-shifting problems in healthcare).” (p48)

“The story is the same with respect to the ACA’s other major provisions, too. The ACA allocates billions of dollars in subsidies to help individuals purchase a government-designed health-insurance product on exchanges established by the States (or the federal government). See, e.g., 26 U.S.C. § 36B; 42 U.S.C. § 18071. But if the Individual Mandate falls, and especially if the pre-existing-condition provisions fall, upholding the subsidies and exchanges would transform the ACA into a law that subsidizes the kinds of discriminatory products Congress sought to abolish at, presumably, the re-inflated prices it sought to suppress.” (pp48-49)

“Nor did Congress ever contemplate, never mind intend, a duty on employers, see 26 U.S.C. § 4980H, to cover the “skyrocketing insurance premium costs” of their employees that would inevitably result from removing “a key component of the ACA.” (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). And the Medicaid-expansion provisions were designed to serve and assist fulfillment of the Individual Mandate and offset reduced hospital reimbursements by aiding “low-income individuals who are simply not able to obtain insurance.” Id. at 685 (joint dissent).” (p49)

“The result is no different with respect to the ACA’s minor provisions. For example, the Intervenor Defendants assert that, “[i]n addition to protecting consumers with preexisting medical conditions, Congress also enacted the guaranteed-issue and community-rating provisions to reduce administrative costs and lower premiums.” Intervenor Defs.’ Resp. 35, ECF No. 91; see also id. at 34 (“Congress independently sought to end discriminatory underwriting practices and to lower administrative costs.”). But Congress stated explicitly that the Individual Mandate “is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.” 42 U.S.C. § 18091(2)(J) (emphasis added). At any rate, to the extent most of the minor provisions “are mere adjuncts of the” now-unconstitutional Individual Mandate and nonmandatory Medicaid expansion, “or mere aids to their effective execution,” if the Individual Mandate “be stricken down as invalid” then “the existence of the [minor provisions] becomes without object.” Williams, 278 U.S. at 243.” (pp49-50).

On that basis Judge O’Connor held:

“…Congress was explicit: The Individual Mandate is essential to the ACA, and that essentiality requires the mandate to work together with the Act’s other provisions. See 42 U.S.C. § 18091. If the “other provisions” were severed and preserved, they would no longer be working together with the mandate and therefore no longer working as Congress intended. On that basis alone, the Court must find the Individual Mandate inseverable from the ACA. To find otherwise would be to introduce an entirely new regulatory scheme never intended by Congress or signed by the President.” (pp47-48).

“In the face of overwhelming textual and Supreme Court clarity, the Court finds “it is ‘unthinkable’ and ‘impossible’ that the Congress would have created the” ACA’s delicately balanced regulatory scheme without the Individual Mandate. Alton, 295 U.S. at 362. The Individual Mandate “so affect[s] the dominant aim of the whole statute as to carry it down with” it. Id. To find otherwise would “rewrite [the ACA] and give it an effect altogether different from that sought by the measure viewed as a whole.” Alton, 295 U.S. at 362. Employing such a strained view of severance would be tantamount to “legislative work beyond the power and function of the court.” Wallace, 259 U.S. at 70.” (pp50-51)

Finally, Judge O’Connor rejected the argument that in 2017, when passing the Tax and Jobs Act 2017, Congress indicated that the Individual Mandate was severable from the rest of the ObamaCare because it did not repeal the rest of the ACA while eliminating the tax attached to the Individual Mandate (pp52-54). In conclusion, the Court held that:

“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses. The former enacted the ACA. The latter sawed off the last leg it stood on. But however one slices it, the following is clear: The 2010 Congress memorialized that it knew the Individual Mandate was the ACA keystone, see 42 U.S.C. § 18091; the Supreme Court stated repeatedly that it knew Congress knew that, see, e.g., NFIB, 567 U.S. at 547 (Roberts, C.J.) (citing 42 U.S.C. § 18091(2)(F)); King, 135 S. Ct. at 2487 (citing 42 U.S.C. § 18091(2)(I)); and knowing the Supreme Court knew what the 2010 Congress had known, the 2017 Congress did not repeal the Individual Mandate and did not repeal § 18091.” (pp54-55)

The ruling is now bound to be appealed to the Court of Appeals for the Fifth Circuit and then probably to the US Supreme Court. The appeal proceedings will likely focus on the question of the severability of the Individual Mandate from the rest of the ObamaCare. With the new judgment and the prospects of future appeals, it seems that the ObamaCare has now become the most litigated issue of our time.

The End of Chevron Doctrine on the Horizon (SCOTUS)

The Chevron Doctrine is the key element of the modern administrative state in the US. It was created by the US Supreme Court in 1984 in the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and since then, it has been a subject of many heated debates among constitutional lawyers (Take Care). Recently, there has been more and more indications that the Court might be changing its mind and considering the Doctrine to be a dead end from which it needs to gallantly retreat. The original decision was unanimous in a sense that all Justices considering the case (Justices Burger, Brennan, White, Blackmun and Powell) joined the Majority Opinion written by Justice Stevens. However the remaining 3 Justices (Justices Marshall, Rehnquist and O’Connor) took no part in the consideration of the case making it an unusual 6-0 decision. The holding of the case is rather simple and dictates that, in cases involving disputes between administrative agencies of the US Government (such as Environmental Protection Agency or Internal Revenue Service) and citizens or corporations, Federal Courts must always defer to an agency’s interpretation of an ambiguous statute which it administers, so long as the interpretation is ‘reasonable’. This simple rule of construction has automatically tipped the scales in favour of administrative agencies over ordinary citizens and corporations.

It comes as no surprise that the composition of the Court has changed completely since 1984 and out of those new 9 Justices, at least 3 have publicly disapproved of the Chevron Doctrine. Justice Thomas wrote in his Concurring Opinion in the case of Michigan v. Environmental Protection Agency, 576 U.S. (2015) that “Chevron deference raises serious separation-of-powers questions”. Similarly, Justice Gorsuch in his Opinion in the case of Gutierrez-Brizuela v. Lynch, No. 14-9585 (10th Cir. 2016) suggested that the Chevron was “a judge-made doctrine for the abdication of judicial duty” while Justice Kavanaugh described the Chevron Doctrine as ‘troubling’ (Harvard Law Review). It is not hard to see that this makes 1/3 of the current Supreme Court openly hostile to the Chevron Doctrine. The question remains whether the other Justices, especially Justice Alito and Chief Justice Roberts, share this hostility. This will only become clear once the Supreme Court come to deal with some case involving the Chevron Doctrine. A case like BNSF Railway Company v. Loos 17-1042.

On 14 May 2018, the US Supreme Court (with Justice Kennedy still on the bench) issued a writ of certiorari to the US Court of Appeals for the Eighth Circuit agreeing to hear an appeal in the case of BNSF Railway Company v. Loos 17-1042. The case raises the question of “whether a payment to a railroad employee for lost wages on account of a personal physical injury is subject to employment taxes under the Railroad Retirement Tax Act,” with the Claimant arguing YES and the Respondent arguing NO (SCOTUSBlog). While the Act itself is silent on this issue, the Internal Revenue Service (which is an administrative agency) in its 1994 regulations stipulates that ‘pay for time lost’ is taxable under the Railroad Retirement Tax Act. According to the Chevron Doctrine, given that the statute itself is silent (i.e. ambiguous), deference should be made to the interpretation put forward by the Internal Revenue Service (unless such an interpretation could be proved to be grossly unreasonable). If the Court was minded to follow the Chevron Doctrine, this would be a very simple case for the Claimant. In fact, under the Doctrine, it is surprising that the Court of Appeals for the Eighth Circuit ruled for the (now) Respondent, Mr Loos. The decision of the Court of Appeals might in itself be an indicator that lowers Courts feel that the US Supreme Court will not defend the Chevron Doctrine on appeal.

Interestingly, it is not only the lower Courts that can sense the hostility of the Supreme Court towards the Chevron Doctrine. Lisa Blatt, who appeared before the Court for the Claimant, mentioned the Chevron Doctrine only briefly at the end of her argument, even though the Doctrine clearly favours her client. Furthermore, Rachel Kovner, an assistant to the Solicitor General, who appeared as a ‘friend of the court’ in support of the Claimant, also almost completely ignored the Chevron Doctrine until the last moment before resting her case (SCOTUSBlog). The hostility of the Court transpires also from the questions that the Justices asked during the oral argument stage of the proceedings. Justices Gorsuch and Kegan seemed to be ready to recognise that the silence of the Railroad Retirement Tax Act on the issue of payments in question was not an ambiguity of the statute within the meaning of the Chevron Doctrine therefore making the Doctrine inapplicable in this case. Justice Kavanaugh was also skeptical when it comes to taking the Internal Revenue Service’s interpretation as a given and questioned the Claimant’s lawyer on the historical changes of the Railroad Retirement Tax Act that would suggest that the payment could not be construed as being subject to a tax (SCOTUSBlog).

The holding in the case of BNSF Railway Company v. Loos 17-1042, whatever it might be, may or may not overrule the Chevron Doctrine. However, the very manner in which this case was argued before the Supreme Court suggests that the Doctrine is not popular these days. It is difficult to predict its future at this point, but is seems that even if the Doctrine is no completely overturned one day, the Court might simply drastically limit its scope either by reading ambiguous states as sufficiently unambiguous, so not to bring the Doctrine into play at all, or it might regularly treat interpretations of ambiguous statutes put forward by administrative agencies as grossly unreasonably, therefore not worthy of any special deference under the Doctrine. In either case, any limitation to the the Chevron Doctrine will have a profound impact on the functioning of the administrative state.

Very interestingly, federal jurisprudence is not the only level at which the struggle against the Chevron Doctrine is unfolding. During the midterm election on 6 November 2018, the people of Florida passed the ballot measure called Amendment 6 which prohibits state Courts from deferring to state administrative agencies (such as Florida Department of Revenue) in cases of ambiguous statutes (Florida Today). The measure was clearly designed to rid state law of anything resembling the Chevron Doctrine. Although the Amendment does not apply outside the state of Florida, and even within the state it applies only to state (not federal) law, it is yet another signal that the Chevron Doctrine might be in trouble.

US Supreme Court to Hear Cross-shaped War Memorial Case

On 2 November 2018, the US Supreme Court issued a writ of certiorari to the Court of Appeals for the 4th Circuit in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017, thereby agreeing to hear the case of a 93-year-old war memorial in the shape of a cross (SCOTUS Blog). The memorial was completed in 1925 to commemorate 49 local residents who had died in World War I. In 2014, the American Humanist Association sued Maryland public bodies responsible for the upkeep of the monument alleging that it “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten” (Fox News). In 2017, the Court of Appeals for the 4th Circuit ruled 2-1 in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017 that even assuming that the monument had some nonreligious function, “the sectarian elements easily overwhelm the secular ones” and that “the cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection” [p22] and as such its presence on a public land violated the Establishment Clause of the First Amendment. In March 2018 the Court sitting en benc refused to reconsider the case and Maryland petitioned the Supreme Court for a permission to appeal (The Washington Post).

The jurisprudence of the US Supreme Court in cases concerning the Establishment Clause is far from being clear. The Court has struggled over the years to agree on a set of precise directions as to when a religious symbol on a public land would violate the First Amendment. This has led to confusing rulings whereby some symbols have been upheld and others not. For instance, in 2005, in the case of Van Orden v. Perry, 545 U.S. 677, the Court ruled 5-4 that a Ten Commandments monolith on the Texas State Capitol grounds did not violate the Constitution. On the other hand, on the same day in 2005, in the case of McCreary County v. ACLU of Kentucky, 545 U.S. 844, the Court also ruled 5-4 that a Ten Commandments display at the McCreary County courthouse in Kentucky did violate the First Amendment. The two cases were extremely similar yet the Court reached the opposite conclusions. In both cases it was Justice Breyer who acted as the Swing Vote. With those two cases, the US Supreme Court has sent mixed signals to lower courts on the subject of the Establishment Clause. Nevertheless, the Court is now almost 15 years older and its composition has also changed, presumably became more conservative in nature. As a result, the majority of the bench might now have enough votes to articulate some clear guiding principles as to how lower courts should deal with similar cases in the future.

Former Justice Sandra Day O’Connor Announces She Has Dementia (SCOTUS)

On 23 October 2018, former Justice Sandra Day O’Connor announced she had dementia (SCOTUSBlog). Justice O’Connor was born in 1930 and was appointed to the US Supreme Court in 1981 by President Reagan as the first woman in history. She sat on the bench until 2006 when she retired and was replaced by Justice Alito appointed by President Bush. Justice O’Connor went down in history not only as the first female Justice of the US Supreme Court but also as the Court’s early Swing Vote. Appointed by a Republican President, Justice O’Connor believed in a limited federal government and as such was part of the so called Rehnquist Revolution whereby the US Supreme Court intended to set limits to the powers of the federal government. With cases such as United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000), the Rehnquist Court strove to return to the concept of the federal government as a government of enumerated powers after several decades of a rapid federal expansion. Justice O’Connor joined the other Republican-appointed Justices in deciding those cases.

In fact, Justice O’Connor started as a reliable conservative vote siding with (Chief) Justice Rehnquist 87% of the time during her first 3 years on the bench (Greenburg). Since 1984 until 1998, Justice O’Connor’s support for (Chief) Justice Rehnquist’s opinions ranged from 93.4% to 63.2% (Los Angeles Times). With the passage of time, Justice O’Connor started to slowly drift towards the liberal side of the Court and between 1994 and 2004, she voted with the liberal Justices a total of 28 times (Harvard Law Review). This included some key issues such as affirmative action (Grutter v. Bollinger, 539 U.S. 306 (2003)), religious liberty (Lee v. Weisman, 505 U.S. 577 (1992)) and abortion (Planned Parenthood v. Casey, 505 U.S. 833 (1992)). In any event, Justice O’Connor will always be a symbol of an ever-changing Supreme Court.

Affirmative Action Goes on Trial (Again)

On 25 August 2018 The Jurist’s Corner speculated about possible legal issues to reach the US Supreme Court in its current term. This included the question of the constitutionality of affirmative action in the light of a DoJ investigation into the admission practice of the Harvard University which allegedly discriminated against Asian-American candidates. It is now confirmed that on 15 October 2018, a lawsuit against the Harvard University alleging race discrimination goes on trial before a federal District Court in Boston. The lawsuit is being brought by the Students for Fair Admissions founded by anti-affirmative action activist Edward Blum, and is supported by the Trump Administration. Affirmative action has been so far upheld by the US Supreme Court on numerous occasions, most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, even so upheld, affirmative action is legally limited only to situations where no race-neutral solutions would be effective in increasing the number of minority students accepted by a University. The lawsuit now alleges that the Harvard University has not properly considered race-neutral admission schemes before factoring race in its application process (Reuters). In this type of lawsuits, the burden of proof rests on a University to justify the use of race as a consideration in its admission process. On the other hand, if this cases proceeds to the US Supreme Court, it is possible the Court will declare affirmative action unconstitutional in its entirety. Affirmative action has always been very controversial and recent cases were decided 5-4 with Justice Kennedy joining the 4 liberal Justices in upholding it. Now that Justice Kennedy has been replaced by Justice Kavanaugh, it is possible the Court will vote 5-4 to strike down all affirmative action programmes as a form of unconstitutional discrimination under the 14th Amendment.

Impeaching a Supreme Court Justice

The next day Justice Kavanaugh had been confirmed to the Supreme Court, some Democrats called for his potential impeachment, should they flip the House of Representatives after the November mid-term elections (The Washington Post). Article II, Section 4 of the Constitution stipulates that “... all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors“. Accordingly, the impeachment process has several elements. Firstly, the alleged wrongdoing must fall within the scope of an impeachable offence. Secondly, the House of Representatives must approve the Articles of Impeachment with a simple majority vote. Thirdly, the Senate must convict (i.e. removed from office) with at least 67 votes or otherwise the proceedings result in an automatic acquittal. Although a Justice of the Supreme Court (and any other federal Judge), as an Officer of the United States, is subject to impeachment, it is very unlikely that Justice Kavanaugh will be (successfully) impeached in any foreseeable future. First of all, it is not clear anyone could be impeached for any alleged wrongdoing taking place prior to the taking of the office. In Justice Kavanaugh’s case, most allegations were at least 30 years old therefore not in any manner connected with the office from which a successful impeachment would seek to remove him. Secondly, even if the Democrats win a majority in the House of Representatives in November, it is not clear they will have 218 House Members willing to vote in favour of the Articles of Impeachment, given how many of them would be coming from Red States supporting Justice Kavanaugh. Thirdly, even if the House votes to impeach, the impeachment will inevitably fail in the Senate given that the Constitution requires a two-thirds super majority to convict (i.e. remove) a person subject to the impeachment proceedings. As of now the Democrats do not even have a simple majority in the Senate and even if they manage to flip it in November, it will not amount to a two-thirds majority. From a purely legal point of view, raising the possibility of the impeachment of Justice Kavanaugh could not be taken seriously. This is even more so considering that no Justice of the Supreme Court has ever been removed from office by way of impeachment. In 1804 Justice Chase was impeached by the House of Representatives but a year later the impeachment failed in the Senate. In terms of lower courts Judges, only 14 have ever been impeached and of those only 8 have been actually removed from office by the Senate and an overwhelming majority of them on the grounds strictly related to their functions as a Judge, such as taking bribes or abuse of power (Federal Judicial Center). The possibility of impeachment by Congress is an extremely powerful tool which goes against the traditional separation of powers and therefore, by design, its use is severely restricted only to the most serious examples of the abuse of power.

Justice Kavanaugh Joins the Supreme Court

On the night of 6 – 7 October Judge Kavanaugh was officially confirmed by a 51-49 majority of the US Senate as a new Associate Justice of the Supreme Court. Republican Senator Lisa Murkowski of Alaska, who was considered a swing vote, voted ‘present’ therefore opposing the candidacy. Another Republican swing vote, Susan Collins of Maine, aligned with a Republican majority after a forceful defence of Judge Kavanaugh on the Senate floor the day before. The Republicans also picked up one Democrat, Joe Manchin of West Virginia who is facing a tough re-election fight in his deeply red state. The vote comes after weeks of investigations and hearings concerning sexual misconduct allegations against Judge Kavanaugh put forward by 3 different women, among which was that of Dr Christine Blasey Ford, which was a subject of a special Senate Judiciary Committee hearing (summary of allegations: Business Insider UK). In the last days of the process, many Senators saw protesters roaming the Senate halls demonstrating both their support and opposition to Judge Kavanaugh’s confirmation. This also included many examples of disorderly behaviour leading to hundreds protesters being arrested (The Guardian). The opposition to Judge Kavanaugh’s confirmation was based on a whole range of arguments, from those related to his judicial record, through the non-disclosure of old communication records, to those concerning sexual misconduct allegations and his short temper. On the other hand, the Republicans complained that the Democrats were adamant to derail the confirmation process with malicious behaviour from the start and none of their arguments had any merits. At the end of the day, however, Judge Kavanaugh has been dully confirmed and will now join the other 8 Justices of the Supreme Court who have already returned to work from their summer break.

The appointment of Judge Kavanaugh to the Supreme Court is bound to create a reliable originalist majority for the first time in almost 80 years, i.e. since Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. Although since 1937 the Court has seen periods with a majority composed of Republican-appointed Justices, they have not been consistently originalist in their judicial philosophies. It was the appointment of Justice Scalia to the bench by President Reagan in 1986 that brought the originalist philosophy back from the exile to the mainstream. Since then, other originalists have been appointed to the Court, including Justice Thomas (1991), Chief Justice Roberts (2005), Justice Alito (2006), Justice Gorsuch (2017) and now Justice Kavanaugh. Although the originalism of Chief Justice Roberts is admittedly less rigorous than that of Justice Thomas, and in the incoming years he might be even moving more towards the centre, it seems that the current Court is bound to be concerned with the original meaning of the Constitution more than at any other point within the last 80 years.

These changes to the composition of the Supreme Court will have a profound impact on a whole range of cases which are likely to reach the Court in this term. Firstly, on the subject of the 2nd Amendment, the Court might be asked to decide what types of firearms are covered by the 2nd Amendment and whether the Amendment applies to all public spaces in addition to one’s home. In this respect there appears to be a circuit split between the 9th and the 7th Circuit Courts of Appeals (Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) v Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788)). Secondly, on the never-ending issue of ObamaCare, the Court will likely be asked to resolve the question whether the ObamaCare’s Individual Mandate (and possibly other parts of the statute with it) has been rendered unconstitutional by The Tax Cuts and Jobs Act 2017 which eliminated the tax/penalty for not complying with it. At this point, several Red States are suing claiming that the elimination of the tax has rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in its famous 2012 case (Texas Tribune). However, the lawsuit goes even further and claims that the Individual Mandate is inseverable from the rest of the law, or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Thirdly, the Court might be asked to rule whether the DACA programme (and its rescission via executive action) is constitutional. The Trump Administration announced in 2017 that it would rescind the DACA programme altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. Now an appeal in this case is expected by the Trump Administration. Fourthly, also on the immigration subject, the Court might be asked to finally resolve the question of the legality of the so called sanctuary cities. In 2017 the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and persuaded a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Fifthly, the Court is likely to be asked again to rule on the constitutionality of affirmative action as last decisions on this subject have been extremely closely decided with Justice Kennedy always casting the deciding vote. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Finally, the Court will most likely, again, deal with abortion. On 4 May 2018 the State of Iowa passed into law in the so called ‘heartbeat’ Act banning abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, which now constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the Supreme Court. Overall, given the multitude of important issues which await consideration by the US Supreme Court, the new originalist majority of the Court might leave a unique legacy for decades to come.

President Trump Unable to Flip Appeal Courts Circuits

President Trump has made clear on several occasions that judicial nominations are one of his top priorities. In terms of Appeal Courts, as of 15 September 2018, he has successfully appointed 26 Circuit Judges, with further 10 nominations pending before the Senate and another 3 positions awaiting his nomination (13 vacancies in total). Many commentators have been pointing out that President Trump might not only change the constitution of the US Supreme Court by appointing Judge Gorsuch (and most likely Judge Kavanaugh) to its bench, but also flip majorities of at least some Appeal Circuits. However, upon a closer examination, this seems rather unlikely, at least in President Trump’s first term in office.

The US Courts of Appeals are grouped in 11 Circuits in addition to the so called special DC Circuit. As of 15 September 2018, the 1st Circuit is the only one which has not had any vacancies since the last general election and as such it has a stable 4-2 Democratic majority. The 2nd Circuit has 3 vacancies but even if filled by President Trump, it will retain a Democratic majority of 7-6. The 3rd Circuit has 2 vacancies and it has already seen 1 judge appointed to its bench by President Trump in addition to 4 judges appointed by previous Republican Presidents so assuming President Trump fills those 2 empty seats, the Circuit will be evenly split 7-7 between the Republican and Democratic appointees. The 4th Circuit has also had 2 judges appointed to its bench by President Trump on top of 4 judges appointed by previous Republican Presidents but it retains a stable Democratic majority of 8-6. The 5th Circuit currently has 1 vacancy, 5 Trump appointees and 6 other Republican-appointed judges making its overwhelmingly Republican 12-5. The 6th Circuit is also overwhelmingly Republican with 4 Trump appointees on top of 7 other Republican-appointed judges adding up to a strong 11-5 Republican majority. The situation is similar in the 7th Circuit which has 4 Trump appointees in addition to other 5 judges appointed by previous Republican Presidents adding up to a stable 9-2 Republican majority. This is again seen in the 8th Circuit where President Trump has appointed 3 judges on top of 7 other Republican-appointed judges adding up to an overwhelming Republican majority of 10-1. The most liberal of all the Circuits, the famous 9th Circuit currently has 7 vacancies, 1 Trump appointee and another 5 Republican-appointed judges but even assuming all those vacancies are filled by President Trump, the Circuit will nevertheless retain a stable Democratic majority of 16-13. A stable Democratic majority of 7-5 will also hold in the 10th Circuit where President Trump has appointed 2 judges on top of another 3 appointed by previous Republican Presidents. The 11th Circuit is another Circuit which is evenly split 6-6 between the Democratic and Republican appointees after President Trump has appointed 3 judges in addition to another 3 Republican-appointed judges already on the bench. Finally, the DC Circuit consisting of 1 Trump appointee and 3 other Republican-appointed judges also retains a stable Democratic majority of 7-4.

Given the structure of vacancies inherited by President Trump, it is unlikely that his appointments will be able to flip any Appeal Circuit. As of 15 September 2018, despite any appointments made so far, and any other likely to be made in President Trump’s first term, Democratic-appointed judges hold majorities in 6 Circuits (1st, 2nd, 4th, 9th, 10th and the DC Circuit) and Republican-appointed judges hold majorities in 4 Circuits (5th, 6th, 7th and 8th). The only difference made by President Trump’s appointments to the Appeal Courts could be observed in the 3rd and 11th Circuits which moved from stable Democratic majorities to being evenly split. In any event, with the appointment of Judge Gorsuch and the likely appointment of Judge Kavanaugh to the US Supreme Court, it is not the Appeal Courts where President Trump intends to make his judicial legacy most visible.

After the Hearings: Kavanaugh Likely to be Confirmed

Between 5 and 7 September 2018, the Senate Judiciary Committee held confirmation hearings for the Supreme Court nominee Judge Kavanaugh. The Committee composed of 21 members (10 Democrats and 11 Republicans) questioned Judge Kavanaugh on his judicial record and philosophy. As expected, it was a hugely contentious hearing with constant shouts from the audience leading to multiple arrests and Democratic Senators attacking the nominee’s credibility and independence. However, after 3 long days, Judge Kavanaugh came out of the hearings without any significant blunder. Most of the time he followed the so called Ginsburg Rule declining to answer any question concerning any legal issue which could possibly come before the Court. Perhaps most crucially, Judge Kavanaugh also described Roe v Wade as an ‘important precedent’ therefore making it possible for the 2 pro-choice Republican Senators Lisa Murkowsky of Alaska and Susan Collins of Maine to support his nomination. The 2 Senators are considered the swing votes in the upcoming confirmation vote given that the Republicans need all their Senators to vote yes, assuming the vote would go down along the party lines, which is likely. Now that Judge Kavanaugh has not raised any red flags for any Republican Senator, he is likely to be confirmed by the Senate by the end of September so that he can join the Court by 01 October when its term starts.

The confirmation of Judge Kavanaugh to the Supreme Court will indeed be a historical moment. For the first time in almost 80 years the US Supreme Court will have a reliable originalist majority. The last time there was an originalist majority on the Court was prior to the so called ‘switch in time that saved nine’, i.e., before Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. For the next 80 years the Court will almost consistently decide cases coming before it based on the premise that the US Constitution is a living document whose meaning changes over time. Now all this is about to change. This, of course, does not mean that the Court will suddenly start overruling 80 years of precedents. However, given how much is at stake, it is no surprise the liberal forces are very anxious about their legacy.

Interesting Cases to Look For during the Next US Supreme Court Term

While the US Supreme Court is in recess now, there are several potentially monumental cases which are either being processed in lower Courts at the moment or are likely to end up before the federal courts soon, which are due to eventually bubble up during the high court’s next term. As the Court reconvenes in October 2018, it will also most likely have a new member, Judge Kavanaugh, whom the Senate Republicans plan to confirm in September 2018 thereby consolidating a solid conservative majority on the bench. The Supreme Court so constituted, will face requests to adjudicate on a whole series of tough issues, some of which are now long overdue.

Here is a list of 6 big questions the US Supreme Court might be asked to answer during its next term:

1. Whether the 2nd Amendment Protects the Right to Bear Arms outside One’s Home

In its landmark 2008 opinion, the US Supreme Court ruled in District of Columbia v. Heller (554 U.S. 570 2008) that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago (561 U.S. 742 2010) to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This leaves two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues are hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Nevertheless, the State of Hawaii is entitled to apply for a reconsideration of this decision by an en banc Court which, given a strong liberal nature of the 9th Circuit, is likely to result in a reversal of the original decision. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788) that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later. Here the appointment of Judge Kavanaugh as a new Supreme Court Justice might be of considerable impact as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia No. 10–7036. 2011).

2. Whether the ObamaCare’s Individual Mandate Has Been Rendered Unconstitutional by The Tax Cuts and Jobs Act 2017

So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts and a new one is gaining momentum now. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, it could be read as a tax and thereby be a valid exercise of the taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate. However, The Tax and Jobs Act 2017 recently passed by Congress eliminates this so called tax while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in 2012 (Texas Tribune). However, the lawsuit goes even further as it claims that the Individual Mandate is inseverable from the rest of the law or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Interestingly, the replacement of Justice Kennedy with Judge Kavanugh might actually push the Court to reject any challenges to the ObamaCare as Judge Kavanaugh appears to have been more accommodating in this respect than his predecessor, siding with the approach of the Chief Justice rather than Justice Scalia (Seven-Sky v. Holder (No. 11–5047 2011)).

3. Whether the DACA Program (and its Rescission via Executive Action) is Constitutional

Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the United States as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put it on a statutory footing. Since then, DACA has been often cited as an example of executive overreach given that it was introduced via executive action thereby circumventing the legislature. The policy has been challenged in the federal courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas, 579 U.S. ___ (2016), although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot. The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. This is yet another signature policy of the Trump Administration after the so called Travel Ban blocked by lower federal courts and therefore the decision is bound to be appealed by the Administration in hope that the US Supreme Court will vindicate its lawfulness, as it happened in the Travel Ban case (Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018)). In this area the impact of the appointment of Judge Kavanaugh to the Supreme Court is rather difficult to predict.

4. Whether the Policy of Sanctuary Cities is Constitutional

The question of the constitutionality of sanctuary polices has been looming for decades but so far it has never been properly decided. This, however, might change now that the Trump Administration vowed to crack down on Blue States shielding illegal immigrants from federal agencies. On the one hand, the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties (San Francisco and Santa Clara) sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and managed even to persuade a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Accordingly, given how high this issue is on the Presidential agenda and how much litigation it has generated so far, one of those cases is bound to end up before the US Supreme Court sooner or later and this time the Court will have no choice but to rule on a wider issue of sanctuary policies in general. As with the DACA programme, the impact of the appointment of Judge Kavanaugh to the Supreme Court on sanctuary policies is not easy to predict.

5. Whether Affirmative Action is Constitutional

Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke (438 U.S. 265 1978), then in 2003 in Grutter v. Bollinger (539 U.S. 306 2003) and most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, the recent decisions have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy is being replaced by Judge Kavanaugh, the Court might easily swing the other way. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Although no case has been brought on this issue so far, there are signs that affirmative action might once again end up before the federal courts and this time Justice Kennedy will not be around to save it.

6. Whether Fetal Heartbeat Legislation is Constitutional

The opposition of Red States to the constitutional right to abortion recognised in Roe v Wade (1973) is widely known. From time, to time, this opposition materliases in a form of some State legislation hindering access to abortion in hope that it would pass the Undue Burden test imposed on this type of legislation by the Supreme Court in the case of Planned Parenthood v Casey (1992). One of such measures was passed and signed into law in the State of Iowa on 4 May 2018. The so called ‘heartbeat’ Act bans abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, and as such constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the US Supreme Court. This is especially interesting given that Judge Kavanaugh’s jurisprudence on abortion is very scarce and no one is able to predict how he might vote on this issue. If the newest Justice decides to side with the reliable conservatives on the Court, the fate of the right to abortion in the United States will depend solely on Chief Justice Roberts and he remains a huge unknown as well.

It seems that in its 2019 term, the US Supreme Court might be asked to decide at least 6 issues of historical importance and its decisions will be felt across the whole country in decades to come.

Justice Ginsburg’s Plans to Retire

On 29 July 2018, Justice Ginsburg, who is currently 85 years old 
declared that she planned to remain on the Supreme Court for at least 5 more years (The Guardian). The Justice is already the oldest sitting Justice of the Court. She was originally appointed by President Clinton in 1993 at the age of 60 as the second woman ever appointed to the US Supreme Court. She is a known liberal who openly opposed the candidacy of Donald Trump during the 2016 presidential election (CNN). In fact, it is common knowledge that Justice Ginsburg will not voluntarily retire during a Republican president. Given her age, she was pressured to retire during the second term of the Obama’s presidency in case his predecessor turned out to be a Republican but she did not cave (e.g. NY Times here). Now that President Trump appoints strictly conservative judges to the federal benches, Justice Ginsburg embraces herself to wait out his term in office. During the next presidential election in 2020, the Justice will be 87 but her retirement plans will necessarily depend on whether President Trump is re-elected or not. If President Trump wins again in 2020, Justice Ginsburg will have no choice but to endure yet another 4 years on the bench. If successful, this would bring her to over 91 thereby beating the current record-holder, Justice Oliver Wendell Holmes, Jr., who stepped down at the age of 90 years and 10 months. She would also beat her former colleague Justice John Paul Stevens, who retired in 2010 at the age of 90 years and 2 months. Justice Ginsburg, despite her history of cancer and regular nodding-off during official events, remains active both as an opinion writer on the bench as well as a public speaker outside the Court. Given her spirit, she might as well be capable of achieving the title of the oldest ever sitting Justice of the US Supreme Court, that is provided nothing unexpected happens of course.

President Trump’s ‘Record-breaking’ Number of Judicial Appointments

With the nomination of Judge Kavanaugh for Justice Kennedy’s seat at the Supreme Court, some commentators raised the issue of President Trump rapidly transforming the Federal Courts by appointing a record number of District and Circuit Court Judges (e.g The Guardian here and here). This claim is based mostly on the fact that a record number of such Judges have been appointed in President Trump’s first 1,5 years in the office comparing with previous Presidents (e.g. The Hill here). In as much as this is probably true, the claim that President Trump will appoint an unprecedented number of lower Courts Judges is rather misleading.  As of 25 July 2018, President Trump has nominated 137 Judges of the so called Article III Courts (USCourts.gov). Although this seems like a high number for only 1,5 years into the presidency, so far the US Senate has confirmed only 44 of those 137 nominations (including 1 Justice of the Supreme Court, 23 Judges for the United States Courts of Appeals and 20 Judges for the United States District Courts). This is still claimed to be one of the highest numbers for any presidency after only 1,5 years. However, even if this pace is maintained, and President Trump is re-elected in 2020, he will have only appointed around 234 Judges throughout his two terms. This is not even close to his predecessor, President Obama, who appointed 308 Judges between 2008 and 2016. It is also far from the three record-holders in this regard, President Clinton, President Reagan and President W. Bush, who appointed 357, 347 and 310 Judges, respectively.

Even this calculation is based on the assumption that (a) President Trump will be re-elected and (b) that the Republicans are able to retain the Senate majority of at least 51 votes throughout the two presidential terms. Both assumptions are easy to displace. In fact, the Republicans might as well lose the Senate majority in the November mid-term elections and, given the degree to which the judicial confirmation process has been politicised, none of President Trump’s nominees awaiting a confirmation hearing might receive his or her judicial commission after all. It is clear that a Democratic Senate will not help President Trump elevate conservative Judges to the Federal Courts. In such case, President Trump might end up on the lower end of the SCOTUSBlog ranking with no more than 50 judicial appointments in total.

Judge Kavanaugh to Replace Justice Kennedy

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On 09 July 2018 President Trump nominated Judge Kavanaugh for the US Supreme Court vacancy created by the retirement of Justice Kennedy. Judge Kavanaugh is a Judge of the Court of Appeals for the powerful DC Circuit and has been serving in this capacity for 13 years. He had been initially appointed to this Court by President Bush after having served under him as a White House staffer. Even more interestingly, in the 1990s, Judge Kavanaugh worked with Independent Counsel Kenneth Starr investigating business deals of then President Bill Clinton in relation to the Whitewater development which famously led to the impeachment and then the eventual acquittal of President Clinton on the charges of perjury and the obstruction of justice in 1999.

Judge Kavanaugh is known to be an originalist with a strong record on gun laws (Heller v. District of Columbia (2011)) and the separation of powers (PHH Corp. v. Consumer Financial Protection Bureau (2017)). On the other hand, many conservative members of the Senate point out that he helped save ObamaCare’s individual mandate when the case was before the Court of Appeals by construing it as a tax (Seven-Sky v. Holder (2011)) and voted to uphold massive data collection by the NSA outside the Fourth Amendment’s protection of privacy (Klayman v. Obama (2015)). Finally, Judge Kavanaugh seems to have no clear record on the right to abortion (but see Garza v. Hargan (2017)) – the most crucial issue for the vast majority of progressive Senators.

In the incoming months, Judge Kavanaugh will face a Senate confirmation hearing and will be asked to answer multiple questions about his judicial and administrative past. The hearing will most likely be a contentious one with many Democratic Senators already vowing to vote against him. However, with a 51 majority, the Senate Republicans are likely to confirm Judge Kavanaugh in time for a new session of the Supreme Court beginning in October 2018. The vote will probably go down along the party lines with a few Democrat Senators from typically Red States perhaps voting for Judge Kavanaugh to strengthen their position before the November mid-term elections.

The Most Powerful Man in America Retires

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The most powerful man in America has finally retired. There was no one in the country’s past 30 years who had a bigger impact on the law of the United States than Justice Kennedy. No President, no Majority  Leader, no State Governor had power coming even close to that of Justice Kennedy, aka the Swing Vote. The number of cases Justice Kennedy single-handedly decided is breathtaking. He is the man who allowed gay people to marry (Obergefell v. Hodges 2015) and buy firearms (District of Columbia v Heller 2008) at the same time. It seems that President Trump is now likely to appoint another young judge in the vein of Justice Gorsuch, his first pick. Whoever President Trump chooses to replace Justice Kennedy will be subjected to the most vicious confirmation process this country has ever seen. Probably even more vicious than the confirmation hearings of Robert Bork or Clarence Thomas. The President is set to announce his pick on Monday, 9 July.