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Cato’s SCOTUS Review Raises Questions about Upcoming Session

Cato’s SCOTUS Review Raises Questions about Upcoming Session

Are you ready for the October Term?

Last week I had the privilege of attending the Cato Institute’s Constitution Day event covering the October 2014 and 2015 Supreme Court terms. It was a wonkishly good time, and afforded me the opportunity to both soak in some new insight on the Court, and kick off analysis and prediction posts for the upcoming Supreme Court term.

Overall, the presenters and panelists don’t expect the upcoming term to bring us as many “blockbuster” cases. Last term was defined by the shadow of Obergefell and the question of gay marriage; we knew it was coming all term, and its prominence in the hearts and minds of the American people shunted to the side even the important rulings concerning Obamacare and the Fair Housing Act.

Still, this term still has the potential to inspire some scorching takes from both wings of the media on the Clean Water Act, wiretapping laws, religious freedom, and abortion laws. We still have a ways to go before we get to examine a full docket, so stay tuned.

Cato did a great job of making their presentation accessible to both attorneys and non-attorneys, which (from my experience) is rare for events held by true think tanks. The presentations on Executive power, civil rights, and the state vs. the individual were all 100% relevant with regards to the legal philosophy discussed, and its application to the situations we see and experience every day.

Shameless plug: If you’ve been following all the ways in which the government tends to steamroll, back over, and steamroll again the rights of individuals and businesses, I highly recommend throwing in your earbuds and listening to the entire “Bizarre State Action” panel.

You can watch all of the panels here.

My biggest takeaway (because I tend to embrace the philosophical) is the sense that, even in Washington, DC, where we’re surrounded by politicians, questions concerning the Court come down to so much more than the political trends of the day. Relegating the discussion to “conservative vs. liberal” isn’t persuasive. There’s something to be said for bringing formal legal arguments back into the conversation about appointments, predictions, and the balance of the court. Even on the conservative (and to a greater extent, libertarian) side, reasonable minds do disagree about which way the court should lean on even the most important issues on the docket.

Case in point: the Cato Institute filed an amicus brief in DOT v. Association of American Railroads that directly contradicted one filed by panelist and Emory University law professor Sasha Volokh. The briefs (and their writers) disagreed about the application of the nondelegation doctrine, but both recognized the give and take inherent in the analysis of nondelegation issues.

It was refreshing to watch that debate take place outside the context of the political media spin cycle. The debate wasn’t any less heated, or influential, but it did give us all something to think about apart from which pundit/candidate/author/politician said what about the statutory precedence of Amtrak’s operating privileges over those of private carriers.

I hope to bring a little bit of this type of analysis to the table this term. If there’s something you’d particularly like to see covered, either before or after oral arguments, toss me a tweet or direct message and I’ll do my best to get an answer in the hopper.

We’ll be covering the October term as it progresses, so stay tuned!

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Subotai Bahadur | September 21, 2015 at 4:48 pm

Clean Water Act, wiretapping laws, religious freedom, and abortion laws.

Short form for the coming term:

1) The Federal government controls all water inside the US with no appeal.
2) The Federal government can ignore the Fourth Amendment in the name of internal or external security [and will no matter what the court rules].
3) The Christian faith must yield to all others and/or atheism.
4) Abortion outweighs everything else.

Roberts, Alito, and Kennedy will take turns being the deciding vote for these.

Conservatives will be disappointed. Leftists will be smug.

It is the way things are.

Much to my dismay, the Supreme Court has devolved into the third lawless branch of a lawless government. Lifetime tenure has granted the freedom necessary to ignore the values upon which our nation was founded.

MouseTheLuckyDog | September 22, 2015 at 1:09 am

Any major patent or copyright cases?
Shame they didn’t take Oracle vs Google.
The CAFC’s ruling was a travesty, the best thing to do for the economy would be to take the whole CAFC out and shoot them. ( Well some aren’t really that bad with a new chief ).