READ THAT BACK: First Monday Edition


The first Monday in October is usually a time of excitement and celebration for court-watchers. It still is—but the celebration is tempered by the knowledge of yet another mass-shooting massacre. As we add Las Vegas to the disturbingly long list of American mass shootings, maybe let’s take a minute or two to think about how, in the future, we can actually prevent them. We now proceed with your regularly scheduled programming.

IT’S FINALLY HERE GUYS FIRST MONDAY WOO. Oyez, oyez! The orders and oral arguments of OT17 are on! I would say that oral arguments are off to an exciting start, but with the juicy list of cases this term, it could hardly be any other way. But before we get to this term, we have to READ THAT BACK!

Order Up!: Technically they’re the last orders of OT16, but they sure feel like the first orders of the new term! That said, they maybe, kind-of-sort-of, felt like a bit of an anti-climax. The big grant was Janus, No. 16-1466, which was not only totally expected, but for which the outcome already seems foregone—it poses the same question as Friedrichs v. California Teachers Association, which ended in a 4-4 tie after the death of Justice Antonin Scalia. His replacement by Neil M. Gorsuch seems unlikely to move the ruling in favor of labor unions. Everything else is…sure, important, but not exactly, well, this. And we had a raft of denials today, too, although once again some of the most closely-watched cases (subscription required) weren't acted on.

Not Pulling the Trigger: The D.C. Circuit didn’t do much in September. They issued their first written opinions of the month on the 29th—the last business day. Genuine question: Is this something they usually do? A month without a decision seems like a really long time. And the other thing they did—or, rather, didn’t do—only happened the day before: They declined to rehear Wrenn v. District of Columbia, the case holding (subscription required) that the Second Amendment protects the right to carry a concealed weapon outside the home in self-defense. No one even asked for a vote, including the panel dissenter, leaving some perplexed.

Conflict Assured: The Second Circuit heard oral arguments (warning: begins download) this week over whether it should change its stance on whether Title VII covers employment discrimination based on sexual orientation. It presently says no, in conflict with the Seventh Circuit. If it changes course, it will be in conflict with the Eleventh Circuit. So the issue is probably going to the Supreme Court regardless. Interestingly, this is one of several cases where the federal government is up against itself—and by some accounts, it doesn’t seem to have gone well here.

Moore Moore Moore: How do you like it? Well, Alabama seems to like Roy Moore just fine—he unseated appointed Senator and Trump ally Luther Strange to emerge as the Republican nominee for the seat. Normally we cover courts at RTB, not elections, but readers may remember Moore as the former Chief of the Alabama Supreme Court twice over; removed once for refusing to remove a monument of the Ten Commandments from court grounds, and, after reelection, once again for defying the U.S. Supreme Court’s ruling in Obergefell v. Hodges. Is there something about this Senate seat, that it can only be filled by someone who has trouble holding—or getting—a job as a judge?

Halp I Am Not Good With Computer: There is an old joke that lawyers are not good with technology. Turns out, not actually a joke. Last week we had not one, not two, but THREE instances of what amounts to proof. LAWYERS, FOR YOUR OWN GOOD, STEP AWAY FROM THE KEYBOARD. Get an assistant.

It Makes Me Sick: Finding out what makes you sick, and stopping it from happening, is part of the FDA’s mandate. But when cosmetics are the culprit, the FDA isn’t necessarily doing the job that it can or should. Part of this is a lack of resources, and part of it is a lack of information. And if drywall isn’t the culprit, it may be because post-Katrina and -Rita regulations are keeping substandard drywall out of post-hurricane reconstruction efforts.

ICYMI:

  • The Washington Post profiles a Supreme Court clerk who should be an inspiration to us all.
  • Justice Gorsuch spoke to a conservative group at the Trump Hotel in Washington, calling for civility. A proper sentiment…but maybe not a proper venue.
  • Samantha Bee (Warning: Uhhh, it’s Samantha Bee) has thoughts about the Federalist Society and their role in selecting judges for the current administration. Recent selections include:
    • Tweeter Laureate Don Willett, for the 5th Circuit;
    • Jim Ho, whose wife Alyson was the only woman in private practice to argue more than once before the Supreme Court last term, also for the 5th Circuit; and
    • Jeff Mateer, who controversially said that transgender children are part of "Satan’s plan," for E.D. Texas.
  • Your baby needs a dissent jabot bib.
  • Law professors and historians are arguing over documents surrounding Alexander Hamilton’s understanding of the emoluments clause

And Now…Are You Ready for Some Football: Look, I’m sorry, but the kneel/don’t kneel conversation has so driven the national discourse over the last week that basically everyone had something to say, and a lot of it was really interesting. A lot of it was really stupid, too, but we’ll try to steer clear of that.

But before we get to knees, let’s take a minute to talk about heads. Scientists appear to be getting close to a test for CTE—a repetitive brain injury that can lead to erratic behavior and suicide, among other things—that doesn’t require that the patient be dead.

Of course, erratic behavior then suicide was also the tragic trajectory of Aaron Hernandez’s final years, which are now the basis of yet another concussion-related suit against the NFL—this one brought by his daughter.

But, so yeah, last week the president ignited a firestorm by expressing his opinion that Colin Kaepernick—a player famous not for taking his team to more Super Bowls than the Detroit Lions have ever seen (the Court Reporter has nothing against the Lions, really, they’re just such an easy target), but rather for kneeling during the national anthem to protest racial injustice—is a “son of a bitch” (to which Colin’s mother had this excellent response) and that players who do kneel during the anthem should be fired.

The comments inspired many more players to actually do so, and NFL ownership has generally been supportive. No one has been fired, and probably no one could be anyway.

And they inspired some thoughtful pieces, like this one, about how Citizens United may connect to the protests, and indicate that maybe it’s not so bad a decision as liberals might have feared.

And they coincided, in an it-would-be-hilarious-if-it-weren’t-so-confusing way, with the Attorney General’s announcement that the DOJ would be starting a push for free speech on campus—farcically, on a campus where the audience was pre-selected and protestors contained to certain areas.

There’s not a whole lot that the Court Reporter can say on the matter that hasn’t already been said. But labeling people unpatriotic as a way to push back against speech you disagree with is dangerous. The First Amendment was meant to stoke the fires of political discourse, but skipping the debate and instead impugning the motives of the other side risks dousing the flames completely.