Usually something crazy happens over the weekend that merits a mention. Maybe the Court Reporter missed it this weekend? Unless you count the Grammys, those are usually some variety of bonkers, but also I can’t remember the last time anyone I know, or have ever met, or have ever seen in real life, cared about the Grammys. Let’s READ THAT BACK.
The Courts, Too: Not only are the federal courts not immune from the kind of sexual harassment that has, after too long, led to the #MeToo movement, but the lifetime tenure of federal judges may actually make the problem worse. As this CNN investigation makes crystal clear, the existing structures for dealing with the harassment have been woefully inadequate. Hopefully Chief Justice Roberts’s newly formed commission can implement a new system with the ability to do something about the problem. It does, as we mentioned last week, have the advantage of including a few non-judges—but could probably still use even more diversity.
Decisions, Decisions: WE FINALLY GOT SOME OPINIONS IN ARGUED CASES FROM THE SUPREME COURT. The most contentious one—a 5-4 decision with a maybe-sorta-kinda unexpected lineup—dealt with a relatively obscure interaction between state and federal law. The other two decisions last week—about where to challenge the Waters of the U.S. rule and partygoer probable cause—showed more (if not complete) unanimity.
Oppa Gorsuch Style *: Justice Gorsuch didn’t have the best week (more below). Following his dissent in Artis, Slate writer Mark Joseph Stern took him to task for, well, being a bad writer—both pretentious (The Court Reporter is reasonably well-read, but I did wonder if he was actually referencing G.K. Chesterton—without citing!) and redundant. The opinion and article even spawned a briefly popular Twitter hashtag: #GorsuchStyle. Of course not everyone agrees (subscription required), but maybe the foofaraw played some small part in his call, in a speech to Stockton University students, for a return to civility.
*I’m sorry, I’m sorry, I’m so so sorry.
Outside It Is Winter, But…: Speaking of Gorsuch (Gorsuch: So hot right now), he may have something to say if the U.S. Supreme Court declines to take up Pennsylvania Republicans’ challenge to their state high court’s decision that its U.S. congressional districts are gerrymandered (Gerrymandering: So hot right now). Of course, the state court’s decision was based on state law, so if the U.S. Supreme Court does get involved it will be relatively new territory.
Some People Collect Stamps: Exploring new procedural territory seems to be something of a hobby of the current administration. We mentioned last week that their appeal of the DACA decision was a bit strange (we also mentioned curling). It’s also probably going to be an uphill battle (subscription required).
Emolumentary: Remember all of those emoluments clause lawsuits? Yeah, almost no one does, but that doesn’t mean they’ve gone away. Well, one of them has. But another one looks like it has a decent chance of going forward—at least to the discovery stage.
And Now…Much Ado About Dinner: For the most part it’s not really anybody’s business who one has dinner with, unless one is a celebrity and it’s somehow important news whether and who you’re dating. (What is dating? the Court Reporter wonders.) Supreme Court justices are only celebrities in a narrow sense of the word (they’re limited purpose celebrities for purposes of the dinner rule, to strain an analogy) so ordinarily it wouldn’t be anybody’s business who they have dinner with, yes?
Hahahahaha, these are not ordinary times.
So it was, in fact, a bit of a big deal last week when Justice Gorsuch had dinner* with Senator Lamar Alexander (R-Tenn.) and Transportation Secretary Elaine Chao (wife of majority leader Mitch McConnell (R.-Ky.)) as guests of Senator John Cornyn (R-Texas). It probably wouldn’t have been—Justice Scalia often had dinner with politicians, and it’s likely that Justice Thomas does too, as his wife is involved in various conservative causes, and those didn’t really raise eyebrows—but that Alexander tweeted about it, saying that he enjoyed discussing important issues. Even that might not be objectionable, as New Yorker writer Jeffrey Toobin points out.
But as was pointed out…somewhere on Twitter (I really do have to get better at copying links), the fact that his name was used in a political context raises concerns. Even if they didn’t talk about anything having to do with cases pending before the court (entirely possible!), it could look like Republican Senators are using his presence as a reminder of what they did to get him on the court, and the kind of justices they’d like to see on it. That could create conflicts of interest, or more likely the appearance of conflict, in the future.
As National Law Journal points out, this is not—by a long shot—the first time Justices have gotten in trouble for mixing with politics** (subscription required). Nor is it likely to be the last. And Gorsuch is still new at this; maybe he’ll get the message and tell his dinner companions to maybe just…not tweet about it.
*Can we talk for a second about the trivia questions that tick by on the side of this page, by the way (ad blocker off)? They vary from things like “Who, in 2005, began ‘Operation Supreme Court Freedom’ to pray for vacancies on the Supreme Court?” to “How does a person become a member of Congress?” (for which one of the choices is “They Are Randomly Selected”—although frankly that might be a better choice than what we have now) Who sets the difficulty curve on these?
**I appreciate that NLJ used the right “flak” here (too often the Court Reporter sees “flack” in this context. Flak is anti-aircraft fire. This is Flack). But you don’t really receive flak. They’re shooting at you! “Thank you for the flak!” No. You “take” or “catch” flak. OKAY THEN.
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