October 8, 2014

NR-PLF Supreme Court preview event: fish and raisin jokes, and some serious Supreme Court analysis

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

National Review/Pacific Legal Foundation’s “first annual” preview event on Monday of the Supreme Court’s term was a great success, as reflected by the live coverage and two re-broadcasts by C-SPAN. The event’s focus was on cases the Supreme Court had just agreed to hear as well as those the experts predicted the High Court might take in the second half of its term. The distinguished panelists, including PLF’s own litigation director, Jim Burling, seemed to have a good time, including quips about super-lawyer Lisa Blatt’s Cowboy boots, Jim’s lame fish jokes (yes Jim, they were lame), and John Elwood’s feigned raisin phobia. But they also covered many important issues, with high-level insight and analysis.

The program was very timely, addressing the denial of the marriage cert. petitions a few hours earlier, and it was pitched at a level that was informative to both law nerds who soak up Supreme Court insider information and anyone else interested in the major cases the Court might hear. You can watch the entire event, which is archived here by C-SPAN.

The attention some have given to the denial of certiorari in the marriage cases was foreshadowed when Jim and I attended oral argument Monday morning at the opening of the Court’s 2014 Term. About ten minutes before the clock struck ten, we noticed that only a few of the High Court’s scribes were in their seats near us. Some whispers to McClatchy correspondent Mike Doyle caused him to exit the Courtroom as well.  We knew something unusual must be in the Court’s orders released at 9:30 a.m., but I assumed it was a significant grant of a cert. petition, not a denial of all the marriage cases that were then pending.

Given the demands on the Court press to cover the unexpected marriage case denials, particularly those placed on wire service reporters, we owe our special thanks to Greg Stohr, Bloomberg News Supreme Court correspondent, who was a probing and engaging moderator for our event, and to Mike Doyle, who was among those who attended.

Jim’s discussion of the major ObamaCare cases, and whether the High Court might take one of them generated the most questions. All panelists agreed that the conventional wisdom among Court watchers was that the Court would take at least one of them, although Blatt personally dissented from that view. One cert. petition involving the state v. federal exchange subsidy issue, in King v. Burwell, has already been filed—even though the justices might wait to rule on it until a similar case is re-heard in the full DC Circuit Court of Appeals.

Jim also discussed PLF’s leading challenge to the individual mandate as a violation of the Constitution’s Origination Clause, Sissel v. HHS. As readers of this blog know, since the mandate itself is not constitutional, and the penalty is only constitutional if it is a lawful tax, PLF challenged the constitutionality of the purported tax since it originated in the U.S. Senate. A panel of the DC Circuit ruled against us last July, but with reasoning that effectively guts the Origination Clause. Two days ago, Paul Beard and Tim Sandefur petitioned the entire DC Circuit Court of Appeals to re-hear the case on behalf of our client, Matt Sissel.  If the DC Circuit re-hears the case en banc, it is unlikely that it or a similar case in the Fifth Circuit would be heard by the justices this term. If the DC Circuit does not agree to re-hear our case, it is possible our petition for High Court review will be submitted in time for the justices to act on it this term.

PLF is also involved in several of the other cases discussed by the panel on Monday. The undersized fish “shredding case,” Yates v. United States, was presented by Blatt, but PLF also filed in that case to prevent an abuse of the federal criminal law.  All panelists agreed the Supreme Court’s majority is likely to agree with our position and overturn the decision in Texas Dept. of Housing v. Inclusive Communities Project, Inc., that wrongly held that the federal Fair Housing Act prohibits acts that have a statistical, disparate impact based on race that are not intended to have such effects. And for the good of the nation, let’s hope the Court grants PLF’s own case for our farmer clients who are seeking to overturn an erroneous federal determination under the Endangered Species Act that is causing great human and economic harm in California, see Stewart & Jasper Orchards v. U.S. Fish and Wildlife Service.

A final word of thanks is due to NR for hosting the event it its DC office. If only the walls could talk, but then they did during the program. Broadcast viewers can hear a noise and see a startled reaction by panelists, as a framed picture fell from the wall and almost KO’d Greg Stohr. You can see it lying beside Greg in this link from C-SPAN. Is it portentous that a picture of William F. Buckley with his dogs above our logos stayed put and that a picture of the Capitol Building is what came crashing down during a discussion of possible High Court rulings? We report; you decide.

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