Could there be outside-the-box solutions to the jurisdictional puzzle in Dart Cherokee Basin Operating Company, LLC v. Owens? I recently chatted about this topic with Akhil Amar, one of the five people still interested in it. If you are people three to five, then this is the post for you.
There’s been a lot of debate over the past year or so about whether Justices Ginsburg and Breyer should or will retire in order to maximize the chances that President Obama will be able to name their successors. In an effort to put out this fire, Justice Ginsburg recently fed the flame by asserting that “If I resign anytime this year,” the President “could not successfully appoint anyone I would like to see in the Court.” Jeffrey Toobin asked the President about this, and he responded with a measure of skepticism, while conceding: “Life tenure means she gets to decide, not anybody else, when she chooses to go.” Underlying these events is an important question: should supposedly neutral Justices time their retirement decisions based on what seems like political strategy?
Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?
The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.
This morning, the Court heard argument in North Carolina Board of Dental Examiners v. FTC, an important and fascinating state-action antitrust case featuring Hashim Mooppan’s impressive debut at One First Street. But perhaps the most remarkable feature of the case is that it has spawned so much tooth-based wordplay. Here’s a sample, for your amusement:
- USA Today: “For Supreme Court, dental case is like pulling teeth”
- Reuters: “Supreme Court justices chew on teeth-whitening dispute,” which opens: “The U.S. Supreme Court may have bitten off more than it can chew in a North Carolina case….”
- WSJ: “Smile and Say Price-Fixing”
- Boston Herald: “High Court has chance to put teeth into free market”
- National Law Journal: “High Court Drills Dental Examiners Board”
The Court heard argument on Tuesday in Dart Cherokee Basin Operating Co. v. Owens, an important class action removal case that was unexpectedly hijacked by a jurisdictional problem pointed out by an amicus (Public Citizen). Like any good jurisdictional discussion, the argument includes funny moments, some provocative ideas, and insights into federal-court practice.
Could a middle-of-the road solution prevail in Heien v. North Carolina, the fascinating and important Fourth Amendment case being argued on Monday? The parties and most commentators have understandably focused on the more absolutist positions in the case, but alternative dispositions are available. In particular, the Court could rule that mistakes of substantive law are reasonable for Fourth Amendment purposes only when the police have relied on clear guidance from authoritative sources, like courts or legislatures. That middle-ground approach would give the government a partial victory on the legal standard applicable in future cases, while affording the defendant a victory in the case at hand.