I covered two of yesterday’s arguments for SCOTUSBlog–
Comments
“I guess I’m struck by the confidence of a Justice who would say on his first day on the job that all eight of his colleagues were “mak[ing] it up” (p. 26 of the transcript) in a case they decided a few terms ago”
Sometimes cases need to be overturned just a couple years later, the pledge case, for example. Or how Breyer was ready to overturn Heller in McDonald, due to his claim of whole new historical evidence.
Posted by: Pledging | Apr 18, 2017 9:24:43 PM
This sort of thing wasn’t seen in a positive sense from some of us who oppose his nomination, including during the hearings. It flags the answer of one of the five or whatever questions posed by a professor here recently might be ‘yes, he will be more likely to overturn precedent.’
But, you know, small sample size and all that.
Posted by: Joe | Apr 18, 2017 8:17:31 PM
I guess I’m struck by the confidence of a Justice who would say on his first day on the job that all eight of his colleagues were “mak[ing] it up” (p. 26 of the transcript) in a case they decided a few terms ago, when he himself would later acknowledge that whether he’s right depends on a very difficult parsing of the phrase “subject to” that the assistant to the SG couldn’t even understand (see p. 49 of the transcript). My favorite part is where he asks (at p. 50) if the government “has any authority for th[e] proposition . . . besides Kloeckner” that this phrase means what the Court recently and unanimously said it did in Kloeckner, when the government wasn’t there to defend Kloeckner, a case it lost, but to distinguish it and quite obviously wouldn’t be prepared to defend, in that detail, precedent that everyone in the case has treated as a given.
Posted by: Asher Steinberg | Apr 18, 2017 7:43:47 PM
He might have a textual point–hard to tell, given how poorly written the statute is. He does not have a purposivist point–the goal of mixed cases is to find a way to keep everything together.
Posted by: Howard Wasserman | Apr 18, 2017 3:54:48 PM
Does Gorsuch have a point about Kloeckner or is this a pretty eccentric view? I was fairly surprised that he would ask what seemed like at least a dozen questions in his first argument about essentially overruling a 5-year-old unanimous decision that both parties treated as a given, but I couldn’t tell how oddball that position was from the transcript. Glancing at Kloeckner, it does seem tolerably clear, given the cross-reference in 7703(b)(2) to 7702, and what 7702 says about Board review of mixed cases, that a mixed case goes in full to district court (subject to niggling about what a mixed case is). It also appears, from reading Kloeckner, that even in Kloeckner the government agreed that at least mixed cases that were decided on the merits went in full to district court.
Posted by: Asher Steinberg | Apr 18, 2017 1:33:41 PM