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Tuesday, May 30, 2017

SCOTUS OT 2016 symposium

Thanks to Howard for kicking off the conversation.  As I mentioned, responding to Rick Hills, in the comments to Howard's post (!), I'm looking forward to Trinity Lutheran, in part for the Proust's-cookie-type reason that it reminds me of some (unsuccessful) cert. petitions that Michael Paulsen did, back in 1999, trying to get the Court to take up the "the Constitution does not allow states to discriminate against families that choose religious schools in the context of otherwise general benefits programs" argument.  I'm also curious to see what happens in Lee v. Tam and, in particular, what (if anything) the justices will say about the power of governments (including, say, state universities?) to regulate, discourage, punish, etc., "offensive" speech.  And, while I haven't thought much about parcels and takings since Bob Ellickson's Property class, I spend a fair bit of time with a Property Prawf, who tells me that the question in Murr v. Wisconsin -- "Whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes" -- is an interesting one.

Howard also asked the question that, I imagine, many of us who teach public-law subjects are getting from our Court-watcher-reporter friends, "Will Justice Kennedy retire?"  (Here is Dahlia Lithwick, suggesting that the Fourth Circuit's travel-ban opinion can be read as "a ransom note from the federal judiciary directed solely at Justice Kennedy.")  I, no surprise, have no idea, but I hope he does and that Justice Ginsburg does the same, the resulting political/partisan nastiness notwithstanding. I think this (at least, I think I think this) not (only) because I imagine their replacements would think about the law more like I do, but because I just don't think it's healthy or otherwise good for our rule-of-law aspirations for 80-years-old jurists (no offense!) to imagine themselves as, or to be regarded by us as, indispensable.  (For more on the "term limits for justices" conversation, see, e.g., this.)

Posted by Rick Garnett on May 30, 2017 at 08:22 AM in 2018 End of Term | Permalink


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