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Wednesday, May 06, 2020

Back to normal? And a question

I had wondered whether these telephonic arguments might sound more familiar when we hit a more charged case. Based on Wednesday's argument in Little Sisters of the Poor, the answer is yes. Justice Alito went quite Michael Fischer for Pennsylvania, with the Chief allowing what seemed like more leeway to ask further questions and push a particular point and for counsel to answer (not sure if it involved additional time). Justice Ginsburg's first question for Noel Francisco involved a lengthy recitation of the law of political accommodations, followed by a "what do you think" quasi-question. She also was in advocacy mode with repeated questions about the burden on women from these accommodations. And Paul Clement, availing himself of the Court's familiarity with him, at a several points talked over the question and over the Chief's efforts to stop an exchange and move to the next Justice.

The second case, Barr v. American Association of Polticial Consultants, challenged the prohibition on political robo-calls under the TCPA, including a focus (especially in questioning for the government) on severability. I imagine some people have spoken about this,  but I will raise it again: Would severability make more sense and be easier if the Court properly conceptualized the question as enjoining enforcement of a provision rather than "striking down" a provision so it is as if the provision was not enacted? Would we have the same problem of whether the hypothetical Congress would have enacted the law? Or would it be easier if the Court could say "the entire law remains on the books, but the executive cannot enforce this provision while it enforces other provisions"?

Finally, only Justice Thomas asked about universal injunctions (along with state standing). Francisco suggested it was especially inappropriate in this type of case; Clement had the longest screed about percolation and disagreement and the problem of district courts deciding for the country; and Fischer suggesting that broader preliminary relief might be more appropriate than final relief. Fischer also referred to the various amici on the subject to suggest that non-particularized relief (even if it was not called universal or nationwide injunction) was available when the APA was enacted.

Posted by Howard Wasserman on May 6, 2020 at 01:31 PM in Howard Wasserman, Judicial Process | Permalink

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