On September 26, amid controversy over the US Supreme Court nomination of Judge Brett Kavanaugh, Gibson, Dunn & Crutcher partner Allyson Ho; Latham & Watkins partner Melissa Arbus Sherry; and New York Times Magazine staff writer Emily Bazelon joined Professor Troy McKenzie ’00 in a Latham & Watkins Forum for a discussion of the issues that the Supreme Court will be facing in the term ahead.

Bazelon started off by addressing the sexual assault allegations against Kavanaugh, which the nominee denies, and their effects on the confirmation process. (Christine Blasely Ford, who accused Kavanaugh of assault, and Kavanaugh were scheduled to testify before the US Senate Judiciary Committee the day following the Forum.) “There are big questions about what a fair and deliberative confirmation process looks like,” Bazelon said. She noted that from the Republican point of view, Ford’s allegations were a late-breaking attempt to derail the confirmation process, while from the perspective of the Democrats, holding a confirmation vote without fully investigating the allegations would reflect poorly not just on the nominee but on the process as well.

Troy McKenzie '00McKenzie, whose areas of research include bankruptcy, civil procedure, class actions, complex litigation, and federal courts, observed that it’s often said that each time a justice leaves or joins the Court, a new Court is formed. And regardless of the composition of the Court, this term the justices will be looking at a number of potentially groundbreaking cases.

Three cases this term will ask the Court to overrule precedent, noted Sherry, who is a member of Latham’s Supreme Court and appellate practice. Knick v. Township of Scott, Pennsylvania will ask the Court to revisit a ruling that requires property owners to exhaust state court remedies before bringing takings cases—litigation over government seizure of private property for public use—in federal court. In Gamble v. US, the Court will consider overruling the “separate sovereigns” exception to the double jeopardy clause, a doctrine that allows criminal prosecution in both state and federal court. Finally, in Franchise Tax Board of California v. Hyatt, the Court will consider whether states have sovereign immunity in other state courts in a case that could potentially overturn Nevada v. Hall.

Several cases from last term spoke to what McKenzie described as the “uneasy state of the administrative state.” Ho, who leads Gibson, Dunn’s appellate and constitutional law practice, noted that an upcoming case looks at the administrative state in the context of criminal law—specifically, the regulation of sex offenders. Gundy v. US, she explained, challenges a provision of the federal Sex Offender Registration and Notification Act as a violation of the nondelegation doctrine, because it gives the attorney general leeway to decide how to apply the law to sex offenders convicted before its passage. The nondelegation doctrine forbids Congress from delegating its regulatory authority to another branch of the government.

A question from a student in the audience raised the issue of political polarization on the Court. McKenzie noted that earlier in the Court’s history, appointments were often political—sometimes as a favor, sometimes to prevent a justice’s candidacy for another role—but weren’t necessarily made along party lines.

The same cannot be said for today. The polarization of the political parties is clearly having an effect on the confirmation process, Bazelon said. The late Justice Antonin Scalia was confirmed with 98 votes, Justice Ruth Bader Ginsburg with 96 votes, and even Chief Justice John Roberts was confirmed by a vote of 78-22, while Justices Elena Kagan and Sonia Sotomayor were confirmed by slimmer margins, Judge Merrick Garland’s nomination never came to a vote, and Justice Neil Gorsuch was confirmed by a 54-45 vote. “There has been a pretty fundamental shift in recent years,” said Sherry.

Posted October 4, 2018