No News Is No News

The Court did not issue Heller today, which means it will do so Wednesday (or Thursday if, as expected, it does not get through its 7 remaining opinions on Wednesday). The encouraging news from today is that Heller is the only opinion outstanding from the cases argued in March, and Justice Scalia is the only justice who has not yet written a majority opinion from that sitting. That’s no guarantee, but the smart money is he will be the author.


The discouraging news from today is that the Court denied cert in Baylor v. United States, a federalism case in which Cato filed an amicus brief. Briefly, we supported a pizza‐​shop robber who was prosecuted not in state court for, say, robbery, but in federal court for “interfering with interstate commerce” and therefore violating the “Hobbs Act” (a 1946 anti‐​racketeering law). The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria got its flour, sauce, and cheese from various states outside Ohio. We argued that prosecuting robberies that have such an attenuated effect on interstate commerce destroys the line between the states’ power to punish violent crime and Congress’s power to regulate interstate markets.


Also not decided today were Davis v. FEC, the “millionaires’ amendment” campaign finance case in which we also filed a brief, and Exxon v. Baker, where $1.5 billion in punitive damages is at stake over a super‐​technical application of maritime law.