Tag: SCOTUS

A Few Facts on Election Year Nominations and Confirmations to the Supreme Court

Given the “facts” that have been bandied about in the media since Justice Antonin Scalia’s death concerning presidential election year nominations and confirmations to the Supreme Court, I asked Anthony Gruzdis, our crack research assistant for the Center for Constitutional Studies, to do an exhaustive study of the subject, and here, in summary, are the most relevant facts.

It turns out that most election year resignations and deaths were in the pre-modern (pre-1900) era—many in the era before today’s two major parties were established. And the pre-1900 picture is further complicated by several multiple nominations and confirmations of the same person, both before and after the election, so it’s not until the modern era that we get a picture that is more clearly relevant and instructive for the current situation.

Looking at the history of the matter since 1900, then, until last week only four vacancies have occurred during an election year, two in 1916, one in 1932, and one in 1956. (Three more occurred during the previous year, in 1911, 1939, and 1987; the nominees in each case were confirmed, respectively, in February, early January, and early February of the election year that followed.) The first three were filled when the president’s party also controlled the Senate, so that’s not the situation we have now. And when Justice Sherman Minton resigned for health reasons on October 15, 1956, President Eisenhower made a recess appointment that same day of William J. Brennan, Jr., nominating him for the seat on January 14, 1957, for which Brennan was confirmed by voice vote on March 19, 1957. In 1956 the Senate was closely divided with 48 Democrats, 47 Republicans, and 1 Independent. In 1957 it was also closely divided with 49 Democrats and 47 Republicans, although in both cases the Southern Democrats often voted with the Republicans.

Spin Cycle: White House Spins SCOTUS Stay on Climate Plan

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with less cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

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As one of us has already noted, on Monday evening the Supreme Court voted 5-4 to put President Obama’s Clean Power Plan on ice—where it will remain until the justices get a chance to rule on the regulatory package themselves or until a new President sidelines it. The White House, whistling past a graveyard of unrecyclable solar panels (thanks to all the arsenic in them), blew up the vorticity of its spin cycle into relativistic speeds, calling it a “bump in the road” and a “temporary procedural issue.”

Over in the UK, Lisa Nandy, the shadow energy and climate minister knows why: “There is such strong support within the US for Obama’s efforts on climate change that I think this ruling will prove to be only a very temporary issue.”

Au contraire! According to a Yougov poll late last month, a grand total of 9 per cent of Americans think global warming is the most important issue confronting us. In only one country was there less support:  Saudi Arabia.

All of this ignores some facts on the ground. This is the biggest intervention by the Supremes in ongoing litigation since they stopped the partial Florida recount in December 2000 in the case that became Bush v. Gore. They only do stuff like this when there’s a lot at stake, irreparable harm will be done by not intervening, and at least five justices believe it more likely than not that the challenge will succeed.

You Ought to Have a Look: SCOTUS Stays Clean Power Plan, Paris Accord Imperiled, UN 1.5°C Nonsense.

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary. 

The big climate news of the week is, of course, that the U.S. Supreme Court put a stay on the EPA’s Clean Power Plan until the Plan’s detractors have their day in court.

Cato’s Ilya Shapiro summarized the situation succinctly:

The Supreme Court’s stay of the Clean Power Plan is a welcome development. The regulations constitute an unprecedented assertion of agency authority – particularly the dubious invocation of Section 111 of the Clean Air Act to justify regulating power-plant emissions – so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.

And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.

Lots has been written on it.  In addition to Ilya’s, below is a sampling of others offering good insights. There are many more, and we apologize to those whose comments should have made this list but were left off (through negligence or space).

The Force Against Hawaii’s Unconstitutional Election Awakens

After the Supreme Court blocked Hawaii’s race-based election pending appeal, its organizers—a government contractor named Na’i Aupuni—canceled it and decided instead to seat all the candidates as delegates to a special constitutional convention for the purported new nation of “native Hawaiians.” The plaintiffs have asked the Supreme Court to find the election/convention organizers in contempt of its earlier order. Meanwhile, the appeal of the district court’s earlier denial of an injunction proceeds in the U.S. Court of Appeals for the Ninth Circuit. Cato has joined the American Civil Rights Union on a brief supporting the challengers. We point out that this is the second time that Hawaii has attempted to conduct a discriminatory voter-registration procedure to facilitate a racially exclusionary election. The first time this occurred, the Supreme Court held that such elections violate the Constitution. Rice v. Cayetano (2000). Things are no different this time. The voter qualification requirements here again make eligibility contingent on ancestry and bloodlines, which are nothing more than proxies for race. (There’s a further requirement that voters affirm a belief in the “unrelinquished sovereignty of the Native Hawaiian people,” which is an ahistorical assertion.) Such a discriminatory scheme is per se unconstitutional under the Fifteenth Amendment.

Government Can’t Censor Digital Expression Just Because Someone Somewhere Might Use It for Unlawful Purposes

It’s alas old news when the government couples an imposition on liberty with an exercise in futility—security theater, anyone?—but it’s still finding inventive ways to do so in a nifty case that combines the First Amendment, the Second Amendment, and 3D printing.

Defense Distributed, a nonprofit organization that promotes popular access to constitutionally protected firearms, generates and disseminates information over the Internet for a variety of scientific, artistic, and political reasons. The State Department has ordered the company to stop online publication of certain CAD (Computer-Aided Drafting) files—complex three-dimensional printing specifications with no intellectual-property protection—even domestically. These files can be used to 3D-print the Liberator, a single-shot handgun. The government believes that the files that could be used to print the Liberator are subject to the International Trafficking in Arms Regulations, because they could be downloaded by foreigners and thus are “exports” of arms information that could cause unlawful acts.

Court Denies Insider Trading Appeal

This week the New York Times reports that the Supreme Court has refused to review the ruling of the Second Circuit Court of Appeals in the case United States v Newman. The Second Circuit, in December, overturned the insider trading conviction of a pair of hedge fund managers because nothing of value was exchanged in return for the information and thus the managers could not have known that the information they received was improperly disclosed to them by the information source.  The Supreme Court decision would seem to block insider trading prosecutions in the absence of clear financial gains to those who leak the information.

This, in turn, has energized some members of Congress to introduce legislation to make it illegal to trade on insider information regardless of how one obtains it. This standard would define insider trading far more broadly than the standard laid out in Newman, or, for that matter, even before Newman based on the precedent in Dirks v SEC.

In his article in the current issue of Regulation, Villanova University law professor Richard Booth explores the Newman ruling.  He argues that ordinary diversified investors neither lose nor gain from insider trading because they own all stocks and don’t trade very often.  The only investors who have an interest in the prosecution of insider trading are “activist investors – hedge funds and corporate raiders – who stand to benefit from slower reaction times as they buy up as many shares as possible before anyone notices.”  “… [H]edge fund managers have a distinct interest in seeing other hedge fund managers prosecuted for insider trading.”  They rather than ordinary investors are the beneficiaries of insider-trading prosecutions.  Thus ordinary investors should applaud the Newman ruling and oppose the attempts by Congress to adopt a European-style law against all insider trading.

For more Cato work on insider trading, see these links.

Research assistant Nick Zaiac contributed to this post.

 

Statement on Supreme Court Granting Cert in King v. Burwell

I applaud the Supreme Court’s decision to grant certiorari in King v. Burwell.

Since January, the Obama administration has been spending billions of unauthorized federal dollars, and subjecting nearly 60 million Americans to unauthorized taxes, all to hide the full cost of the Patient Protection and Affordable Care Act, or ObamaCare. The administration’s actions have not only violated the law and caused massive economic disruption, they have also subverted the democratic process. The plaintiffs in Pruitt v. BurwellHalbig v. Burwell, King v. Burwell, and Indiana v. IRS seek to put an end to those unlawful taxes and spending.

The Supreme Court’s decision is a rebuke to the Obama administration and its defenders, who dismissed as frivolous the plaintiffs’ efforts to defend their right not to be taxed without congressional authorization.

It is essential that these cases receive expedited resolution, if only to eliminate the uncertainty currently facing states, employers, insurers, and taxpayers.

Most important, these cases deserve expedited consideration because only they can bring an end to the greatest domestic-policy scandal of this administration.

Click here for reference materials on these cases, including all court filings and judicial opinions. Click here for news and opinion coverage of these cases.