Yes, everyone is awaiting Thursday's hearing with Supreme Court nominee Brett Kavanaugh and his accuser Christine Blasey Ford giving their sides of the story of alleged sexual assault. Four days later: the Supreme Court will convene its fall term. We give you a quick rundown of cases the court will consider this term that will challenge court precedents—a topic that dominated Kavanaugh's first round of hearings. Plus, some words from retired Justice Anthony Kennedy, who has been fairly quiet since he retired on July 31.

Thanks for reading, and we welcome feedback at [email protected] and [email protected].

 

Coming Soon: Pick Your Precedent

 

No matter what happens at Brett Kavanaugh's hearing tomorrow—and the Senate Judiciary Committee vote on Friday morning—his first round of hearings in early September will be remembered as a paean to precedent.

“Precedent is the foundation of our system, it's part of the stability, it's ensuring predictability and it's just foundational to the Constitution,” Kavanaugh told the Senate Judiciary Committee on Sept. 5. “People who order their affairs around judicial decisions need to know that the law is predictable.”

With that as backdrop, it was interesting to hear U.S. Solicitor General Noel Francisco on September 21 as he previewed the upcoming term of the court. “I think one early theme that we see is the court's willingness to revisit precedents in some important areas of law,” Francisco told a Federalist Society audience.

Watch the video here on YouTube.

Francisco's own future is in flux—he might take over at least some of Rod Rosenstein's portfolio if Rosenstein leaves the Justice Department. But here are the three precedent-challenging cases Francisco mentioned, each of which could provide an early test of the current court's fealty to precedent:

➤➤ Knick v. Township of Scott, Pennsylvania, a case Francisco is planning to argue on Oct. 3 as an amicus in favor of overturning or clarifying the often-criticized Williamson County Rule. That 1985 precedent requires plaintiffs in takings cases to exhaust remedies in state courts before going to federal court. The takings case before the court challenges a local law that gives the public access to private cemeteries. “Let's stay tuned to see if Williamson County ends up in the graveyard,” Francisco quipped.

➤➤ Gamble v. United States, a test of the 150-year-old dual sovereignty exception to the Double Jeopardy Clause—which allows state and federal government to prosecute someone successively for the same offense. So far, the United States is urging the court to hang onto the precedent. “Justices Ginsburg and Thomas, a somewhat odd couple, suggested that the Dual Sovereignty Doctrine bears fresh examination in an appropriate case,” Francisco said. No date has been set for argument.

➤➤ Franchise Tax Board of California v. Hyatt, a repeat customer at the Supreme Court that challenges Nevada v. Hall, a 1979 precedent holding that states are not immune from being sued in other states. The case went before the court after Justice Antonin Scalia died in 2016, and ended with a 4-4 tie. No date has been set for the sequel. The United States does not have a dog in this fight, but Francisco noted that “In true bipartisan spirit, 45 [states], including Nevada itself, have signed an amicus brief supporting California's call to overrule the Hall decision.”

Clearly, these three precedents are not in the same category as Roe v. Wade or other widely known decisions. But each has important ramifications in its own field of law. Francisco has teed up the cases that will take the precedential temperature of all justices this term, whether or not Kavanaugh is one of the nine.

 

Anthony Kennedy Praises the Integrity of Judge … Charles Breyer!

 

Retired Justice Anthony Kennedy has been fairly quiet since leaving the court on July 31. But he did speak out recently—not about his successor, but about the winner of the Devitt Award, viewed as the highest honor bestowed on an Article III federal judge.

And the winner is: Judge Charles Breyer (above) of the U.S. District Court for the Northern District of California, also known as Justice Stephen Breyer's younger brother.

Kennedy is chairman of the selection committee for the award, which is sponsored by the Dwight D. Opperman Foundation. Other members of the selection committee included Judge Raymond Kethledge of the United States Court of Appeals for the Sixth Circuit and Judge Lucy Koh of the United States District Court for the Northern District of California.

Kennedy's statement in announcing the award:

“The committee and I are fascinated and inspired by the integrity, the commitment and the dedication of federal judges throughout the country. The committee noted that in addition to his nationwide reputation as being a skilled and fine trial judge, he has contributed to the judiciary in many ways including being on the panel for multi-district litigation and on the United States Sentencing Commission. Most important of all is the great respect that Judge Breyer enjoys among his own colleagues, members of the bar and the community at large. He honors us all by his continued commitment to the Rule of Law and the Constitution that it sustains.”

Almost sounds like Supreme Court material, no? It would be interesting to have two Justice Breyer's on the court at the same time. “I am honored to accept the Devitt Award,” Judge Breyer said in a statement. “Even more so, I feel very privileged to have worked with so many selfless and dedicated colleagues over the past two decades. Their work in promoting the Rule of Law is the true award.”

As usual, the Devitt award ceremony will take place at the Supreme Court, with justices attending. Date for the festivities is Nov. 7.

 

Supreme Court Reading List

 

>> Awaiting a ninth justice, the Supreme Court tinkered with its docket.

>> There were several topics Brett Kavanaugh didn't touch in his Fox News interview the other night. Here's some analysis from body language experts.

>> “I will not be intimidated into withdrawing from this process,” Kavanaugh said in a letter to the Senate Judiciary Committee.

>> The Washington Post has this report: “How Clarence Thomas's fury saved his Supreme Court nomination.”