Judicial Branch

The three themes that dominated the third day of Judge Kavanaugh’s confirmation hearings were the same three topics discussed at length the day before:  executive power, abortion, and gun rights. Executive power received the most attention.

Making headlines were Senator Booker’s release of “committee confidential” Kavanagh emails discussing abortion and racial-profiling before they were cleared for release to the public, Judge Kavanaugh’s refusal to say whether he thinks Roe v. Wade was decided correctly, and his refusal to condemn President Trump’s attacks on the judiciary.  

Issues related to state and local governments received a little attention, including judicial deference to federal agencies, which was discussed a number of times the day before.

If you were interested in the views of protesters, the details of the Federalist papers, Judge Kavanaugh’s most difficult job (working construction at age 16), and a broad ranging discussion of executive power, day two of Judge Kavanaugh’s confirmation hearings weren’t disappointing.

But if you were interested in knowing Judge Kavanaugh’s views on issues of importance to state and local governments you may have been disappointed. Generally, Supreme Court nominees give little away about their actual views on the law. Judge Kavanaugh was no exception. But he also wasn’t asked many hard hitting questions on legal issues of importance to state and local governments--with the exceptions of the expected questions on abortion and gun rights.

The nomination of Judge Brett Kavanaugh to the Supreme Court has touched off a battle between Republicans eager to reshape the court by moving Justice Anthony Kennedy’s “swing seat” to the right and Democrats desperate to ensure that any change is minimal. Much of the national conversation on a “Justice” Kavanaugh centers around his potential views on the social issues for which Kennedy was the swing vote, particularly abortion and overturning Roe v. Wade. Kavanaugh is something of an enigma on the issue: He stated at his confirmation hearing for the D.C. Circuit Court of Appeals that he was bound by Roe v. Wade as precedent. But he named Chief Justice Rehnquist (who dissented in Roe) as a judicial hero, and he voted to uphold restrictions on abortion in certain situations while on the lower court.

Chapter 5 of The Book of the States 2018 contains the following tables:

As of the end of July, U.S. Supreme Court Justice Anthony Kennedy is retired. For many state and local governments he will be forever remembered as the justice who championed allowing online sales tax collection.
In March 2015, Kennedy wrote that the “legal system should find an appropriate case for this Court to reexamine Quill,” which held that businesses without a physical presence in the state did not have to collect sales tax. In his last majority opinion on the bench, South Dakota v. Wayfair, the Supreme Court overturned Quill.

What happens to our emails when we die? If Yahoo has its way, the Supreme Court will soon tell us.

Yahoo, under the name of Oath Holdings, Inc., filed a petition for a writ of certiorari with the Supreme Court in January. This came on the heels of an October 2017 decision by the Massachusetts Supreme Judicial Court in Ajemian v. Yahoo!,...

State chief justices are not only the leaders of an individual appellate court, but often exercise leadership and administrative authority over an entire state’s judicial branch. How far that authority goes and how individual chief justices exercise that leadership varies and may change depending on whether the chief justice is addressing leadership of their individual appellate court or as a leader in the justice system as a whole.

Chapter 5 of The Book of the States 2017 contains the following articles and tables:

This article discusses eight Supreme Court cases of interest to states during the 2016–17 term. This term lacks any blockbuster cases at least partially due to being down a Justice most of the term. The court will decide three First Amendment cases (one religion, two speech), one education case, one preemption case, and a few other interesting but narrow cases.

In Kindred Nursing Centers v. Clark the Supreme Court held 7-1 that an arbitration agreement entered into by a power of attorney may still be valid even if the power of attorney doesn’t specifically say the representative may enter into arbitration agreements.

Beverly Wellner and Janis Clark moved their husband and mother, respectively, into a nursing home using their powers of attorney. Both wanted to sue the nursing home in court after their relative died. But both had signed contracts stating that any claims would be resolved through arbitration.

The Kentucky Supreme Court concluded that Wellner’s power of attorney wasn’t broad enough to allow her to enter into an arbitration agreement but Clark’s was. Regardless, the court held that both arbitration agreements were invalid because “a power of attorney could not entitle a representative to enter into an arbitration agreement without specifically saying so.” According to the Kentucky Supreme Court, this is because the right to a jury trial under the Kentucky Constitution is the only right declared “sacred” and “inviolate.”

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