Panel at GW Law Previews Supreme Court's Upcoming Term

Legal experts discussed cases on the docket and how a Justice Kavanaugh would change the court.

September 25, 2018

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By Tatyana Hopkins

The upcoming U.S. Supreme Court term is packed with cases that will require the nation’s highest court to revisit and reexamine prevailing precedent on long-standing rulings, panelists said at a GW Law briefing.

Alan Morrison, the GW Law associate dean for public interest and public service, moderated the panel of legal experts that included Jonathan Turley, J.B. and Maurice Shapiro Professor of Public Interest Law; Gregory Garre, JD ’91, a former U.S. solicitor general; and Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.

Below are issues and cases the panel of experts discussed at the preview of the court’s upcoming term, which begins Oct. 1:

Nomination of Judge Brett M. Kavanaugh

How might his vote change outcomes in cases likely to be heard by the court? How much will his record in the District of Columbia Circuit tell us about what he will do as a justice?

United States Appeals Court Judge Brett M. Kavanaugh has been nominated by President Donald Trump to replace retired Supreme Court Justice Anthony Kennedy. Justice Kennedy, nominally a part of the court’s conservative wing, had been the swing vote on many of the court’s most contentious issues including the rulings that legalized same-sex marriage, preserved Roe v. Wade and weakened the Voting Rights Act.

“Kavanaugh is not Kennedy,” Mr. Turley said.

He said if confirmed, Mr. Kavanaugh would incrementally move the court to the right and lock in its conservative majority for a long period of time.

“He could have pronounced impact,” Mr. Turley continued.  

Ms. Ifill, a longtime civil rights advocate, said Mr. Kavanaugh would likely seek to overturn a number of decisions marked as “wins” for the civil rights community such as Roe v. Wade, which deemed laws restricting access to abortion to be unconstitutional.

"I would be shocked if he were not the vote to overturn it," she said. "I would say affirmative action, disparate impact, voting rights and abortion all are in peril." 

However, Mr. Garre said Mr. Kavanaugh’s record suggests that he will not be on the “extreme end of the conservative wing,” but will fall “somewhere in the middle.” He also said Chief Justice John Roberts is ultimately the lead actor in determining how far and fast the court goes.

“The chief justice has shown that he is willing to buck the other conservative justices on hot-button, high-profile issues and that he's particularly sensitive to public perceptions of the court,” he said.

Gamble v. United States

Should the “separate sovereigns” exception to the double jeopardy clause be overruled?

In this case, the state of Alabama convicted Terrance Martez Gamble for possession of a firearm as a convicted felon, and soon after the federal government prosecuted and sentenced him for the same crime.

As recently as 2016, the Supreme Court has held under the separate sovereigns doctrine that a person can be prosecuted for the same criminal offense in state and federal courts without violating the Fifth Amendment double jeopardy principles because the two systems operate as separate governments.

Gamble is the big-ticket item,” Mr. Turley said of the case’s potential to have substantial impact.

He said the case has sparked debate in the legal field—with one side arguing the doctrine “guts double jeopardy,” noting that it was adopted before the Fifth Amendment was incorporated, and the other arguing that without the doctrine state and federal prosecutors would jump to try cases and undermine one another.

"It's going to force the court back to first principles—what is it that framers truly intended here, and are we in a place where we are carrying out that intent,” Mr. Turley said.

Ms. Ifill said federal statues empowering the federal government to bring federal civil rights charges for a deprivation of civil rights of an individual under state law are important tools for civil rights litigation and elimination of them would put future civil rights cases in jeopardy.

“We have these federal civil rights statutes because the presumption is that the state system may fail or the state may abdicate its responsibility to protect the civil rights of racial minorities,” she said.  

Gundy v. United States

Are there limits to what Congress can delegate to the executive branch?

Brought by a convicted sex offender, this case seeks to determine whether Congress’ delegation of authority to the U.S. attorney general to impose new regulations of the Sex Offender Notification and Registration Act on those convicted before the statute was enacted violates the nondelegation doctrine. The doctrine prevents branches of government from authorizing other entities from exercising powers it is authorized to have. 

“This is a quite unusual case,” Mr. Morrison said. “The Supreme Court has not held that Congress has excessively delegated legislative power in any statute since 1935.”

He noted that the court had previously received at least 15 case requests on the issue, but declined to review them all before accepting this case. He said the issue of separation of powers has presented itself in recent cases on immigration policy as well as Mr. Trump’s ability to impose tariffs on steel and aluminum.  

“We are in a moment where a number of longstanding irritants are being teed up in the court,” Ms. Ifill said. “I think there are a number of justices who feel they have been on the court long enough to where they are ready to take on and address some of these things that have been percolating for a long time.”

Mr. Turley said the nondelegation argument has, in some instances, been used as a vehicle to limit the discretion of executive agencies, and this case could lay the foundation to make that application broader.

“The nondelegation issue has been a sleeper, but it's been something that everyone talks about because if you wake this thing up, it could really rampage through existing case law,” he said.

Obduskey v. McCarthy

Does the Fair Debt Collection Act apply to non-judicial foreclosure proceedings?

Federal circuit courts have split on whether non-judicial foreclosure proceedings can be covered under the Fair Debt Collection Act, which outlaws abusive and deceptive debt collection tactics, as an increasing number of lenders move away from the courts and hire lawyers to manage the foreclosure process.

“It looks like a garden-variety statutory interpretation case, but the significance of this case is huge,” Ms. Ifill said.

Noting that mortgages account for two-thirds of nationwide debt, and 1.5 million people are seriously delinquent on their mortgages, she said the ruling on this case could have vast impact on the lives of average Americans. She stated that studies showed that non-judicial foreclosures are more likely to result in foreclosure than judicial proceedings.

She said if the court decided non-judicial foreclosures were not covered under the law, many people in the country would be left “uncovered by the protections of abusive debt collection practices that the act is designed to implement.”

Mr. Garre said this case is a more straightforward example of disputes about statutory interpretation for the court.

“I wouldn't be at all surprised if justices don't break down into the conventional liberal or conservative points of view,” he said.