Category: reason

Kavanaugh v. Gorsuch

This morning’s New York Times features a front-page story by Adam Liptak noting that President Trump’s two Supreme Court nominees—Justices Neil Gorsuch and Brett Kavanaugh—disagree more than one might expect. He writes:

Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Justice Gorsuch has a folksy demeanor and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel A. Alito Jr., the court’s most conservative members.

Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court. . . .

The differences between the two justices are not only stylistic, as a March decision in a maritime case illustrated. Writing for the majority, Justice Kavanaugh announced a three-part test to determine when manufacturers may be sued over the injuries their products played a role in causing. In dissent, Justice Gorsuch said he preferred a bright-line rule to a fuzzy test that he said created uncertainty and unfairness.

As if to prove Liptak’s point, today the Supreme Court decided Apple Inc. v. Pepper, an antitrust case concerning whether iPhone owners are direct purchasers for the purposes of antitrust law who are able to sue Apple for alleged monopolization. In a 5-4 decision, the Court ruled in favor of the plaintiffs. Justice Kavanaugh wrote the majority opinion (joined by the Court’s liberal justices), while Justice Gorsuch wrote the dissent.

That’s not all. The Court GVRed (granted, vacated and remanded) Myers v. United States, an Armed Career Criminal Act (ACCA) case. This was also 5-4. This time, it was Justice Gorsuch who joined the Court’s liberals, while Justice Kavanaugh joined the Chief Justice’s dissent.

Also today, Justice Kavanaugh joined Justice Alito’s dissent from denial of certiorari in Dahne v. Richey. Justice Gorsuch did not. At the same time, Justice Gorsuch joined Justice Alito’s denial of the Court’s grant of a stay in Murphy v. Collier, and Justice Thomas’s opinion concurring in the denial of certiorari in Price v. Dunn. Justice Kavanaugh did not.

There is no question that both Justices share a generally conservative jurisprudence, and are likely to vote together in many important cases (as they did today in another 5-4 decision, Franchise Tax Board of California v. Hyatt), but they are anything but clones of one another. They different on many issues before the Court today, and are likely to do so again in the future.

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Kavanaugh v. Gorsuch

This morning’s New York Times features a front-page story by Adam Liptak noting that President Trump’s two Supreme Court nominees—Justices Neil Gorsuch and Brett Kavanaugh—disagree more than one might expect. He writes:

Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Justice Gorsuch has a folksy demeanor and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel A. Alito Jr., the court’s most conservative members.

Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court. . . .

The differences between the two justices are not only stylistic, as a March decision in a maritime case illustrated. Writing for the majority, Justice Kavanaugh announced a three-part test to determine when manufacturers may be sued over the injuries their products played a role in causing. In dissent, Justice Gorsuch said he preferred a bright-line rule to a fuzzy test that he said created uncertainty and unfairness.

As if to prove Liptak’s point, today the Supreme Court decided Apple Inc. v. Pepper, an antitrust case concerning whether iPhone owners are direct purchasers for the purposes of antitrust law who are able to sue Apple for alleged monopolization. In a 5-4 decision, the Court ruled in favor of the plaintiffs. Justice Kavanaugh wrote the majority opinion (joined by the Court’s liberal justices), while Justice Gorsuch wrote the dissent.

That’s not all. The Court GVRed (granted, vacated and remanded) Myers v. United States, an Armed Career Criminal Act (ACCA) case. This was also 5-4. This time, it was Justice Gorsuch who joined the Court’s liberals, while Justice Kavanaugh joined the Chief Justice’s dissent.

Also today, Justice Kavanaugh joined Justice Alito’s dissent from denial of certiorari in Dahne v. Richey. Justice Gorsuch did not. At the same time, Justice Gorsuch joined Justice Alito’s denial of the Court’s grant of a stay in Murphy v. Collier, and Justice Thomas’s opinion concurring in the denial of certiorari in Price v. Dunn. Justice Kavanaugh did not.

There is no question that both Justices share a generally conservative jurisprudence, and are likely to vote together in many important cases (as they did today in another 5-4 decision, Franchise Tax Board of California v. Hyatt), but they are anything but clones of one another. They different on many issues before the Court today, and are likely to do so again in the future.

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D.C. Bill Would Let Regular Citizens Issue Parking Tickets

If you follow enough transportation advocates or local government agencies in the Washington, D.C. area on Twitter, chances are you’ve seen tweets like these:

Wherever a car parks too close to a crosswalk, a fire hydrant is blocked, or a bike lane is intruded upon, code enforcing vigilantes are quick to snap a photo and tag the relevant local department demanding action be taken against the offending motorist.

Soon enough these bike lane Batmen might get to play police for real under a proposed pilot program that would give citizens the ability to ticket each other for parking violations.

Last week, D.C. City Councilmember Charles Allen introduced a new Vision Zero omnibus traffic safety bill that adopts the ambitious goal of eliminating traffic fatalities in the District.

In 2018, 34 people died on the District’s roadways, including 15 pedestrians, eight motorcyclists, seven people in cars, three bicyclists, and one scooter rider, according to data parsed by DCist.

In order to bring that number down to zero, Allen’s bill would change up road rules to lower speed limits, create more four-way stop signs, ban right-on-red turns, and increase penalties for those found violating any of these rules.

More broadly, Allen’s bill would commit the city to reduce car trips to just 25 percent of all commuter trips by 2032, down from 39 percent in 2017, according to Census Bureau data.

As an extra means of enforcement, Allen’s bill would direct the city’s Department of Public Works (DPW) to establish a Citizen Safety Enforcement Pilot Program. Under the pilot program—which would run for one year—10 citizens from each of the District’s eight wards would be authorized to ticket drivers parked illegally.

After first being trained in D.C. traffic laws, these 80 vigilantes would be given access to a DPW-created app, which they would then use to submit photos of cars blocking crosswalks, bike lanes, fire hydrants, or the city’s singular streetcar line.

Submission of a photo through the app would be treated as if it were a police officer or other city official issuing the violating driver a ticket.

While the goal of increased road safety is laudable, one can imagine a lot going wrong with the panopticon-like citizen-operated surveillance system that Allen’s bill would create.

Road rules, even the ones most necessary for public safety, require a little bit of flex and discretion when it comes to enforcement.

One can easily imagine those who sign up to ticket their fellow citizens being a little overzealous. There’s also the possibility that those with access to this app would let personal prejudices and self-interest influence which cars they decide to ticket or even which violations they go searching for.

Unlike city employees, whose enforcement activities can be restrained or redirected by an internal set of rules and informal practices, these new citizen parking enforcers would be accountable to no one. Citizen meter maids would be penalized only for submitting false information through the app or for letting an unauthorized person use it.

In essence, D.C.’s new traffic safety bill would seemingly empower a nation of narcs to ticket any violation they come across, regardless of how necessary that might be.

Allen introduced his Vision Zero Omnibus Bill on Tuesday of last week. No votes or hearings have been held on it yet, but according to WTOP, several council members have already signaled their support for it.

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D.C. Bill Would Let Regular Citizens Issue Parking Tickets

If you follow enough transportation advocates or local government agencies in the Washington, D.C. area on Twitter, chances are you’ve seen tweets like these:

Wherever a car parks too close to a crosswalk, a fire hydrant is blocked, or a bike lane is intruded upon, code enforcing vigilantes are quick to snap a photo and tag the relevant local department demanding action be taken against the offending motorist.

Soon enough these bike lane Batmen might get to play police for real under a proposed pilot program that would give citizens the ability to ticket each other for parking violations.

Last week, D.C. City Councilmember Charles Allen introduced a new Vision Zero omnibus traffic safety bill that adopts the ambitious goal of eliminating traffic fatalities in the District.

In 2018, 34 people died on the District’s roadways, including 15 pedestrians, eight motorcyclists, seven people in cars, three bicyclists, and one scooter rider, according to data parsed by DCist.

In order to bring that number down to zero, Allen’s bill would change up road rules to lower speed limits, create more four-way stop signs, ban right-on-red turns, and increase penalties for those found violating any of these rules.

More broadly, Allen’s bill would commit the city to reduce car trips to just 25 percent of all commuter trips by 2032, down from 39 percent in 2017, according to Census Bureau data.

As an extra means of enforcement, Allen’s bill would direct the city’s Department of Public Works (DPW) to establish a Citizen Safety Enforcement Pilot Program. Under the pilot program—which would run for one year—10 citizens from each of the District’s eight wards would be authorized to ticket drivers parked illegally.

After first being trained in D.C. traffic laws, these 80 vigilantes would be given access to a DPW-created app, which they would then use to submit photos of cars blocking crosswalks, bike lanes, fire hydrants, or the city’s singular streetcar line.

Submission of a photo through the app would be treated as if it were a police officer or other city official issuing the violating driver a ticket.

While the goal of increased road safety is laudable, one can imagine a lot going wrong with the panopticon-like citizen-operated surveillance system that Allen’s bill would create.

Road rules, even the ones most necessary for public safety, require a little bit of flex and discretion when it comes to enforcement.

One can easily imagine those who sign up to ticket their fellow citizens being a little overzealous. There’s also the possibility that those with access to this app would let personal prejudices and self-interest influence which cars they decide to ticket or even which violations they go searching for.

Unlike city employees, whose enforcement activities can be restrained or redirected by an internal set of rules and informal practices, these new citizen parking enforcers would be accountable to no one. Citizen meter maids would be penalized only for submitting false information through the app or for letting an unauthorized person use it.

In essence, D.C.’s new traffic safety bill would seemingly empower a nation of narcs to ticket any violation they come across, regardless of how necessary that might be.

Allen introduced his Vision Zero Omnibus Bill on Tuesday of last week. No votes or hearings have been held on it yet, but according to WTOP, several council members have already signaled their support for it.

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You Can Now Legally Possess Nunchucks in Arizona

Arizona’s Republican Governor Doug Ducey signed a bill on Friday to remove nunchucks from the state’s list of deadly weapons.

The deadly weapons list is intended for items that are specifically “designed for lethal use.” Because nunchucks were included on the list, their ownership was illegal for most Arizonans. While there was an “understanding,” of sorts, that nunchucks were legal for martial arts competitions, nunchuck owners previously worried that a misunderstanding during transportation could lead to charges.

“It’s good to know that nobody’s going to get arrested for carrying their nunchucks to their training,”  Shawn Sample, a karate instructor in Phoenix, told AZfamily. Sample also observed that the ban made little sense in a state where open-carry of firearms is legal. 

Whether the Second Amendment protects nunchuck ownership is a hot question right now. In December 2018, the 2nd Circuit Court of Appeals in New York overturned the state’s 44-year-old nunchuck ban, citing D.C. v. Heller, which affirmed an individual’s right to possess a weapon that was both “common use” and “typically possessed by law-abiding citizens for lawful purposes.”

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You Can Now Legally Possess Nunchucks in Arizona

Arizona’s Republican Governor Doug Ducey signed a bill on Friday to remove nunchucks from the state’s list of deadly weapons.

The deadly weapons list is intended for items that are specifically “designed for lethal use.” Because nunchucks were included on the list, their ownership was illegal for most Arizonans. While there was an “understanding,” of sorts, that nunchucks were legal for martial arts competitions, nunchuck owners previously worried that a misunderstanding during transportation could lead to charges.

“It’s good to know that nobody’s going to get arrested for carrying their nunchucks to their training,”  Shawn Sample, a karate instructor in Phoenix, told AZfamily. Sample also observed that the ban made little sense in a state where open-carry of firearms is legal. 

Whether the Second Amendment protects nunchuck ownership is a hot question right now. In December 2018, the 2nd Circuit Court of Appeals in New York overturned the state’s 44-year-old nunchuck ban, citing D.C. v. Heller, which affirmed an individual’s right to possess a weapon that was both “common use” and “typically possessed by law-abiding citizens for lawful purposes.”

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Supreme Court Majority Speaks Against “Ahistorical Literalism”

Hyatt argues that we should find no right to sovereign immunity in another State’s courts because no constitutional provision explicitly grants that immunity. But this is precisely the type of “ahistorical literalism” that we have rejected when “interpreting the scope of the States’ sovereign immunity since the discredited decision in Chisholm.” Alden, 527 U.S., at 730; see id., at 736 (“[T]he bare text of the Amendment is not an exhaustive description of the States’ constitutional immunity from suit”). In light of our constitutional structure, the historical understanding of state immunity, and the swift enactment of the Eleventh Amendment after the Court departed from this understanding in Chisholm, “[i]t is not rational to suppose that the sovereign power should be dragged before a court.” Elliot’s Debates 555 (Marshall).

Indeed, the spirited historical debate over Article III courts and the immediate reaction to Chisholm make little sense if the Eleventh Amendment were the only source of sovereign immunity and private suits against the States could already be brought in “partial, local tribunals.” Elliot’s Debates 532 (Madison). Nor would the Founders have objected so strenuously to a neutral federal forum for private suits against States if they were open to a State being sued in a different State’s courts. Hyatt’s view thus inverts the Founders’ concerns about state-court parochialism. Hall, supra, at 439 (Rehnquist, J., dissenting).

Moreover, Hyatt’s ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U.S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U.S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U.S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.

I have no firm opinion on the proper scope of constitutional sovereign immunity, and it may be that the dissent has the better view of that scope than the majority does. But I wanted to quote this passage, because it’s a reminder that none of the Justices on the Court is a pure textualist: They all consider at least the text, the original meaning, and “historical practice.” And that is in large part because the Constitution is widely understood as having been enacted against a backdrop of established law and practice, and therefore in some measure implicitly adopting aspects of that law and practice, rather than being limited to what is within the four corners of the document.

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Supreme Court Majority Speaks Against “Ahistorical Literalism”

Hyatt argues that we should find no right to sovereign immunity in another State’s courts because no constitutional provision explicitly grants that immunity. But this is precisely the type of “ahistorical literalism” that we have rejected when “interpreting the scope of the States’ sovereign immunity since the discredited decision in Chisholm.” Alden, 527 U.S., at 730; see id., at 736 (“[T]he bare text of the Amendment is not an exhaustive description of the States’ constitutional immunity from suit”). In light of our constitutional structure, the historical understanding of state immunity, and the swift enactment of the Eleventh Amendment after the Court departed from this understanding in Chisholm, “[i]t is not rational to suppose that the sovereign power should be dragged before a court.” Elliot’s Debates 555 (Marshall).

Indeed, the spirited historical debate over Article III courts and the immediate reaction to Chisholm make little sense if the Eleventh Amendment were the only source of sovereign immunity and private suits against the States could already be brought in “partial, local tribunals.” Elliot’s Debates 532 (Madison). Nor would the Founders have objected so strenuously to a neutral federal forum for private suits against States if they were open to a State being sued in a different State’s courts. Hyatt’s view thus inverts the Founders’ concerns about state-court parochialism. Hall, supra, at 439 (Rehnquist, J., dissenting).

Moreover, Hyatt’s ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U.S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U.S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U.S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.

I have no firm opinion on the proper scope of constitutional sovereign immunity, and it may be that the dissent has the better view of that scope than the majority does. But I wanted to quote this passage, because it’s a reminder that none of the Justices on the Court is a pure textualist: They all consider at least the text, the original meaning, and “historical practice.” And that is in large part because the Constitution is widely understood as having been enacted against a backdrop of established law and practice, and therefore in some measure implicitly adopting aspects of that law and practice, rather than being limited to what is within the four corners of the document.

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Abortion Restrictionists Go Bold

The political/culture wars are once again at full throttle as Georgia becomes the latest in a series of states to enact serious abortion restrictions, in this case a ban on the procedure when a fetal heartbeat can be detected. Is the longstanding legal/cultural consensus (or political standoff) about abortion—that it should be legally available during the first trimester—giving way to a more extreme agenda by polarized advocates on each side? That’s the thorny question underlying this week’s Editors’ Roundtable edition of the Reason Podcast, featuring Katherine Mangu-Ward, Nick Gillespie, Peter Suderman and Matt Welch.

Other items up for discussion include our latest “constitutional crisis,” the most recent installment of that television show, and also this tweet:

Subscribe, rate, and review our podcast at iTunes.

Audio production by Ian Keyser.

Relevant links from the show:

“‘Heartbeat Bills’ Banning Almost All Abortions Are Back,” by Elizabeth Nolan Brown

“Let Midwives and Nurse Practitioners Provide First-Trimester Abortions, Says Federal Court,” by Elizabeth Nolan Brown

“The Abortion Divide Shows a Fight Growing Ever More Bitter,” by Glenn Garvin

“‘Record Low Are ‘Pro-choice,’ Yet 75 Percent Support Abortion Rights,” by Nick Gillespie

“Abortion & Libertarianism: Nick Gillespie, Ronald Bailey, Mollie Hemingway, and Katherine Mangu-Ward,” by Nick Gillespie and Joshua Swain

“Debate: Libertarians Should Support Abortion Rights,” by Tibor Machan and Karl Pflock

“Wishing for a Constitutional Crisis,” by Keith Whittington

“The Real Constitutional Crisis Is Congress’ Unwillingness to Do Its Job,” by Matt Welch

“Forget Robert Mueller. Trump’s Attacks On Syria Are a Reminder We’re Already in a Constitutional Crisis,” by Peter Suderman

“Firing the FBI Director Is Not a ‘Constitutional Crisis,’” by Jacob Sullum

“Bernie Sanders’ New Plan Will Make It Tougher for Poor People To Get Credit Cards,” by Peter Suderman

“Three Cheers for Usury,” by Katherine Mangu-Ward

“Payday of Reckoning,” by Katherine Mangu-Ward

“In Defense of Payday Loans,” by Nick Gillespie and Jim Epstein

“On Game of Thrones, Absolute Power Corrupts Daenerys Targaryen Absolutely,” by Robby Soave

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Abortion Restrictionists Go Bold

The political/culture wars are once again at full throttle as Georgia becomes the latest in a series of states to enact serious abortion restrictions, in this case a ban on the procedure when a fetal heartbeat can be detected. Is the longstanding legal/cultural consensus (or political standoff) about abortion—that it should be legally available during the first trimester—giving way to a more extreme agenda by polarized advocates on each side? That’s the thorny question underlying this week’s Editors’ Roundtable edition of the Reason Podcast, featuring Katherine Mangu-Ward, Nick Gillespie, Peter Suderman and Matt Welch.

Other items up for discussion include our latest “constitutional crisis,” the most recent installment of that television show, and also this tweet:

Subscribe, rate, and review our podcast at iTunes.

Audio production by Ian Keyser.

Relevant links from the show:

“‘Heartbeat Bills’ Banning Almost All Abortions Are Back,” by Elizabeth Nolan Brown

“Let Midwives and Nurse Practitioners Provide First-Trimester Abortions, Says Federal Court,” by Elizabeth Nolan Brown

“The Abortion Divide Shows a Fight Growing Ever More Bitter,” by Glenn Garvin

“‘Record Low Are ‘Pro-choice,’ Yet 75 Percent Support Abortion Rights,” by Nick Gillespie

“Abortion & Libertarianism: Nick Gillespie, Ronald Bailey, Mollie Hemingway, and Katherine Mangu-Ward,” by Nick Gillespie and Joshua Swain

“Debate: Libertarians Should Support Abortion Rights,” by Tibor Machan and Karl Pflock

“Wishing for a Constitutional Crisis,” by Keith Whittington

“The Real Constitutional Crisis Is Congress’ Unwillingness to Do Its Job,” by Matt Welch

“Forget Robert Mueller. Trump’s Attacks On Syria Are a Reminder We’re Already in a Constitutional Crisis,” by Peter Suderman

“Firing the FBI Director Is Not a ‘Constitutional Crisis,’” by Jacob Sullum

“Bernie Sanders’ New Plan Will Make It Tougher for Poor People To Get Credit Cards,” by Peter Suderman

“Three Cheers for Usury,” by Katherine Mangu-Ward

“Payday of Reckoning,” by Katherine Mangu-Ward

“In Defense of Payday Loans,” by Nick Gillespie and Jim Epstein

“On Game of Thrones, Absolute Power Corrupts Daenerys Targaryen Absolutely,” by Robby Soave

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