Solicitor General Noel Francisco Remarks at Federalist Society Supreme Court Term Preview

Remarks as prepared for delivery

Thank you for the opportunity to speak at this outstanding annual event.  It’s great to see so many friends and followers of the Supreme Court. 

This is a time of transition for the Supreme Court, and also for a Federalist Society member who has served the President and our Nation with distinction for the past 18 months:  the White House Counsel, and my friend and former law partner, Don McGahn.  When Don’s forthcoming departure was announced, Senate Majority Leader Mitch McConnell said, “Don is the most impressive White House Counsel during my time in Washington, and I’ve known them all.”  I haven’t known quite as many as the Leader, but I can echo his admiration for Don’s judgment, leadership, and character.  He will be deeply missed.

Overview of 2018 Term (and Review of 2017 Term)

The Supreme Court’s past term—my first as SG—was a blockbuster.  Just to summarize for anyone looking to get caught up on last season, the Court, among many other important decisions:

• Upheld the President’s travel executive order;
• Overruled a 40-year-old precedent to hold that mandatory public sector agency fees unlawfully compel public employee speech;
• Vacated Colorado’s application of its public accommodations law to a Christian baker who declined to make a cake for a same-sex wedding;
• Struck down two California disclosure requirements regulating Pro-Life crisis pregnancy centers;
• Struck down a federal law regulating sports gambling; and
• Held that the government must obtain a warrant in order to obtain cell-site records.

Looking ahead, the October Term 2018 also promises to be a fascinating term in many ways. 

For the first time in 30 years, Justice Anthony Kennedy will not be on the Court.  Justice Kennedy was of course the focus of much of the briefing and argument in recent years, particularly in the decade after Justice O’Connor left the Court.  He was a great defender of First Amendment freedoms who will be deeply missed.  It will be very interesting to see how the Court changes—at oral argument, in its decisions, and perhaps even in other ways—with Justice Kennedy departed and a new Justice on the Court.

As for the cases granted thus far, the docket doesn’t currently have the blockbusters we saw last year.  But there are several big cases in the pipeline. 

Revisiting Precedent

In terms of the current cases, one early theme is the Court’s willingness to revisit precedent in some important areas of law.

Knick:  First up is Knick v. Township of Scott, in which the Court is reconsidering the Williamson County rule—a rule that essentially requires property owners challenging municipal laws under the Takings Clause to proceed in state rather than federal court.  Interestingly, this case involves cemetery law, and whether the rural township of Scott, Pennsylvania can force a property owner to allow the public to visit an old family cemetery on her property.  The Court granted the case specifically to reconsider Williamson County.

The Williamson County rule has been the subject of much criticism, with Justice Thomas recently lamenting that it had “downgraded the protection afforded by the Takings Clause to second-class status.”  The argument is set for the first Wednesday of the term.  Stay tuned to see if Williamson County ends up in the graveyard. 

Gamble:  The second doctrine the Court has agreed to reconsider is the so-called “dual sovereignty” exception to the Double Jeopardy Clause of the Fifth Amendment.  The dual-sovereignty doctrine states that because the federal government and the states are separate sovereigns, the Constitution does not prohibit successive prosecutions by these sovereigns even for the same offense.  A couple of terms ago, Justices Ginsburg and Thomas—a somewhat odd couple—suggested that the dual-sovereignty doctrine “bears fresh examination in an appropriate case.”  It appears that the Court is now ready to give the doctrine that “fresh examination” this term in Gamble v. United States.

Hyatt:  The Court has also agreed, for the second time, to reconsider a precedent involving the scope of state sovereign immunity.  In 1979, in Nevada v. Hall, the Court held that states don’t have sovereign immunity in the courts of other states.  That means a state can be haled into the courts of another state against its will.  

Three years ago, the Court granted cert in Franchise Tax Board of California v. Hyatt (its second trip up to the Court) to reconsider Hall, but split 4-4 on that question after Justice Scalia died.  California has now persuaded the Court to grant cert again to reconsider Hall.  It’s pretty clear where the States stand on this issue:  In true bi-partisan spirit, 45 of them, including Nevada, have signed an amicus brief supporting California’s call to overrule Hall.  We’ll hear more about what the Justices think later this term.

Reviving Precedent

Although the Court is reconsidering old doctrines in some areas, it may be looking to revive old doctrines in others.

Gundy:  The lead example is Gundy v. United States, which involves the nondelegation doctrine.  As you know, the nondelegation doctrine, at least in theory, prohibits Congress from delegating the “legislative power” granted in Article I to the Executive Branch.  But as Justice Scalia put it in 2001, the Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”   

Gundy involves a non-delegation challenge to the Sex Offender Registration and Notification Act, often known as SORNA.  All 11 courts of appeals to address the issue have rejected that argument.  But one young judge on the Tenth Circuit thought otherwise and penned a vigorous dissent.  It’s perhaps not a coincidence that Justice Thomas called for a revitalization of the doctrine in a separate opinion a few terms ago.  And at last year’s FedSoc dinner, Justice Gorsuch went out of his way to discuss what he called a “dirty word”:  delegation.  Look for that dirty word to come up a lot at the argument in November.

Timbs:  Another case potentially implicating an oft-neglected part of the Constitution is Timbs v. Indiana, which will address whether the Excessive Fines Clause of the Eighth Amendment applies against the States?  The Supreme Court has incorporated most provisions of the Bill of Rights against the States through its selective incorporation doctrine.  But there are a few outliers, and the Excessive Fines Clause is one of them, along with Third Amendment’s prohibition on the quartering of soldiers, the Fifth Amendment’s grand jury indictment requirement, the Seventh Amendment’s right to a jury trial in civil cases.

The last time the Court addressed incorporation was in the 2010 decision McDonald v. Chicago, when the Court held that the Second Amendment was incorporated against the States.  Four Justices followed the Court’s traditional Due Process Clause approach to incorporation, while Justice Thomas rejected incorporation via the Due Process Clause and instead relied on the Privileges or Immunities Clause. We’ve yet to see where Justice Gorsuch stands on the issue.  This will be a fascinating case and a strong candidate for the constitutional law casebooks.

Other Granted Cases

There are number of other important issues on the Court’s docket, including:

• the extent of federal authority under the Endangered Species Act;
• federal preemption under the Atomic Energy Act;
• the power of states to tax federal employees;
• the authority of courts to approve cy pres settlements;
• and several questions involving the Armed Career Criminal Act, the Federal Arbitration Act, and federal Indian law.

I could go on.  But, in the interest of time, I’ll have to leave these cases to the panelists.

Looking Ahead

Although those are all interesting cases, I think the key to this Term is the pipeline.

Next week, the Court will hold its Long Conference, at which it will consider a number of significant petitions that have arrived over the summer.  Among other issues, the Court will consider petitions on

• whether Title VII’s prohibition on employment discrimination “because of . . . sex” includes discrimination on the basis of sexual orientation or gender identity; and
• whether a cross-shaped World War I memorial in a park violates the Establishment Clause under the Lemon test. (Full disclosure: I was counsel of record in this case before the court of appeals and so am recused.)

Further out on the horizon, the lower courts have issued decisions on a number of significant issues that could come before the Court, including:

• the constitutionality of the structure of independent agencies like the Consumer Finance Protection Bureau and Federal Housing Finance Agency;
• whether partisan gerrymandering claims are justiciable;
• the legality of the President’s rescission of DACA;
• the President’s policy on transgender military service;
• the scope of the Second Amendment; and
• my favorite topic, the propriety of nationwide injunctions.

Of course, if my first year on the job taught me anything, it’s to expect the unexpected.  So I’ll be following the Court just like you, and I’m sure we will be in for an interesting ride. But with that, I’ll turn things over to the panel.

Thank you again for inviting me to join you, and enjoy the panel!