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09/26/2018

Preview: Originalism and the Supreme Court's October 2018 Term
Michael Ramsey

Looking at the cases granted review so far for the the Supreme Court's upcoming term, it does not appear that this year will rival last year in terms of high-profile cases.  Nonetheless, there are several of originalist interest.  (A full list of granted cases is available from SCOTUSblog here).  Here are four worth watching:

Gundy v. U.S.No. 17-6086, to be argued October 2 (next Tuesday).  Question presented:  "Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine."

This case provides an opportunity for a narrow resurrection of the nondelegation doctrine, and perhaps invites a broader historical inquiry into the doctrine's original foundations.  A decision for the challenger has little chance of reestablishing a broad nondelegation doctrine because a narrow resolution is available -- the challenged statute appears to provide literally no guidance to the attorney general and so might be unconstitutional even under very permissive versions of the doctrine. But any victory for a challenger under the nondelegation doctrine, even a narrow one, would put the doctrine back on the table in a way it hasn't been since the regrettable (to many originalists) decision in Whitman v. American Trucking.

Gamble v. U.S.No. 17-646,  argument not yet calendared. Question presented: "Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause."

This case is a direct invitation to consider the historical foundations of the separate sovereigns doctrine.  I have no opinion on the merits, except that the doctrine as it currently stands seems to be something invented by the Court, not on anything based on text or history.  Whether or not the doctrine is found to have adequate historical foundations, the result may give the law in this area a more sound originalist basis.

Timbs v. IndianaNo. 17-1091, argument not yet calendared. Question presented: "Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment."

The non-incorporation of the excessive fines clause seems like a bizarre anomaly -- if one accepts incorporation generally, it's hard to think of a reason why this clause in particular would not be incorporated.  The case offers an opportunity to, as Justice Scalia used to say, "clean up the law."

Franchise Tax Board of California v. HyattNo. 17-1299, argument not yet calendared. Question presented:  "Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled."

This is another area that invites "clean up" and better historical analysis (although as William Baude and Stephen Sachs argue in an amicus brief, perhaps this is not the right case for it).

In sum, the term so far offers several opportunities to move the law in originalist directions -- and as none of the cases have a strong political valence, perhaps they offer the prospect of broad agreement among the Justices.