Big cases, retirement rumors as Supreme Court nears finish

Law360, Minneapolis (June 23, 2017, 8:06 PM EDT) - The U.S. Supreme Court's decision Friday affirming a Wisconsin court ruling that said two adjacent properties at the center of an eminent domain dispute can be considered one unit for the purposes of calculating loss provides clarity to dozens of states that have laws pertaining to the issue, attorneys say. The undecided cases remaining on the Court's docket this year, by contrast, aren't likely to be quite so impactful, with the possible exception of Trinity Lutheran Church v. Comer, a First Amendment case dealing with the question of whether a secular aid program that excludes religious groups violates the Free Exercise Clause.

A day earlier, Gorsuch wrote a separate opinion when the Supreme Court unanimously limited the government's ability to strip U.S. citizenship from immigrants who lie during the naturalization process.

Also expected in the next few days, though there's no deadline by which the court must decide, is a ruling on whether to allow the administration to immediately enforce a 90-day ban on visitors from six mostly Muslim countries.

"Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases can not be solved by any simple test. See Arkansas Game and Fish Comm'n v". "Considering petitioners' property as a whole, the state court was correct to conclude that petitioners can not establish a compensable taking in these circumstances".

Writing for the court's majority, Justice Anthony Kennedy said that regulations that partly limit how a property owner uses his or her land do not necessarily require compensation from the state.

He noted the U.S. government request followed House and Senate hearings earlier this month which demonstrated "strong support for modernising the 31-year-old law at issue in the case and implementing updated data-sharing treaties with our allies".

Kennedy has given no public sign that he will retire now and give President Donald Trump his second high court pick. Several of his former law clerks have said they think he is contemplating stepping down in the next year or so.

In terms of a replacement, Kennedy might take comfort in the list of 20 judges Trump has vowed to draw from when considering the next vacancy on the court.

However, sometimes Kennedy voted with the four conservatives on the bench. Justice Neil Gorsuch, Trump's nominee who was confirmed in April, is taking part in the highest-profile issue yet in his three months on the court.

"Judges tend to be, once they got on there, very unpredictable", Rath said. Kennedy has been the all-important swing vote on the court, casting the pivotal fifth vote on legalizing same-sex sex marriage and upholding abortion rights.

There's been speculation about Kennedy's retirement since at least 2014, when the prospect of opening Supreme Court seats emerged as an early stake in the 2016 election. He blasted the "so-called judge"; assailed "slow and political" courts; and, most alarming, suggested that blood would be on the judiciary's hands if a terrorist incident took place while his travel ban was being delayed.

Justice Neil Gorsuch, who joined the court after the case was argued, did not participate in Friday's decision.

After that term, former acting Solicitor General Neal Katyal said, "It is very much Justice Kennedy's Court".

Chief Justice John Roberts wrote the dissent, joined by Justices Clarence Thomas and Samuel Alito, saying that the court should have a clearer, bright-line test for what constitutes a taking.

  • Zachary Reyes