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Opening Day at the Supreme Court

With the showdown over the budget and the debt ceiling dominating the Washington landscape, it is tempting to overlook the start of the new term at what Alexander Hamilton, in Federalist #78, labeled the “least dangerous branch” of the national government. But no government shutdown could prevent the Supreme Court from beginning its new term on the customary first Monday in October. As one might expect, previews of the upcoming term abound.

Unfortunately, from the standpoint of someone looking for compelling Opening Day news to hook his undergraduates, today’s oral argument suggested that the attorneys on both sides could have used a longer pre-season:

The issue in Madigan v. Levin (docket 12-872) is an important one: how much power does Congress have to take away an individual’s right to sue over a violation of constitutional rights, by passing a substitute civil rights law?  But that is an important issue only if it actually remains in the case, and the Court expressed doubt about that from the very beginning to the end of the one-hour hearing.  Several Justices openly suggested that the case should simply be dismissed or sent back to lower courts to clean up the mess.

With a docket typically featuring about 80 cases per term, the justices can ill afford to devote scarce time to cases that it later regrets having accepted for review. It can make its mistakes disappear by dismissing cases as improvidently granted, or DIG for short (which would sound cooler if old-school hipsters had gained some traction on the Court). But it would prefer not to have made the mistakes in the first place. At least tomorrow’s oral argument, concerning a challenge to federal law capping how much campaign contributors may donate to federal candidates in each two-year election cycle, is unlikely to be as anti-climactic as today’s action.

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