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SHOCKING: 2 - What They Never Told You

Justice Breyer's Establishment Clause Particularism

Justice Breyer saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial balancing exercise.

Reason

"Appeasement"? Or, Avoiding Error?

Justice Breyer did not always vote with the Court’s strict-separationist justices. Good for him.

Reason

Prof. Rick Garnett (Notre Dame) Guest-Blogging About Justice Breyer's Establishment Clause Approach

I'm delighted to report that Prof. Rick Garnett (Notre Dame) will be guest-blogging this week about his forthcoming First Amendment Law Review article, "Justice Breyer and the Establishment Clause: Notes on 'Appeasement', 'Legal Judgment', and 'Divisiveness'". I've long found Justice Breyer's Establishment Clause approach to be interesting (though ultimately on…

Reason

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Sotomayor and Kagan "Go Back To School" Each Other in Warhol v. Goldsmith

Does The Relationship Between Justices Sotomayor and Kagan "Have Much Of A Future"? Or was this just their "Fifteen Minutes" of Flame Wars?

Reason

Justice Stevens's Papers Will Be Released While Justices O'Connor, Kennedy, Souter, Thomas, and Breyer Are Still Alive

First stop for reporters: the Grutter and Gratz files.

Reason

Chief Justice Roberts's Letter to Senator Durbin

Last week Senator Dick Durbin invited Chief Justice Roberts to testify before the Senate Judiciary Committee. Despite my hope that the Chief would send Justice Breyer, Roberts respectfully declined Durbin's invitation. And he sent a letter explaining his decision. The letter is short--only one page--but Roberts packs a lot in…

Reason

Senator Durbin Invites CJ Roberts "Or Another Justice Whom [He] Designate[s]" To Testify Before Senate Judiciary Committee

Send Justice Breyer!

Reason

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Ban on Knowingly False Statements During Emergencies Struck Down on First Amendment Grounds

From Judge Pedro Delgado-Hernández's opinion today in Rodriguez-Cotto v. Perluisi-Urrutia (D.P.R.): Article 5.14(a) criminalizes, after the Governor of Puerto Rico has decreed by executive order an emergency or disaster, to knowingly, purposely or recklessly: (1) give a warning or false alarm, knowing that the information is false, in relation to…

Reason

Joan Biskupic Breaks Some News About Pavan v. Smith and Masterpiece Cakeshop

Did Roberts and Kennedy swap votes to GVR Pavan and grant Masterpiece?

Reason

Joan Biskupic's Barely-There Exclusives

Gone are the days that Biskupic told us things we didn't already know.

Reason

How Often Do Justices Refer To "My Law Clerk"?

Justices Breyer and Sotomayor did it a lot.

Reason

The Supreme Court at the 2023 State of the Union

President Biden goes off script on abortion.

Reason

Analogical Reasoning and the Second Amendment

In historical inquiry, reasoning by analogy is a commonplace task for any lawyer or judge.

Reason

Mum's pride as five-year-old daughter saves her life after she collapsed

Breyer Warke knew to call her grandad to ask for help after her mum collapsed

Wales Online

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Reason

Traditionalism Rising, Part III: The "Level of Generality" Problem

One important challenge to traditionalism involves what some have termed the "level of generality" problem. Mark Tushnet, in addressing a previous article of mine on traditionalism, observed: Referring to the Bladensburg cross case, DeGirolami criticizes Justice Breyer for "drawing" the practice with reference solely to the very cross at issue…But,…

Reason

Restoring the right to bear arms, New York State Rifle and Pistol Association v. Bruen

Article for Cato Supreme Court Review

Reason

Dobbs Is Making Our Democracy Work

Justice Breyer, whether he admits it or not, should recognize how Dobbs reinvigorated the legislative process on abortion.

Reason

It Must Be Nice To Have John Marshall On Your Side, Except for Indian Law

Justice Gorsuch embraces Worcester v. Georgia, while Justice Kavanaugh rejects the great Chief Justice.

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Reason

"Your Money Or Your Life"

A famous line from NFIB v. Sebelius shows up in U.S. v. Taylor

Reason

How Many Opinions Did Each Justice Write During OT 2021?

During the October 2021 Term, each Justices authored between five and eight majority opinions. The Chief assigned himself the most majority opinions (8) and Justice Kavanaugh had the fewest (5). Justice Kavanaugh wrote the most concurring opinions with 8. Indeed, Kavanaugh beat Thomas and Alito, who each had 7. Five…

Reason

The 3-3-3 Court on the Merits Docket and the Shadow Docket

On June 18, 2021, I wrote, "We don't have a 6-3 Conservative Court. We have a 3-3-3 Court." I'm not sure if I was the first person to coin the phrase 3-3-3 Court, but I was one of the first. And I elaborated on this theme in a Newsweek column,…

The Guardian - US

The US supreme court is turning the constitution into a suicide pact

The constitution is being used to destroy the very democratic governance that it was designed to protect

Reason

Why Didn't Kennedy Formally Overrule Lemon?

There were no Establishment Clause claims present, and Kennedy did not ask the Court to reverse Lemon.

Reason

Farewell to Footnote 3 of Trinity Lutheran

In Carson v. Makin, the Chief Justice stealthily eliminated the status/use distinction.

Reason

Forget Carson! Remember the Maine Human Rights Act.

Maine finds a way to undercut Carson v. Maikin.

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