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INSANE: 9 | Rare Historical Photos

Some Levity On A Technical Oral Argument Day

Today, the Harlan Institute and Ashbrook hosted the championship round for our virtual Supreme Court competition. Every year, we fly the top two teams and their coaches, to Washington, D.C. These high schoolers had a jam packed day. In the morning, we attended oral argument at the Supreme Court. For…

Reason

Can the Supreme Court "Develop and Apply Customary International Law"?

Justice Gorsuch raises the question that the majority elides.

Reason

Unanimous Supreme Court Affirms Right to Challenge Federal Agencies in Federal Court

Those claiming they are subject to unconstitutional agency proceedings need not suffer through agency proceedings before bringing their claims to federal court.

Reason

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Do Court-Appointed Prosecutors Violate The Separation of Powers?

Justices Gorsuch and Kavanaugh argue they do, in defense of--checks notes--Steven Donziger.

Reason

Ending the Epicycles of the Establishment Clause

Like abortion, separationism has distorted standing doctrine.

Reason

Making Sense Of The Votes In Bittner v. United States

Why did Justices Kagan and Sotomayor, but not Justice Jackson, join Justice Barrett's dissent?

Reason

Why Big Tech will lose its Supreme Court case on section 230

I only count two votes to ratify Big Tech's sweeping immunity claims

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Justice Kagan Double-Helixes Justices Gorsuch and Kavanaugh

Kagan: "Kavanaugh, J. (recognizing that the argument may be forfeited, but opining on it anyway)."

Reason

Has Justice Barrett Replaced Justice Ginsburg as the Court's Quickest Opinion Writer?

Justice Barrett has produced two majority opinions before most of her colleagues have produced one.

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Will Chief Justice Roberts Respond To Senator Wyden's Attack On Judge Kacsmaryk?

In March 2020, Senator Charles Schumer stood outside the Supreme Court and assailed the two newest members: "I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward…

Reason

Why Does Justice Kavanaugh Write Concurrences?

And if only we could gaze upon his book of never-published opinions.

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Justice Gorsuch's Dissent from Denial of Review in an Excessive Fines Clause Case

Here's his opinion from today's Toth v. U.S.: In the 1930s, Monica Toth's father fled his home in Germany to escape the swell of violent antisemitism. Eventually, he found his way to South America, where he made a new life with his young family and went on to enjoy a…

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Justice Gorsuch on Title 42: "Even if the [APA] has taken a holiday during this pandemic, it cannot become a sabbatical."

With good reason, Justices Sotomayor and Kagan do not join Maskless Neil's dissent.

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Predicting a Fragmented Vote in United States v. Texas

I don't think there will be a five vote bloc on standing or the remedy.

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Some Thoughts on Elite-Law-School Bias in Clerkship Hiring

Does the bias exist? Is it a good thing? What does it mean for law students at lower-ranked schools? What does mean about me?

Reason

Supreme Court Turns Down Opportunity to Reconsider Three More Precedents

Justices Thomas and Gorsuch have a much greater appetite for reconsidering prior precedent than the other justices do.

Reason

Seven Reschedules, Four Relists, Zero Joins for Justice Gorsuch's Chevron Dissental

Justice Gorsuch is still at Step 0 of overruling Chevron.

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Justice Gorsuch Argues the Jury Trial Clause Requires 12-Person Juries in Serious Criminal Cases

From Justice Gorsuch's dissent from denial of certiorari in Khorrami v. Arizona: The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury. On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U. S. Constitution guarantee individuals like him…

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The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part V: The Abuse of Strict Scrutiny

I will conclude this series of posts by considering the variants of MFN that affect the way strict scrutiny is applied. MFN-6, ubiquitous in the Covid cases, makes strict scrutiny impossible to satisfy, by treating as equivalents regulated actions that are radically different in their effects on the pertinent state…

Reason

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part IV: Easy Paths to Strict Scrutiny

Let's move on to other variants. One looks at whether a law has any exceptions at all, and, if religious reasons are not among those exceptions, automatically applies strict scrutiny. It was proposed by Justice Kavanaugh in his dissent in Calvary Chapel Dayton Valley v. Sisolak, and possibly embraced by…

Reason

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part III: Misconstruing the State Interest

Here I will consider how the MFN theory was expanded to its present bloated proportions. Recently members of the Court, and sometimes a majority, have developed variants of MFN that are far more far-reaching and skeptical than the modest heightened scrutiny suggested by Lukumi. The key innovation, pioneered by Justice…

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The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part I: The New Law of Free Exercise

Eugene has kindly invited me to contribute a series of posts, briefly describing my taxonomy of new variants of the most-favored-nation theory of religious liberty (forthcoming in the Iowa Law Review). I'm particularly pleased by the invitation, because I wrote the piece in conscious emulation of the kind of careful…

Reason

West Virginia v. EPA: Questions About "Major Questions"

The major questions doctrine inverts the Chevron doctrine, is indeterminate, and, as a practical matter, will encourage courts to engage in something more akin to political punditry than law.

Reason

Let's talk about 8 U.S.C. § 1252(f)(1) and Justice Barrett's concurrence in Biden v. Texas

As (yet another) Texas v. U.S. slides from the shadow docket to the rocket docket

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California Enacts Gun Control Law Modeled on Texas' SB 8 Anti-Abortion Law

Both laws seek to evade judicial review by delegating enforcement exclusively to private parties.

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