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UNCOVERED: 9 - The Untold Story

Another Voting Paradox Case (Pork Division)

The California Pork case (NPCC v. Ross) is another example of a case whose outcome conflicts with the doctrines adopted by the Court itself in its opinions.

Reason

How Did Justice Gorsuch Lose A Majority In National Pork Producers?

Thomas assigned the majority to Justice Gorsuch, but he couldn't hold five all the way.

Reason

SCOTUS Chooses California Over Pork Producers and Bacon Consumers (and Issues Four Other Opinions Too)

The Supreme Court issues five merits opinions, but there are still forty more waiting.

Reason

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Senator Schumer's Letter to Chief Judge Godbey (NDTX)

If you don't do what I want, "Congress will consider more prescriptive requirements."

Reason

How Will the Mifepristone Case Get Back to the Supreme Court?

On Friday evening, the Supreme Court granted a complete stay of the District Court's order in Alliance for Hippocratic Medicine v. FDA. And that stay will remain in effect while the proceedings in the Fifth Circuit continue. For now, the status quo continues. Justice Thomas would have denied the application…

Reason

The Supreme Court's Mifepristone Stay

Last night the Supreme Court entered a short but important order staying an order issued by the Northern District of Texas in the mifepristone litigation "pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of…

Reason

SCOTUS: Abortion pill is safe — for now

SCOTUS reversed a federal judge's previous ruling that banned mifepristone, a pill intrinsic to medication abortion

Salon

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Reed v. Goertz, California v. Texas, and WWH v. Jackson

Justice Kavanaugh's six-page majority opinion does not withstand scrutiny against Justice Thomas's 20-page dissent.

Reason

Alito: "I went to a law school where I didn't learn any law."

I was pleased to attend oral argument today in Jack Daniel's Properties, Inc. v. VIP Products--my first argument since the pandemic. This fun IP case considers a doggy toy that closely resembles a bottle of Jack Daniels whisky. It is always fun to see Lisa Blatt argue in person. She…

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

An Unusual Supreme Court Split in Bittner v. United States

The Bank Secrecy Act divides the justices in an unusual way, and Justice Barrett authors her fourth opinion in an argued case.

Reason

Justice Sotomayor: Summary Reversal on the "Shadow Docket" Caused A "Significant Change" In Federal Law

Justice Barrett countered that the SumRev "did not change the content of federal law."

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.

Reason

Abortion and the 13th Amendment

Judges cannot take the Supreme Court's silence as a ground to subvert Supreme Court precedent.

Reason

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Salon

Experts stunned by SCOTUS leak omissions

Experts say Supreme Court Dobbs opinion leak probe is "really not an investigation"

Reason

Justice Alito Asks Questions in 303 Creative from Jewish Coalition for Religious Liberty Amicus Brief

Justice Kagan confirms that J-Date is in fact a Jewish dating site.

Reason

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.

Reason

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?

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Reason

Life Imitates the Volokh Conspiracy

A reader reminded me of this blog post Jan. 24, 2022: Will the Supreme Court Ask Harvard How it Justifies Treating "Asian Americans" as a Homogenous Category? I wrote: "I'm not quite sure what Harvard's lawyer would or could say if asked why, say, Filipino, Nepalese, and Mongolian applicants are…

Reason

Colloquy on the Arbitrariness of Racial Classification in Monday's Oral Argument

In the oral argument from SFFS v. UNC, Justice Alito raised the question, highlighted in my amicus brief and book, of whether the racial and ethnic classifications used by UNC and other universities are so arbitrary as to be unconstitutional. I have posted the colloquy below. Two comments: (1) Justice…

Reason

Review of Oral Argument in Students for Fair Admission v. University of North Carolina

My Justice-by-Justice breakdown.

Reason

Yeshiva University Loses On The Shadow Docket, Wins On The Penumbra Docket

SCOTUS nudges the lower courts and parties into compliance.

Reason

The Way To Stop Worrying About Judicial Legitimacy Is To Stop Worrying About Judicial Legitimacy

The answer to any question about the Supreme Court's legitimacy should be "next question."

Reason

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 II: The Origins of MFN

The present doctrinal development begins with Church of Lukumi Babalu Aye v. Hialeah (1993), in which the Court invalidated a ban on animal sacrifice. The Court had previously held that there was no right to religious exemptions from neutral laws. But this law wasn't neutral. It targeted an unpopular religion…

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