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HISTORICAL FACTS: 10 | History Defined

"Your Money Or Your Life"

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

Reason

A Term Of DIGs And Almost-DIGs

This past term, the Court only issued 58 signed opinions. As low as that number is, it was made even lower by DIGs. The Supreme Court dismissed as improvidently granted two cases: United States v. Texas was DIG'd. Justice Sotomayor dissented from the DIG. Arizona v. San Francisco was DIG'd.…

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

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read the most diverse news in one place.

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,…

Reason

Snark in West Virginia v. EPA

One of my least favorite words in legal discourse is "interesting." Sometimes it is a useful way to describe something of interest, but far too often it is a passive aggressive way of criticizing something. "Oh well that is very interesting." After reading West Virginia v. EPA, I will add…

Reason

Justice Gorsuch Cancels Woodrow Wilson

The one President everyone agrees should be cancelled.

Reason

No Offense, But It's Just A Prayer

Kennedy tells people to get over prayer in public unless there is direct coercion.

Reason

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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

Supreme Court Gives Biden Administration a (Temporary?) Win on Immigration with Final Decision of Term

Chief Justice Roberts final opinion of the term rejects the statutory challenge to the Biden Administration's rescission of the "Remain in Mexico" policy.

Reason

Red Flag June Continues As Lemon Is Finally Interred

Justice Gorsuch stabs the final pencil into the Lemon Test.

Reason

And Roberts Was His Name-O

The Chief treats in his dissent.

Reason

"Its" A Problem

Justice Gorsuch has a pronoun problem. No, not that problem.

Reason

Barrett v. Gorsuch -- Continued

Justice Gorsuch has dissented from two-thirds of Justice Barrett's majority opinions this term.

Reason

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Reason

Barrett v. Gorsuch

Justice Amy Coney Barrett and Neil Gorsuch are disagreeing more than you might think, but Justice Barrett appears to have the upper hand.

Reason

Justice Gorsuch DIGS In Kemp and Digs Out in Denezpi

On the current Court, Justice Gorsuch is the most unpredictable justice.

Reason

Justice Sotomayor Criticizes The "Restless and Newly Constituted Court"

This claim brings to mind Justice Stevens' dissent from Citizens United.

Reason

Extraordinary Relief and "Existing Law"

The Supreme Court has just vacated the Fifth Circuit's stay of a district court's preliminary injunction against HB20, Texas's new social media law by a 5-4 vote. Justice Alito (joined by Justices Gorsuch and Thomas) wrote a dissent. (Justice Kagan also noted that she would deny the stay, but did…

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Reason

Supreme Court Reinstates Stay of Texas Social Media Law (Pending Appeal); Justices Alito Dissents

Justices Thomas and Gorsuch join Justice Alito's dissent, and Justice Kagan disagreed with the majority without opinion. This is not a decision on the merits of the law, but Justice Alito's dissent notes why the answer to the merits question is "quite unclear."

Reason

Justice Thomas on SCOTUS Leak: "You begin to look over your shoulder"

Thomas on the Rehnquist Court: “We may have been a dysfunctional family, but we were a family.”

Reason

Text and History for Thee but Not for Me?

The Court makes other people follow the text and history, but at least when it comes to certiorari, the justices lose their religion.

Reason

Abortion and the Free Exercise Clause

What if a doctor feels a religious obligation to perform abortions, (e.g., because he believes doing so is necessary for him to be the Good Samaritan, by removing a threat to his patient's mental health)?

Reason

Boston Can't Exclude Christian Flag from City Hall Flagpole When It Allows Many Other Groups to Fly Flags

So the Supreme Court held this morning, though it made clear that a city could pick and choose which flags it flies, if it makes clear that the flags are its own speech.

Reason

Lemon, Avatars, and Irritable Observers

Justice Gorsuch's Shurtleff concurrence places yet another nail in Lemon's crypt.

Reason

A Draft of "Severability First Principles" is Now Available

For several years, I have been thinking about the doctrine of severability -- what happens when courts conclude that a part of a law is unconstitutional? I have come to believe that this is fundamentally just a question about "say[] what the law is," as Marbury v. Madison put it.…

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