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YOU WONT BELIEVE: 9 - What They Never Told You

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

Reason

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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.

Reason

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.

Reason

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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…

Reason

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.

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?

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.

Reason

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…

Reason

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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…

Reason

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…

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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

Reason

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.

Reason

Five Thoughts About The Respect for Marriage Act

Today the Respect for Marriage Act passed the House by an unexpectedly large margin. And there is movement afoot to see if the bill will garner ten Republican votes to break a Senate filibuster. Ilya addressed the bill here. I'd like to add five more thoughts. First, one of the…

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.

Reason

"Scattered Dicta" in Oklahoma v. Castro-Huerta

In Oklahoma v. Castro-Huerta, the majority and dissent vigorously disagreed about the scope and meaning of federal Indian law. In particular, Justices Kavanaugh and Gorsuch contested how certain precedents, construed over the course of two centuries, should be read. Indeed, the majority and dissent bickered about what those cases actually…

Reason

Oklahoma, O.K.!?

I've now finished reading Oklahoma v. Castro-Huerta. I'll say this much: I found Justice Gorsuch's dissent here far more persuasive than I found his majority opinion in McGirt. Yet, if McGirt had come out the other way, there probably would have been no need for the Court to decide Castro-Huerta.…

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