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FORGOTTEN HISTORY: 9 | History Defined

Article I, Article II, and Article III in United States v. Texas

The power of the purse, prosecutorial discretion, and jurisdiction, are all implicated.

Reason

Vacatur and the Catron Principle

As Sam notes below, one notable feature of the vacatur arguments in US v. Texas was the strong resistance of former D.C. Circuit judges, arguing from their personal experience. Here's Chief Justice Roberts: I mean, this is a long -- that's what the D.C. Circuit and other courts of appeals…

Reason

Some Thoughts on Last Week's Oral Argument in the Affirmative Action Cases

I was asked to give some brief remarks on the affirmative action cases at a panel discussion at the University of Baltimore today. I typed up some notes, and I thought they were worth sharing: I think at least seven Justices, including Kagan on the left, converged on the notion…

Reason

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Woman filmed dangling from 20th-floor window in Manhattan high-rise fire recounts heartstopping rope rescue

The three-alarm fire broke out around 10.30am on Saturday at a building on 429 East and 52nd Street in Manhattan

The Independent UK

A Remarkable Moment at Oral Argument in the UNC Affirmative Action Case

Counsel for UNC did not know which box students of Middle Eastern Origin are supposed to check.

Reason

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

My Justice-by-Justice breakdown.

Reason

Kavanaugh on Halfway Originalism

An insightful point from oral argument in National Pork Producers v. Ross -- and its implications.

Reason

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

SCOTUS nudges the lower courts and parties into compliance.

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 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

Nicholas Roske Used Reddit and Discord To Plan Assassination of Kavanaugh And Potentially Two Other Justices

Chilling information revealed from the search warrant affidavit.

Reason

Breaking Down Joan Biskupic's Latest Reporting On The Dobbs Leak

Here we are, one month after Dobbs. The leaker has not yet come forward. Indeed, we have no clue who the leaker may be. David Lat suggests that the Politico reporters may not even know who the leaker is! I was patiently waiting for something, anything, from Supreme Court reporters…

Reason

For Legal Conservatives, Six Decades Of Folding, Followed By Sixteen Years To Draw A Full House

On the plus side, we had Rehnquist, Scalia, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. On the down side, we had Roberts, Souter, Kennedy, O'Connor, Powell, Blackmun, Burger, Stewart, Whittaker, Brennan, and Warren.

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

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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

The Value of Parentheticals in Statutes and the Constitution

Becerra v. Empire Health Foundation presents an exceedingly intricate case about Medicare funding. I won't even try to explain the facts. In dissent, Justice Kavanaugh said the statutory formula is "mind-numbingly complex." Justice Kagan, for the majority, joked "you might be ready to absorb the relevant statutory language (but don't…

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…

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Reason

Legal Questions about Abortion after Dobbs

Assume for now that Dobbs takes off the table the question of whether the 14th Amendment protects a right to abortion. What are the major legal questions about abortion likely to arise in the federal courts going forward? I've been trying to come up with a list of the major…

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

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

Recent Episodes of Divided Argument

Divided Argument, my podcast about the Supreme Court with Dan Epps, has been in high season this month, as the Court has released the majority of its important opinions. Here are the episodes from this month so far: SMUGLER: We discuss the Bivens decision in Egbert v. Boule and the…

Reason

The Limits of Bruen

The Constitutionality of "Shall Issue" Regimes After Bruen.

Reason

On Justice Thomas, Dobbs, Precedent, and Substantive Due Process

In his Dobbs concurrence, the senior associate justice reiterates his outlying views on precedent and his belief that all substantive due process decisions were "demonstrably erroneous."

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