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SHOCKING: 4 - You Need To See This

A Tale of Two Originalists

Justice Gorsuch v. Justice Thomas in Brackeen.

Reason

From Windsor to Brackeen

Scalia was right: "The only thing that will 'confine' the Court's holding is its sense of what it can get away with."

Reason

Roberts Waves the White Flag of Textualism in Allen v. Milligan

Justice Scalia would be rolling over in his grave.

Reason

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Does a Footnote in Sackett II Indicate How SCOTUS Will Resolve the Affirmative Action Cases?

Could the Court treat Justice Powell's Bakke opinion the way it treated Justice Kennedy's Rapanos opinion?

Reason

Justice Kavanaugh's "Principal Concurrences"

On the Supreme Court, there is a hierarchy for listing opinions. The majority opinion always comes first. When the Court is fractured, and there is no clear majority, the opinion with the most support is usually listed first. When the case is an absolute cluster, sometimes the opinion by the…

Reason

In Sackett v. EPA, the Supreme Court Cuts Back Federal Regulatory Authority Over Wetlands

The Clean Water Act decision was a unanimous win for the Sacketts, and a 5-4 victory for Justice Scalia's 2006 Rapanos v. United States plurality.

Reason

Just How Bad was that New York Times Piece on Supreme Court Justices Teaching at Scalia Law?

This bad: The documents show how Scalia Law has offered the justices a safe space in a polarized Washington — an academic cocoon filled with friends and former clerks, where their legal views are celebrated, they are given top pay and treated to teaching trips abroad, and their personal needs…

Reason

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

Justice Gorsuch raises the question that the majority elides.

Reason

The Good and Bad of the Fifth Circuit's Abortion Pill Ruling

The appeals court's unpublished order avoids some of the district court's errors, but still has some significant problems, especially with regard to standing.

Reason

Law School Free Speech, Wokeness, and "The Etiquette of Equality"

A different take.

Reason

"Viability" in Lucas v. South Carolina Coastal Council and Planned Parenthood v. Casey

Justice Blackmun: "Viable is a good medical term, it isn't a legal term, but the lawyers have taken it over and the judges too."

Reason

Justice Janet Protasiewicz, Say Hello To Caperton v. Massey

The candidate, who spoke about her "values" on abortion and gerrymandering, received substantial financial support from donors who lobby for those two key issues.

Reason

Joan Biskupic's Barely-There Exclusives

Gone are the days that Biskupic told us things we didn't already know.

Reason

Justice Barrett's Delightfully Nerdy Opinion in Bartenwerfer v. Buckley

The former professor's opinion reads like an impromptu lecture.

Reason

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Reason

The New Yorker Profiles "The Conservative Who Wants to Bring Down the Supreme Court."

Jonathan Mitchell failed in his effort to become a legal academic, so he put his theories into practice instead.

Reason

[RETRACTED] Calabresi Responds to Whelan on State Legislatures and Moore v. Harper

What is meant by "each State by the Legislature thereof" that prescribes how to conduct elections?

Reason

Indiana RFRA and Abortion

A trial court found that Indiana's abortion law violates the state RFRA.

Reason

Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands?

Ten years after their unanimous Supreme Court victory against the Environmental Protection Agency, the Sacketts return to One First Street for another round.

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Reason

The University of Idaho General Counsel's Letter on Abortion

Justice Scalia, to the rescue.

Reason

Ohio Supreme Court Justice Expresses Doubt About Appellate Decisions About History in Second Amendment Cases

But wouldn't the arguments in the dissent equally cast doubt on all historical analysis in constitutional cases, or even statutory or common-law cases?

Reason

Originalism and the "Major Questions" Doctrine

Originalist legal scholars Mike Ramsey and Mike Rappaport debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not.

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

Justice Scalia's Dissent in Dickerson v. United States Is Vindicated Two Decades Later

Would the current Court have ruled with Justices Scalia and Thomas on Miranda?

Reason

Status, Conduct, and the Yarmulke Tax

There's a lot going on in Justice Kagan's Marietta dissent.

Reason

"Your Money Or Your Life"

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

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