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The Latest Breaking News from Kavanaugh

"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…

Reason

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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,…

Reason

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

The Guardian - US

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

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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."

Reason

Justice Kavanaugh on the Right to Travel to Get an Abortion

This is a tremendously important question, as Ilya's and my posts noted in May. Justice Kavanaugh's concurrence in Dobbs today expressly noted: [A]s I see it, some of the other abortion-related legal questions raised by today's decision are not especially difficult as a constitutional matter. For example, may a State…

Reason

How Should Courts Evaluate Gun Regulations After Bruen?

There's much to be said and debated about the N.Y. State Rifle & Pistol Ass'n v. Bruen opinions, and who got it right. But for now, I want to turn to the practical question: What does Bruen mean for gun laws going forward? Here is my very tentative summary of…

Reason

Supreme Court Decides Major Chevron Case Without Citing Chevron

American Hospital Association v. Becerra is another indication that lower courts are too quick to give agencies Chevron deference.

Reason

What's Wrong With That Footnote? It's Only Seven Words Long!

Chief Justice Roberts refuses to join a wee little footnote in a Justice Barrett opinion.

Reason

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Reason

Barrett v. Gorsuch -- Continued

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

Reason

Kavanaugh's Paradox

For more than a month, protestors have demonstrated outside of Justice Kavanaugh's house. The purpose of these gatherings is clear: to pressure the Justice to change his vote in Dobbs. On Tuesday, Nicholas John Roske traveled to Justice Kavanaugh's house with the same purpose. But instead of wearing a pussy…

Reason

Press Coverage on the Assassination Attempt of Justice Kavanaugh

The New York Times lists sixteen news stories above the attempted murder of a Justice.

Reason

So Long As Dobbs Remains Undecided, The Lives of the Justices Are At Risk

The Dobbs 5 should immediately issue an unsigned per curiam order, with an opinion to follow, even over the Chief Justice's objection.

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Reason

More SCOTUS Leaks To Politico: Alito's Majority Still Holds Five, And No Other Draft Opinions Have Been Circulated Yet

These leaks from a "conservative" look designed to quell controversy.

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

Don't Push A Pencil Through Lemon, Slice It In Half!

Will the Supreme Court finally overrule the Lemon test?

Tribune News Service

Rekha Basu: Chuck Grassley had a chance to restore bipartisan confidence. He passed

I feel stupid for having dared to hope Sen. Chuck Grassley would make the leap to vote for Judge Ketanji Brown Jackson getting on the Supreme Court. Thankfully, she made it through without the support of Iowa's senior senator. But the victory could have been sweeter, the moment more memorable,…

Reason

Tradition and Compelling Interests in Religion Cases

Justice Kavanaugh argues for historical practice as a check on judicial intuition

Reason

Supreme Court Issues Stay, Favoring Navy, in Navy Seals COVID Vaccination Religious Exemption Case

In today's Austin v. U.S. Navy Seals 1–26, the Supreme Court stayed "[t]he district court's January 3, 2022 order, insofar as it precludes the Navy from considering respondents' vaccination status in making deployment, assignment, and other operational decisions … pending disposition of the appeal in the United States Court of…

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