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The Latest Breaking News from Kavanaugh

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

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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

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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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?

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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,…

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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…

Reason

Justice Kavanaugh on Strict Scrutiny

In many areas of constitutional law, the Court allows a constitutional right to be overcome when a restriction passes "strict scrutiny"—i.e. (to oversimplify slightly), when the government can show that restricting the right is the "least restrictive means" of serving a "compelling government interest." In some fields, such as free…

The Guardian - US

Why dissent by conservative justices in voting rights cases is alarming

Democrats won two major victories, but a dissenting opinion from three of the court’s conservative justices set off alarm bells

Reason

Throwing Shade At The Shadow Docket In The Alabama Redistricting Cases

Merrill v. Milligan is the most important shadow docket entry since John Does 1-3 v. Mills

Reason

SCOTUS GDRs Trump v. Thompson: Grant, Dictumize, and Retreat

The Supreme Court summarily deems the "central question" of the D.C. Circuit's opinion as "nonbinding dicta" to avoid hamstringing some future, more worthwhile, president.

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