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The Latest Breaking News from Alito

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

Life Imitates the Volokh Conspiracy

A reader reminded me of this blog post Jan. 24, 2022: Will the Supreme Court Ask Harvard How it Justifies Treating "Asian Americans" as a Homogenous Category? I wrote: "I'm not quite sure what Harvard's lawyer would or could say if asked why, say, Filipino, Nepalese, and Mongolian applicants are…

Reason

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Colloquy on the Arbitrariness of Racial Classification in Monday's Oral Argument

In the oral argument from SFFS v. UNC, Justice Alito raised the question, highlighted in my amicus brief and book, of whether the racial and ethnic classifications used by UNC and other universities are so arbitrary as to be unconstitutional. I have posted the colloquy below. Two comments: (1) Justice…

Reason

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

My Justice-by-Justice breakdown.

Reason

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

SCOTUS nudges the lower courts and parties into compliance.

Reason

The Way To Stop Worrying About Judicial Legitimacy Is To Stop Worrying About Judicial Legitimacy

The answer to any question about the Supreme Court's legitimacy should be "next question."

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 II: The Origins of MFN

The present doctrinal development begins with Church of Lukumi Babalu Aye v. Hialeah (1993), in which the Court invalidated a ban on animal sacrifice. The Court had previously held that there was no right to religious exemptions from neutral laws. But this law wasn't neutral. It targeted an unpopular religion…

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

Should the Law Limit Private-Employer-Imposed Speech Restrictions? Some Other Reasons Why

As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and…

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

Kagan Clings To Casey's Conception of Legitimacy

Like the Constitution itself, Casey's precedent on precedent is dead.

Reason

When Are Lies Constitutionally Protected?: Unpunishable Lies

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (You can also read the whole article here; all the posts about it…

Reason

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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

A Term Of DIGs And Almost-DIGs

This past term, the Court only issued 58 signed opinions. As low as that number is, it was made even lower by DIGs. The Supreme Court dismissed as improvidently granted two cases: United States v. Texas was DIG'd. Justice Sotomayor dissented from the DIG. Arizona v. San Francisco was DIG'd.…

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

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,…

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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 Ruling in "Remain in Mexico" Case is a Win for Biden, Migrants - and Fans of Presidential Power

The ruling likely allows end of a cruel policy - but also reinforces broad presidential control over immigration.

Reason

Which Circuit Has Justice Ketanji Brown Jackson Been Assigned to?

Each of the 13 federal circuit courts of appeals gets a Justice assigned to it, mainly to handle one-Justice applications (for stays, extensions of time, and the like) coming from that Circuit. They are often given to Justices based on their connections to the circuit. Several Justices have the circuits…

The Guardian - US

I read the 1973 Roe v Wade ruling to see what we lost. Everyone should

What I admire most is how the ruling, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion. It is beautiful

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

Justice Breyer's Final(?) Majority Opinion Is A Win For Federal Power

Justice Breyer consistently resisted conservative efforts to constrain federal power, so his opinion in Torres is a fitting swan song.

Reason

Chief Justice Roberts Lost His "Long Game"

The road from Citizens United to Dobbs was paved with saving constructions.

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