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The Latest Breaking News from Gorsuch

Seven Reschedules, Four Relists, Zero Joins for Justice Gorsuch's Chevron Dissental

Justice Gorsuch is still at Step 0 of overruling Chevron.

Reason

Justice Gorsuch Argues the Jury Trial Clause Requires 12-Person Juries in Serious Criminal Cases

From Justice Gorsuch's dissent from denial of certiorari in Khorrami v. Arizona: The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury. On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U. S. Constitution guarantee individuals like him…

Reason

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

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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 III: Misconstruing the State Interest

Here I will consider how the MFN theory was expanded to its present bloated proportions. Recently members of the Court, and sometimes a majority, have developed variants of MFN that are far more far-reaching and skeptical than the modest heightened scrutiny suggested by Lukumi. The key innovation, pioneered by Justice…

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

West Virginia v. EPA: Questions About "Major Questions"

The major questions doctrine inverts the Chevron doctrine, is indeterminate, and, as a practical matter, will encourage courts to engage in something more akin to political punditry than law.

Reason

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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

California Enacts Gun Control Law Modeled on Texas' SB 8 Anti-Abortion Law

Both laws seek to evade judicial review by delegating enforcement exclusively to private parties.

Reason

Five Thoughts About The Respect for Marriage Act

Today the Respect for Marriage Act passed the House by an unexpectedly large margin. And there is movement afoot to see if the bill will garner ten Republican votes to break a Senate filibuster. Ilya addressed the bill here. I'd like to add five more thoughts. First, one of the…

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

Oklahoma, O.K.!?

I've now finished reading Oklahoma v. Castro-Huerta. I'll say this much: I found Justice Gorsuch's dissent here far more persuasive than I found his majority opinion in McGirt. Yet, if McGirt had come out the other way, there probably would have been no need for the Court to decide Castro-Huerta.…

Reason

"Your Money Or Your Life"

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

Reason

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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,…

Reason

Snark in West Virginia v. EPA

One of my least favorite words in legal discourse is "interesting." Sometimes it is a useful way to describe something of interest, but far too often it is a passive aggressive way of criticizing something. "Oh well that is very interesting." After reading West Virginia v. EPA, I will add…

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Reason

Justice Gorsuch Cancels Woodrow Wilson

The one President everyone agrees should be cancelled.

Reason

No Offense, But It's Just A Prayer

Kennedy tells people to get over prayer in public unless there is direct coercion.

Reason

Why Didn't Kennedy Formally Overrule Lemon?

There were no Establishment Clause claims present, and Kennedy did not ask the Court to reverse Lemon.

Reason

Farewell to Footnote 3 of Trinity Lutheran

In Carson v. Makin, the Chief Justice stealthily eliminated the status/use distinction.

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

Red Flag June Continues As Lemon Is Finally Interred

Justice Gorsuch stabs the final pencil into the Lemon Test.

Reason

And Roberts Was His Name-O

The Chief treats in his dissent.

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