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The Latest Breaking News from Scalia

The Best Defense of Justice Amy Coney Barrett: No One Else Could Have Been Confirmed To Replace RBG Before The Election

"Republicans couldn’t have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee."

Reason

Sixth Circuit Rejects Qualified Immunity for Kim Davis for a Third Time

The message that public officials are required to follow the law, even if they disagree with it, does not seem to have gotten through.

Reason

Justice Thomas Calls Again for Overruling Hill v. Colorado

But though other Justices had expressed doubt about Hill before, only Justices Thomas and Alito noted their willingness to grant review in this case.

Reason

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The Federal Supremacists Write a Ticket Good for One Ride in Williams v. Reed

But Justice Thomas is still the only Justice who (correctly) concludes that Haywood v. Drown (2009) was incorrectly decided.

Reason

Judge Ho's Decision To Appoint Paul Clement In United States v. Adams (Updated)

This decision may not pan out for the court.

Reason

The Hughes Court Repudiated FDR In Humphrey's Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey's Executor

The separation of politics, not the separation of powers, will decide Wilcox v. Trump.

Reason

Justice Thomas Is Not Happy with the Sixth Circuit (Again)

A dissent from the denial of certiorari in another Sixth Circuit Habeas case.

Reason

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The Birthright Citizenship Executive Order

Much has been written about President Trump's executive order concerning birthright citizenship. I'll add a few thoughts here. First, this… The post The Birthright Citizenship Executive Order appeared first on Reason.com.

Reason

Prof. Michael McConnell on The Supreme Court's Religion Docket

I'm delighted to be able to pass along this item from my Stanford colleague Prof. Michael McConnell (Stanford Law School),… The post Prof. Michael McConnell on The Supreme Court's Religion Docket appeared first on Reason.com.

Reason

Second Amendment Roundup: The Second Amendment Dialogue at Fed Soc's National Convention

"Applying the Text and History Methodology to Looming Second Amendment Battles After Rahimi" was the topic of a session on… The post Second Amendment Roundup: The Second Amendment Dialogue at Fed Soc's National Convention appeared first on Reason.com.

Reason

Could President Trump Recess Appoint His Entire Cabinet Under Justice Scalia's Noel Canning Concurrence?

Would a person serving under the Vacancies Reform Act, who resigns, create a vacancy for purposes of the Recess Appointments Clause? Would a presidential adjournment of Congress be an inter-session or an intra-session recess?

Reason

An Interview with Judge James C. Ho

Q: Judge Amul Thapar of the Sixth Circuit recently criticized the law clerk hiring boycott that you and others launched… The post An Interview with Judge James C. Ho appeared first on Reason.com.

Reason

President Elect Trump's Tweet About Recess Appointments

I look forward to four more years of outrage based on misunderstandings of the Constitution.

Reason

"Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary"

You could also call this "Why people who hate Trump should love reining in agencies' power to determine their own power."

Reason

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Mich. S. Ct. Declines to Review Decision Upholding U. Michigan Gun Ban

The case is Wade v. Univ. of Mich.; as is common for such denials of review, the majority didn't offer… The post Mich. S. Ct. Declines to Review Decision Upholding U. Michigan Gun Ban appeared first on Reason.com.

Reason

Alliance for Hippocratic Medicine on Remand—Still Struggling with Standing

No, the U.S. Court of Appeals for the Fifth Circuit's initial standing rulings were not faithful applications of Supreme Court precedent.

Reason

Banana Splits

I appreciate the replies from Orin, Will, and Sam. We have very different conceptions on what role a scholar should play and what role a judge should play. My writings in this area are both retrospective and prospective. I look backwards to see what qualifications a judge had at the…

Reason

Justice Thomas Explains Why The President, Vice President, Speaker and Senate President Pro Tempore Cannot Be "Officers of the United States"

Justice Thomas demonstrates why Justice Scalia erred in his letter to Tillman.

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Reason

Faking Out The Supreme Court

One of my favorite Scalia lines came in Clinton v. City of New York. In dissent, Justice Scalia would have upheld the constitutionality of the Line-Item Veto Act. He explains that the law in fact does not give the President the ability to veto individual lines of a budget--a power…

Reason

The Two Edges of Tradition: "Adverse Possession" and "Use It Or Lose It"

If the government exercises a power it lacks for a long time, it can keep exercising that power. But if a government does not exercise a power it has, it loses that power.

Reason

Rahimi, Meenie, Miney, Mo; After Only Two Years Bruen's Gotta Go!

In November, I wrote that the Fifth Circuit's Rahimi decision "was a faithful application of Bruen." Seven months later, now having read the Supreme Court's Rahimi decision, I stand by what I wrote. After Justice Thomas's dissent, the most intellectually honest opinion in Rahimi was Justice Jackson's concurrence. Jackson explained…

Reason

Judicial Boycotts of Non-Elite Schools

In April 2009, a law student at American University asked Justice Scalia how a student from her school could become "outrageously successful" without "connections and elite degrees." (The clip begins around 52:00.) Scalia laughed out loud. He answered, "Just work hard and be very good." But then he digressed to…

Reason

Justice Barrett on the Takings Clause and the Police Power

"Though at times the two seem more like in-laws than soulmates."

Reason

Do Judges Also "Berate" The Press?

On Monday, the Supreme Court heard oral argument in Murthy v. Missouri. Justices Kavanaugh and Kagan--who both worked in the White House--stated that it was fairly common for government officials to "berate" the press. Justice Kavanaugh observed that "experienced government press people throughout the federal government . . .. regularly…

Reason

Judges Make Law, But . . .

I was revising a paper on the relationship between equity and property, and I had occasion to look up this classic line from Justice Scalia: I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense "make" law. But…

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