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The Latest Breaking News from Scalia

"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

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.

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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.

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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…

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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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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…

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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.

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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…

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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…

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Justice Barrett on the Takings Clause and the Police Power

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

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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…

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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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Why Does The Phrase "Not Herein Otherwise Provided For" Appear In The Appointments Clause?

Earlier in the Constitutional Convention, the legislature had the power to appoint judges, ambassadors, and the treasurer. But that power was later stripped.

Reason

In Trump v. Anderson, the Respondents' Theory Would Render Unconstitutional Every Speaker and President Pro Tempore Since 1789, as Well as President Grant's VP and Presidential Candidate George McGovern

Justice Scalia erred because there are no “Officers of the United States” appointed outside Article II, Section II.

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Natelson on the Offices and Officers of the Constitution in 1788 and 1868

"Mr. Tillman has been joined by another legal scholar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases."

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The 6/13/2000 Memorandum to Chief Justice Rehnquist: "Compensation Increase for Justices—Response to Justice Thomas—Guidance Needed"

Some actual reporting by ProPublica.

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Jefferson Davis: President of the United States?

Five Responses to the Jefferson Davis Horrible

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Farewell to the Mayflower

Next year, the Federalist Society National Lawyers Convention will (likely) be at the Washington Hilton.

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Michigan Court of Appeals Upholds Ban on Guns at University of Michigan

From Wade v. Univ. of Michigan, decided yesterday by the Michigan Court of Appeals (Judges Mark Cavanagh and Deborah Servitto); the ban covered all university property, which I take it includes dorms and open spaces: In Bruen, the Court stated that it was "settled" that arms carrying could be prohibited…

Reason

Conservatives Should Not Be Surprised By Justice Barrett's Cautious Approach

Barrett was added to the SCOTUS short-list only seventeen days after she was confirmed to the Seventh Circuit.

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Progressives Should Be Grateful For President Trump's Not-So-Conservative SCOTUS Picks

Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong.…

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Roberts the Creditor, Roberts the Debtor

Kavanaugh the follower.

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Justice Thomas Declines To Extend Non-Originalist Confrontation Clause Precedent

Don't act surprised when Thomas narrowly reads made-up Brennan decision from 1968 that itself reversed precedent.

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Justice Stevens's Papers Reveal How The Fortune Cookies Were Baked In Lawrence v. Texas

Believe it or not, Justice Kennedy's final opinion toned down some of the "awkward language."

Reason

A Tale of Two Originalists

Justice Gorsuch v. Justice Thomas in Brackeen.

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