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The Latest Breaking News from Sotomayor

When I see an animal that looks like a duck, swims like a duck, and lays eggs like a duck…

…I see a duck-billed platypus. Cf. Garland v. Cargill (Sotomayor, J., dissenting) ("When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck."). Alas, a platypus does not quack. But it is not pleasant when a…

Reason

Justice Thomas Reverses President Trump's Executive Overreach in Cargill v. Garland

Justices Sotomayor, Jackson, and Kagan disregard ATF’s “about face.”

Reason

Justices Agree on Constitutionality of Trademark Restriction, Disagree on How to Approach Such Questions

The underlying methodological debate might also bear on free speech disputes more broadly.

Reason

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NRA v. Vullo and Trump v. Hawaii

Citing Governor Cuomo's tweets harkens back to, and perhaps foreshadows, litigation against President Trump.

Reason

Unanimous First Amendment Victory for the NRA (Represented by the ACLU)

From Justice Sotomayor's opinion today in NRA v. Vullo (the NRA was represented by the ACLU, with David Cole arguing before the Court; by William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors; and by me): [A.] Six decades ago, this Court held that a government entity's…

Reason

Supreme Court OT2023 at the End of May

The justices have been slow and quite agreeable -- so far.

Reason

CFPB v. CFSAA: Originalists v. Traditionalists

The Court's originalists and traditionalists break out into their camps.

Reason

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Why did Justices Sotomayor, Kagan, and Jackson Dissent in Robinson v. Landry?

And what would have happened if Justices Thomas, Alito, and Gorsuch did not vote to grant the stay?

Reason

Congratulations to Sam Bray, Whose National Injunction Article Was Cited Three Times by Justices Today

That happened in yesterday's opinions respecting the stay in Labrador v. Poe, twice in Justice Gorsuch's concurrence (joined by Justices Thomas and Alito), and once in Justice Jackson's dissent (joined by Justice Sotomayor). Nice! For Sam's substantive analysis of Labrador, see this post.

Reason

Who is responsible for the 5th Circuit's alleged "troubling habit of leaving 'administrative' stays in place for weeks if not months"?

The worst offender is not Jim Ho, but Carl Stewart.

Reason

Were There Last Minute Changes to Trump v. Anderson?

There are reasons to suspect the justices were wrangling over language up until the last minute.

Reason

Oral Arguments in Trump v. Anderson Part IV: Justice Sotomayor and Kagan get the line between national power and federalism

The states do not need Section 3 to impose qualifications on state-created positions. But only the national government should decide questions about the President.

Reason

Oral Arguments in Trump v. Anderson Part III: Justice Kavanaugh Gets Griffin's Case and Justice Barrett gets FedCourts

Why did Jonathan Mitchell not vigorously defend Griffin's Case and Chief Justice Chase? And Mitchell missed Justice Barrett's question about direct/collateral challenges due to his refusal to accept the sword-shield dichotomy.

Reason

Oral Arguments in Trump v. Anderson Part II: Justice Jackson Gets "Office under the United States"

Justice Jackson explained that an ambiguous text should be interpreted in favor of expanding democracy. But Mitchell's concern about Foreign Emoluments Clause "boomerang" could have cut off a path of complete victory.

Reason

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Attending Oral Argument in Trump v. Anderson

Not exactly what I expected, but a very rewarding experience.

Reason

Court Refuses to Block West Point Use of Race in Admissions, Doesn't Express Any Substantive Opinion on Question

From today's order in Students for Fair Admissions v. USMA at West Point: The application for writ of injunction pending appeal presented to Justice Sotomayor and by her referred to the Court is denied. The record before this Court is underdeveloped, and this order should not be construed as expressing…

Reason

Oral Argument in Devillier v. Texas Suggests Victory for Property Rights Likely

Both conservative and liberal justices seem to oppose letting states get away with violating the Takings Clause merely because Congress hasn't enacted a specific law enforcing it against them.

Top News

First Female Supreme Court Justice Sandra Day O'Connor Memorialized Today

Explore the legacy and impact of late Supreme Court Justice Sandra Day O'Connor and the heartfelt tributes expressed during memorial events.

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Reason

My Emory Law op-ed on 303 Creative LLC v. Elenis

More on an important free-speech case from the recent Supreme Court Term

Reason

Justice Sotomayor Defends Racial and Ethnic Classifications Relied Upon by Harvard and UNC

She doesn't do a very good job of it.

Reason

New Divided Argument Episode: My Despised World

After a month-long hiatus, Dan Epps and I have posted a new, 2-hour-long podcast episode: My Despised World (Dan came up with the title.) Most of it discusses two of June's jurisdictional decisions -- Mallory v. Norfolk Southern Railway, and United States v. Texas -- with a shorter discussion of…

Reason

More on Standing in the 303 Creative Case

A response to my critique of the Court's new standing jurisprudence.

Reason

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.…

Salon

SCOTUS returns to "separate but equal"

How the right made discrimination a First Amendment issue

Reason

Justice Sotomayor and the Manipulation of "Race"

Justice Sotomayor decides who is a person of color based on whether it supports her views regarding structural racism.

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