The Supreme Court has long refused to render formal advisory opinions, which is to say (quoting Black’s Law Dictionary), “nonbinding statement[s] … of [the Court’s] interpretation of the law on a matter submitted for that purpose.” Occasionally, majority opinions also say that they decline to opine on an issue that’s not squarely before them, because […]
Archive | Supreme Court
Root on Business and the Roberts Court
Reason‘s Damon Root makes a point that’s been made many times on this blog: Characterizing the Roberts Court as “pro-business” is not very illuminating, nor does it fairly characterize the course of the Court’s jurisprudence. The same Court that limited federal wetland regulation in Rapanos v. United States triggered a vast regulatory expansion in Massachusetts v. […]
Copyright and Free Expression:
By David Post on March 13, 2011 9:50 pm in Copyright, First Amendment, Freedom of Speech, Supreme Court
Last week brought the news that the Supreme Court has granted cert in a pretty interesting copyright case case from the 10th Circuit, Golan v. Holder, that promises to raise some important questions at the ever-elusive copyright/first amendment boundary. The background is this: the US signed on to the Berne Convention on Literary Property, the […]
The Supreme Court’s relisted cases
I discuss the cases (apparently) relisted by the Supreme Court here. I’m in the process of adding a couple of state-court cases I mistakenly left off, including one interesting-looking case Greenwire’s Lawrence Hurley told me about involving a warrantless search of private residential property that a state court upheld as an “administrative” search. In particular, […]
Funeral Protesters Win at High Court
Today the Supreme Court issued its opinion in Snyder v. Phelps. The funeral protesters won 8-1. Chief Justice Roberts wrote for the Court. Justice Breyer concurred, and Justice Alito dissented. The majority opinion concludes: Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of […]
“Oral Arguments Are About the Justices”
The Washington Post‘s Robert Barnes reports that the Supreme Court’s justices are “talking more and listening less” at oral argument. Oral arguments at the high court are a fast-paced hour of queries and hypotheticals, commentaries and critiques – and interruptions. Advocates trying to answer the barrage of questions quickly learn a truism of the court: […]
Interesting Religion Cases at the Supreme Court’s Conference Friday
Cert was denied in Cooke v. Tubra, 10-559, but the Court has relisted in the other case I bored you about last week, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 10-553, suggesting the Court is taking a careful look at it. Hosanna-Tabor involves whether the judicially recognized “ministerial exception” to the Americans with Disabilities […]
Interesting Religion Cases at the Supreme Court’s Conference Tomorrow
By John Elwood on February 24, 2011 11:56 am in Religion, Religion and the Law, Religious Freedom, Supreme Court
I see that two religion cases I’ve been watching are both on for the Supreme Court’s case conference tomorrow. Cooke v. Tubra, 10-559, which I’ve previously written about here, presents the question whether the First Amendment bars a pastor’s defamation claim against the church that employed him when the claim is based entirely on statements […]
Questioning Justice Thomas’ Lack of Questions
This past weekend, the NYT‘s Adam Liptak reported that it has been five years since Justice Clarence Thomas has asked a question at oral argument. Justice Thomas has given various and shifting reasons for declining to participate in oral arguments, the court’s most public ceremony. He has said, for instance, that he is self-conscious about the […]
Larry Tribe Caught Up in Post-Employment Restrictions in AEP Case
Lawrence Hurley at Greenwire (now up on the NY Times website) is reporting that the Justice Department asked that Professor Larry Tribe’s name be stricken from the brief he filed in American Electric Power v. Connecticut, 10-174, now pending before the Supreme Court, citing post-employment restrictions for former employees. In December, Tribe left DOJ after […]
“Health Laws of Every Description”: Obamacare and Original Meaning
By David Kopel on February 4, 2011 6:58 pm in Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, Supreme Court
Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland. Gibbons is certainly a good foundation for advocates of strong […]
The Supreme Court Today: Strong Words On Habeas
As an alumnus of the Ninth Circuit, Justice Kennedy has at times been particularly critical of that court when he thinks it has applied the law unreasonably. That was very much on display in Justice Kennedy’s majority opinion in today’s decision in Harrington v. Richter, in which the Court held that the Ninth Circuit had […]
Supreme Court Relist Watch
I posted this week’s Relist Watch over on SCOTUSBlog, which has the virtue of (more or less) built-in hyperlinks to all the relevant documents. Three new relists this week, plus additional relists in three cases I’ve been watching. Let me know if you spotted a relist that I haven’t.
Supreme Court Comedy Revisited
In 2005, Boston University’s Jay Wexler examined joke-telling by Supreme Court justices during oral argument. (See also here.) Today’s Washington Post reports on a follow up study by Ryan Malphurs analyzing and categoring the justices’ use of humor. In particular, Malphurs finds that few jokes are aimed at the advocates or their arguments. More often […]
Kansas Seeks to Join Anti-Obamacare Lawsuit, Bringing the Number of States Challenging the Law to 26
By Ilya Somin on January 13, 2011 11:27 pm in Federalism, Health Care, Individual Mandate, Public Opinion, Supreme Court
The state of Kansas recently asked to join the lawsuit challenging the constitutionality of the Obama health care plan filed by 20 state governments and the National Federation of Independent Business. Ohio, Wisconsin, and Wyoming are also seeking to join the multistate lawsuit, while Virginia and Oklahoma have filed separate challenges to the law. That […]