Tom Goldstein has a nice post on SCOTUSBlog explaining why almost everythign you read about the Supreme Court is wrong. I say “almost” because many of his points have been made on this blog repeatedly (see, e.g., here and here). Among other things, he notes that ideological partisans overstate the degree to which the Court […]
Archive | Supreme Court
Kagan’s Testimony on Property Rights
By Ilya Somin on July 1, 2010 6:54 pm in Eminent Domain, Judicial Nominations, Kagan Nomination, Kelo, Property Rights, Supreme Court
In an exchange with Republican Senator Charles Grassley yesterday, Elena Kagan made some interesting comments on property rights and the controversial Kelo decision: GRASSLEY: …. I want to start with private property. The takings clause of the Fifth Amendment states, “Nor shall private property be taken for public use without just compensation.” The plain language […]
The Sotomayor switcheroo, and the Kagan nomination
Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times. On Thursday (or perhaps, early on Friday), I will be testifying on the Kagan nomination. My written testimony will […]
One More 5-4 Decision
This morning, with its end-of-term orders, the Supreme Court issued a 5-4 per curiam opinion in Sears v. Upton, a capital habeas case in which five justices voted to grant the petition of ceriorari, summarily vacate the decision below, and remand for further proceedings. According to the brief per curiam opinion, after determining that Sears […]
Podcast on the McDonald decision
Sixteen minutes, taped this afternoon, for iVoices.org. MP3 here. I also discussed the decision on Denver’s Caplis & Silverman radio show. Dennis Henigan, from the Brady Center, was the guest after me. The show’s archive link is here. Ignore the archive’s caption, which incorrectly states, “Do you agree with the Court? David Koppel opposes the […]
Free Enterprise Fund: The Lopez of Separation of Powers Doctrine
I have long thought that if the Court invalidated any provision of Sarbanes-Oxley in Free Enterprise Fund v. PCAOB, 08-861, it would base its decision on the Act’s dual good-cause removal restrictions for Board members. First, because that was the strongest claim as a matter of doctrine. But also because doing so wouldn’t break much […]
Today’s Opinions
The crush of patent lawyers seeking to learn the outcome in Bilski appears to have overwhelmed SCOTUSBlog‘s servers — at least for those who weren’t among the first 6,000 or so to load the post with the CoverItLive plug-in. For the rest of us, here’s what I can tell you: The Supreme Court holds in […]
More on Morrison
In addition to John’s shrewd post about Morrison below – I suspect the post is right that it might turn out to be a “zombie” precedent – take a look at University of Georgia securities law expert Professor Margaret Sachs’ observations from a global securities law perspective at Opinio Juris today. (Update: Also take a […]
The Supreme Court and Extraterritoriality: Yesterday’s decision in Morrison v. National Australia Bank
The “Honest Services” fraud cases are getting all the attention. But I think the relatively little-noticed decision in Morrison v. National Australia Bank, 08-1191, may be as significant (although I have my doubts, as set forth below, about its potential long-term impact). The case involved a claimed securities fraud scheme that mostly occurred in Australia […]
Kagan, Stevens and Brennan on Bork
By Jonathan H. Adler on June 24, 2010 12:23 pm in Judicial Nominations, Kagan Nomination, Supreme Court
Elena Kagan may have thought (in 1997) that the Bork confirmation hearings were “the best thing that happened, ever happened, to constitutional democracy,” and welcomed the defeat of his confirmation. The Justice she would replace, Justice John Paul Stevens, appears to have had a different view. As legal journalist Seth Stern notes, after Bork was […]
Seven Down, Four to Go
The Supreme Court issued seven decisions in argued cases this morning. SCOTUSBlog has the details. This leaves four big cases yet to be decided: Bilski v. Kappos (business method patents), McDonald v. Chicago (incorporation of Second Amendment), Free Enterprise Fund v. PCAOB (appointments clause challenge to Sarbanes-Oxley), and Christian Legal Society v. Martinez (state university […]
Today’s Interesting Line-Up
This morning the Supreme Court released another 5-4 opinion with an interesting line-up of justices. In Magwood v. Patterson, which considered whether a habeas petitioner’s challenge to resentencing after the grant of a habeas petition is an unreviewable “second or successive claim,” Justice Thomas wrote the opinion for the Court, siding with the habeas petitioner […]
Material Support Statute Upheld
This morning the Supreme Court upheld the constitutionality of the federal law barring “material support” to designated terrorist organizations, at least as applied to the type of support the plaintiffs sought to provide in this case. Chief Justice Roberts wrote for the Court in Holder v. Humanitarian Law Project, joined by the Court’s conservatives and […]
Kagan and DeShaney
By Jonathan H. Adler on June 21, 2010 9:05 am in Judicial Nominations, Kagan Nomination, Supreme Court
Linda Greenhouse has an interesting column on then-Supreme Court clerk Elena Kagan’s cert memo for Justice Thurgood Marshall on whether to accept cert in DeShaney v. Winnebago County Social Services Department. UPDATE: I’m reminded that the WSJ‘s Jess Bravin has an earlier report on Kagan’s involvement with DeShaney in May.
Unclear Outcome in Key Supreme Court Property Rights Case
By Ilya Somin on June 17, 2010 4:55 pm in Due Process Clause Property Rights, Property Rights, Supreme Court
The Supreme Court has just issued its opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a key property rights case. Unfortunately, the most important constitutional issue at stake – what, if any government actions count as “judicial takings” remains mostly unresolved. I summarized the facts of the case here: Under Florida’s […]