The Supreme Court released decisions in four argued cases today, the 64th day of the Term (thus tying OT2007 and OT1984 for the latest initial hand-down days of the postwar period, as outlined in my last two dull posts on the subject here and here). I am attempting to teach my son about the humor […]
Archive | Supreme Court
Sotomayor’s First
The Supreme Court’s newest justice, Sonia Sotomayor, authored the Court’s first signed majority opinion of the term, a unanimous opinion in Mohawk Industries v. Carpenter. (Justice Thomas wrote an opinion concurring in part and concurring in the judgment.) (HT: How Appealing)
Supreme Court Briefing in the Year 2030
I had a dream last night that it was 2030. I was doing a virtual-reality-cast about how briefing Supreme Court cases has changed since the 20th Century. Here’s what I remember saying in the dream: Robot45, thanks, it’s a pleasure to be here! I’m one of the old-fashioned dinosaurs from the MSB — Main Stream […]
A very Gura Christmas
As part of our special Christmas and Hanukkah programming on the VC, here is a 50-minute podcast interview with Alan Gura. It’s all about McDonald v. Chicago, particularly about the meaning of the Privileges or Immunities clause and of the Due Process clause.
So . . . Where Are The (Argued) Supreme Court Cases? Part Deux
The Court missed its hand-down opportunities this week (although the Justices favored us with another summary reversal on Monday, with Porter v. McCollum). Orders are expected Monday, and thus, as Roy Englert noted in the comment thread of my last post on this subject, it is probably out as a hand-down day for opinions in […]
Ineffective Ineffective Assistance of Counsel Decisions
This week, for the third time this term, the Supreme Court reversed a lower court’s handling of an ineffective assistance of counsel claim in a capital case with a per curiam opinion. In the first two cases, Bobby v. Van Hook (6th Circuit) and Wong v. Belmontes (9th Circuit), the Court vacated lower court decisions […]
So . . . Where Are The (Argued) Supreme Court Opinions?
As Thanksgiving draws near, I began wondering where the argued Supreme Court opinions are. Sure, we’ve had three per curiam summary reversals, but usually by this point in November, we’ve had at least an opinion or two released in an argued case. The next hand-down opportunity comes on November 30, and if we get an […]
McDonald amicus: Don’t trust Fairman and Berger
By David Kopel on November 23, 2009 11:39 pm in Constitutional History, Fourteenth Amendment, Legal Scholarship, Supreme Court
Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.” To make a long story short, during the latter half of […]
Against Congressional Briefs
I have occasionally criticized judges and Justices who use their official positions to try to influence the legislative process. In this post I want to criticize the mirror image: Legislators who sign on to “congressional briefs” in the Supreme Court, such as the one David Kopel links to below, designed to influence the outcome of […]
Institute for Justice brief in McDonald v. Chicago
Counsel of record is Clark Neilly, who was Alan Gura’s right-hand man in Heller. The most important part of the brief is Part III, which begins: “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.” The brief then goes on to argue that the […]
Predicting McDonald
By Randy Barnett on November 18, 2009 9:52 am in Civil Rights, Constitutional History, Constitutional Theory, Guns, Originalism, Property Rights, Supreme Court, Uncategorized
Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge […]
How I’d Approach the Privileges or Immunities Issue in McDonald
Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, […]
McDonald v. Chicago and Gilbert & Sullivan: The hidden connection!
In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience. You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show […]
NRA brief in McDonald v. Chicago
By David Kopel on November 17, 2009 7:59 pm in Constitutional Theory, Guns, Originalism, Supreme Court
Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court […]
Robert Tsai on ‘Eloquence and Reason’
By Kenneth Anderson on November 15, 2009 2:20 pm in Academia, Constitutional History, Constitutional Theory, Freedom of Speech, Supreme Court
A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai – Eloquence and Reason: Creating a First Amendment Culture. Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a […]