Michael Dorf has an interesting and careful post where he analyzes whether last Friday’s decision in Garden State Equality v. Dow (the New Jersey civil unions case discussed here) raises a question of federal law reviewable by the Supreme Court. While the opinion is ambiguous with respect to the key question, he concludes that the […]
Archive | Supreme Court
New Talent for October Oral Arguments
The Supreme Court’s 2013 October Term begins in a few weeks, and while the hearing list has not yet been released, the arguments are shaping up to be interesting. — Erin Murphy, my immensely talented co-clerk and “protege of former Solicitor General Paul Clement” will be arguing McCutcheon v. Federal Election Commission, an interesting challenge […]
Cert Petitions Filed in Contraception Mandate Cases
By Jonathan H. Adler on September 22, 2013 11:58 am in Health Care, Religious Freedom, Supreme Court
Petitions for certiorari were filed in two cases challenging the Obamacare contraception mandate last week. Both cases involve private, for-profit employers. The first was filed by Conestoga Wood Specialties Corporation, seeking review of the decision by the U.S. Court of Appeals for the Third Circuit holding, among other things, that corporations may not raise free […]
Don’t Cry for Argentina
It’s not every day that a sovereign nation files a petition for certiorari in the Supreme Court. This year, however, Argentina has filed multiple petitions, and another could be on the way. The South American nation is particularly eager to get the Court to review adverse rulings from the U.S. Court of Appeals for the […]
VA Must Extend Benefits to Married Same-Sex Couples, District Court Says
By Dale Carpenter on August 30, 2013 3:25 pm in Beyond DOMA, Constitutional Law, Equal Protection, Sexual Orientation, Supreme Court
In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status. So far, in contrast to their almost open resistance to Lawrence […]
Incrementalism Versus the “Long Game”
There are two additional passages in Adam Liptak’s interview with Justice Ginsburg worth highlighting. The first describes Chief Justice Roberts’ alleged strategy for shifting the law in a rightward direction. Some commentators have said that the two voting rights decisions are an example of the long game Chief Justice Roberts seems to be playing in several areas […]
Justice Ginsburg on “Judicial Activism” in the Roberts Court
Justice Ruth Bader Ginsburg believes the Roberts Court is “one of the most activist courts in history,” according to a widely cited interview with the NYT‘s Adam Liptak. “Activist” is a slippery label, often indicating nothing more than disagreement with a Court’s decision in a given case. fortunately Justice Ginsburg provided Liptak with a definition. Specifically, Ginsburg […]
Sherry (again) on Somin and Kerr
By Prof. Suzanna Sherry (Vanderbilt), guest-blogging on August 25, 2013 4:15 pm in Constitutional Law, Judicial Power, Supreme Court
I don’t know how Ilya and Orin and other bloggers do it. Like me, they have day jobs, but they seem to find time to write multiple careful and thoughtful posts! The press of other work means that this will probably be my last post, so I’ll try to be concise and complete. I thank […]
A Response to Kerr and Somin on Sherry
By Prof. Suzanna Sherry (Vanderbilt), guest-blogging on August 22, 2013 9:55 am in Constitutional Law, Judicial Power, Supreme Court
Orin Kerr and Ilya Somin have posted thoughtful responses to my essay, Why We Need More Judicial Activism, on which the Green Bag recently published a micro-symposium. Orin’s and Ilya’s posts deserve what I hope will be an equally thoughtful reply, and I thank Eugene Volokh for allowing me to post this reply as a […]
An Excellent Example of a Scholarly Amicus Brief
Eugene had some posts a while back about good amicus briefs, and now that I’m here I wanted to mention an unusually good academic amicus brief recently filed at the Supreme Court — that of Professor Stephen E. Sachs as amicus curiae in Atlantic Marine v. U.S. District Court (although the real respondent is J-Crew […]
The Fiduciary Foundations of Federal Equal Protection
By David Kopel on August 4, 2013 3:46 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Education, Equal Protection, Fifth Amendment, Fourteenth Amendment, Originalism, Supreme Court
Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of […]
Libertarianism and the Supreme Court
By Ilya Somin on July 29, 2013 6:14 pm in Commerce Clause, Federalism, Libertarianism, Property Rights, Supreme Court
Simon Lazarus of the liberal Constitutional Accountability Center is correct to point out that the Supreme Court’s decisions have trended in a somewhat libertarian direction over the last year. I also agree with many of co-blogger Randy Barnett’s explanations for why this has happened. In addition to the cases cited by Lazarus, it’s also worth […]
Former Bush Attorney General Alberto Gonzales Responds to my USA Today Op Ed on Unanimous Supreme Court Decisions and Executive Overreach
By Ilya Somin on July 29, 2013 5:07 pm in Constitutional Law, Executive Branch, National Security, Supreme Court, War on Terror
Former Bush Administration attorney general and White House counsel Alberto Gonzales has written a response to my USA Today op ed on unanimous Supreme Court opinions and executive overreach. Gonzales largely agrees with my assessment of the Obama administration’s record, but – not surprisingly – he takes issue with my argument that Obama’s overreach was […]
White House: No Plans To Pull Back on Recess Appointments Case
People with too much time on their hands know that I’ve made a cottage injustry out of addressing questions about whether new appointments to the NLRB would moot the NLRB v. Noel Canning case before the Supreme Court, involving the constitutionality of President Obama’s January 2012 recess appointment of three NLRB members. I’ve also heard […]
That Reminds Me: Examples and Analogies
When Utah sued the federal government over the 2000 census, a census-taking technique called “hot-deck imputation” was on the hot seat. Utah was none too happy to have lost a representative based on its population estimate, so it argued that “imputation”—inferring who lives in a residence by looking at like neighbors—was essentially “sampling,” which is […]