Over at Concurring Opinions, Gerard Magliocca notes that the Senate Democrats are considering a rule change that would bar filibusters for executive branch nominees, and states that “[p]art of the plan (or bluff) involves the confirmation of all the President’s nominees for the vacancies on the NLRB. These are the same vacancies that the President […]
Archive | Supreme Court
Power Verbs
Here are three sentences from Paul Clement’s Supreme Court brief against the Affordable Care Act’s individual mandate. When you see bolded language, I’ve replaced Clement’s evocative verb choice with typical lawyer talk. Take a stab at guessing what he actually wrote each time: In all events, the federal government gains nothing by asking the Court […]
The Supreme Writer on the Court: The Case for Kagan
Justices Scalia and Kagan have joined forces on deer-hunting trips. Do they share the same gift for writing as well? In only a few years’ time, Kagan’s engaging yet biting opinions and dissents have astonished a once-skeptical Left — and have catapulted her to the top of the liberal bloc, if not the entire Court. […]
Video Interview with Elena Kagan
Justice Elena Kagan recently did a video interview with Jeffrey Rosen. As with most Supreme Court justices, Kagan is very careful about what she says in public about her colleagues and the cases before the Court. But there are some interesting moments nonetheless, such as her discussion of the difficulties the justices experience in deciding […]
The Supreme Writer on the Court: The Case for Roberts
Here are two passages from a recent Supreme Court case called Already LLC v. Nike. Guess which Justice wrote each. Passage One “This brief, separate concurrence is written to underscore that covenants like the one Nike filed here ought not to be taken as an automatic means for the party who first charged a competitor […]
Indian Commerce Clause in the Supreme Court
By David Kopel on July 1, 2013 7:43 pm in Child Protection, Commerce Clause, Constitutional History, Constitutional Law, Federalism, Racial Discrimination, Supreme Court
Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins: This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified […]
No Jurisdiction to Review Proposition 8
A divided Supreme Court concluded that it lacks jurisdiction to review the constitutional challenge to Proposition 8, and the line-up is an odd one. The Chief writes the majority, joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissents, joined by Justices Thomas, Alito, and Sotomayor. From the Chief Justice’s opinion: The public is […]
DOMA Goes Down
In a 5-4 opinion, authored by Justice Kennedy, the Supreme Court declares Section 3 of DOMA unconstitutional. It’s an Equal Protection holding, informed by federalism principles. Here is how Justice Kennedy’s opinion for the Court concludes: The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit […]
Kennedy’s Conspicuous Silence in Kebodeaux
Justice Kennedy clearly cares about federalism. He has written more than a few opinions extolling the importance of “dual sovereignty” and maintaining judicially enforceable limits on the scope of federal power. Every so often, however, there comes a case in which Justice Kennedy fully and silently joins a majority opinion that embraces an incredibly expansive […]
Today’s Most Interesting Line-Up
Today the Court issued two traditional 5-4 decisions — Shelby County (the Voting Rights Act case) and Koontz (see here and here). It did not issue either gay marriage decision. It did, however, release Adoptive Couple v. Baby Girl, a case with an interesting line-up. Justice Alito, writing for the Court, held that the relevant […]
Fisher Mystery
Given that the Court issued a rather plain vanilla 7-1 ruling remanding the case to the Fifth Circuit to apply strict scrutiny, why did it take nine months to issue the opinion?
Supreme Court Grants Review in Recess Appointments Case
To no one’s great surprise, the Court agreed to take the NLRB v. Noel Canning recess appointments case. As I predicted, the Court added a third question, in addition to the inter/intrasession question and the happens to arise/happens to exist question: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every […]
Standing Against E15
Among the petitions for certiorari listed for today’s Supreme Court conference are three (1, 2, 3) challenging a misguided standing ruling by the U.S. Court of Appeals for the D.C. Circuit. In Grocery Manufacturers Association v. EPA a divided panel of the D.C. Circuit held that a range of trade associations challenging the Environmental Protection […]
Goldstein on the Court’s “Power”
This morning, SCOTUSBlog’s Tom Goldstein has an essay on the Supreme Court’s power of judicial review. It begins: You should decide now what kind of Supreme Court you want. Don’t wait until after the Justices hand down the Term’s major decisions. That will be too late. Make a real choice now about how much power […]
Reading the Tea Leaves on the Supreme Court’s Outstanding Cases
With today’s decisions, there are three opinions left from the Supreme Court’s March argument sitting: Hollingsworth v. Perry (the Prop 8 case); United States v. Windsor (the DOMA case); and Mutual Pharmaceutical v. Bartlett (this Term’s pharma preemption case). There are three Justices who haven’t yet had opinion assignments from that sitting: the Chief Justice, […]