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Symposium: A takedown of the Blaine Amendments

James Hirsen is an attorney, author, commentator and former professor at Trinity Law School. He filed an amicus brief on behalf of the Justice and Freedom Fund, Institute for Faith and Family and North Carolina School Choice in support of the petitioners in Espinoza v. Montana Department of Revenue. The Supreme Court’s decision in Espinoza v. Montana Department of Revenue will shape how the First Amendment’s religion clauses apply to state and local restrictions on how public money is spent. In ...
Tags: Featured, Justice, Supreme Court, Law, Montana, United States, Missouri, House, Catholic, State, John Roberts, Roberts, Alito, Blaine, Montana Department of Revenue, Elena Kagan


Interim Stat Pack for October Term 2019

With the 2019-2020 Supreme Court term coming to a close, the discussion among court-watchers continues to focus on Chief Justice John Roberts’ decision-making. Much has been made of his siding with the more liberal justices in striking down a Louisiana abortion law in June Medical Services LLC v. Russo and upholding the Deferred Action for Childhood Arrivals program (at least temporarily) in Department of Homeland Security v. Regents of the University of California. Roberts’ positions in these c...
Tags: Health, Featured, Supreme Court, Law, Hawaii, Louisiana, Donald Trump, Department Of Homeland Security, Ruth Bader Ginsburg, King, Trump, Thomas, Sonia Sotomayor, John Roberts, Roberts, Ginsburg


Retirement Is For Quitters — See Also

Kathryn Rubino made a Lebowski joke in yesterday's See Also and it's inspired me to keep going with my all Lebowski rundowns from Monday. Strong Men Also Cry, Strong Men Also Cry: Thomas and Alito allegedly considering retirement and prepare to disappoint a lot of Trump officials hoping for another vacancy. Well, Okay, You're Not Privy To All The New Shit: The state bar examiners may not be following the news, but there's an upsurge in COVID cases and they're going to go ahead with July bar ex...
Tags: Law, St Louis, Trump, Thomas, Larry, Alito, Troutman Sanders, Pepper Hamilton, Lebowski, Kathryn Rubino, See Also


Opinion analysis: Court rules that religious schools cannot be excluded from state funding for private schools

In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools. Today the U.S. Supreme ...
Tags: Featured, Supreme Court, Law, Montana, Court, Catholic, Ruth Bader Ginsburg, Thomas, Sonia Sotomayor, U S Supreme Court, John Roberts, Institute for Justice, Stillwater, Roberts, Howe, Ginsburg


Symposium: RIP state “Blaine Amendments” – Espinoza and the “no-aid” principle

Steven Green is the Fred H. Paulus Professor of Law and director of the Center for Religion, Law & Democracy at Willamette University College of Law. He filed an amicus brief on behalf of a number of religious groups in support of the respondents in Espinoza v. Montana Department of Revenue. There is so much contained in the various opinions in Espinoza v. Montana Department of Revenue that a college instructor could use that one case to teach an entire course about American church-state law: di...
Tags: Featured, Supreme Court, Law, Colorado, California, Montana, Senate, Pennsylvania, Ruth Bader Ginsburg, Mitchell, Thomas, U S Supreme Court, The Supreme Court, Alito, William Rehnquist, Locke


Symposium: June Medical and the many faces of judicial discretion

Jane Schacter is the William Nelson Cromwell professor of law at Stanford Law School. She signed an amicus brief in support of the petitioners in June Medical Services v. Russo. The headline from the 5-4 decision in June Medical Services v. Russo striking down Louisiana’s abortion restriction is unquestionably the vote of Chief Justice John Roberts. He determined the outcome. While he may have previewed his position a year ago when he voted to stay the ruling from the U.S. Court of Appeals for t...
Tags: Health, Texas, Featured, Law, Stanford, Louisiana, King, John Roberts, Roberts, Williamson, Lochner, Alito, U S Court of Appeals, Casey, Stephen Breyer, Breyer


Symposium: The chief justice restores the Casey standard even while undermining women’s interests in Louisiana

Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute. Follow her at @erikabachiochi. In comparison to the high court’s bombshell opinion in Bostock v. Clayton County earlier this month, June Medical Services v. Russo would seem relatively straightforward. The challenged admitting privileges requirement for Louisiana abortion providers is virtually the same as the law struck down in Whole Woman’s Health v. Hellerstedt just four year...
Tags: Health, Texas, Featured, Supreme Court, Law, Planned Parenthood, Court, Louisiana, Ruth Bader Ginsburg, Thomas, John Roberts, Richard Posner, Roberts, Alito, Clayton County, Casey


Opinion analysis: With Roberts providing the fifth vote, court strikes down Louisiana abortion law (Updated)

Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues in holding that, although Texas has a genuine interest in protecting the health of pregnant women, there was no evidence that the law actually did anything to promote that interest – but it did make it more difficult for wo...
Tags: Health, Texas, Featured, Supreme Court, Law, Planned Parenthood, New Orleans, Louisiana, Kennedy, Thomas, John Roberts, Roberts, Baton Rouge, District Court, Alito, U S Court of Appeals


SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol

As reported in this AP article, the "Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August."  Here is more: The justices rejected an appeal from four inmates who were convicted of killing children.  Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward. The court's action leaves no obstacles standing in the way of the executions, the first of wh...
Tags: Supreme Court, Law, Scotus, Washington, Indiana, Ap, Arkansas, Iowa, Kansas, Ruth Bader Ginsburg, Justice Department, Nelson, Sonia Sotomayor, Alito, Barr, Danny Lee


Opinion analysis: Court confirms limitations on federal review for asylum seekers

In a 7-2 decision, the Supreme Court in Department of Homeland Security v. Thuraissigiam upheld a scheme of limited and narrow judicial review over expedited removal, a bare-bones administrative process created under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Expedited removal allows an immigration official to make the immediate decision to deport a person without a hearing if the person is apprehended within 100 miles of a border and if they cannot prove they have liv...
Tags: Featured, Guantanamo Bay, Supreme Court, Law, Congress, Court, Afghanistan, United States, Cuba, Ruth Bader Ginsburg, Sri Lanka, Executive Branch, Thomas, Sonia Sotomayor, 9th Circuit, Alito


Interim Stat Pack for October Term 2019

OT 2019 has turned out to be a term of unexpected twists and turns. From coronavirus and an oral argument sitting in May — instead of March and April — with remote arguments for the first time ever, to fewer decided cases than in any term since the 19th century, to Chief Justice John Roberts siding with the court’s liberals in some of the most significant decisions of the term, nothing seems to be going according to common expectations. This interim Stat Pack contains data for all decided and ar...
Tags: Featured, Law, Georgia, Department Of Homeland Security, Ruth Bader Ginsburg, University Of California, Republican National Committee, John Roberts, Roberts, Alito, Democratic National Committee, Samuel Alito, Regents, Kavanaugh, Brett Kavanaugh, Office of the Solicitor General


Opinion analysis: Court rejects Trump administration’s effort to end DACA (Updated)

It has been eight years since the Obama administration created the Deferred Action for Childhood Arrivals program, known as DACA, which allows undocumented young adults who came to the United States as children to apply for protection from deportation. In 2017, the Trump administration announced that it would end the program, which it believed had been illegal in the first place. Today, by a vote of 5-4, the Supreme Court ruled that the administration acted improperly in terminating the program,...
Tags: New York, Featured, Supreme Court, Microsoft, Law, Obama, Congress, California, Mexico, Dhs, United States, Nielsen, District Of Columbia, Donald Trump, Department Of Homeland Security, Duke


Texas Democrats ask justices to allow mail-in voting for all (Updated)

With just over two weeks remaining before the deadline to request mail-in ballots for the upcoming primary runoff election, the Texas Democratic Party and a group of Texas voters have asked the Supreme Court to reinstate a ruling by a federal trial court that would allow all eligible voters in Texas to vote by mail for the 2020 election cycle. Citing concerns that allowing widespread mail-in voting will lead to voter fraud, Texas officials have opposed their effort; a decision by the Supreme Cou...
Tags: Texas, Featured, Supreme Court, Law, Howe, Alito, U S Court of Appeals, Samuel Alito, 5th Circuit, Texas Texas, Fred Biery, Texas Democratic Party, Biery, Texas Democrats, 5th Circuit Alito, Emergency appeals and applications


SCOTUS stays Texas execution based seemingly on clergy claim

As reported in this AP article, the "Supreme Court granted a reprieve Tuesday to a Texas inmate scheduled to die for fatally stabbing an 85-year-old woman more than two decades ago, continuing a more than four-month delay of executions in the nation’s busiest death penalty state during the coronavirus pandemic." Here are the details: The justices blocked Ruben Gutierrez’s execution about an hour before he could have been executed. Gutierrez’s attorneys had argued his religious rights are being ...
Tags: Texas, Supreme Court, Law, Court, Ap, Missouri, Buddhist, Murphy, Gutierrez, District Court, Alito, Patrick Murphy, Texas Department of Criminal Justice, Douglas A Berman, Ruben Gutierrez, Shawn Nolan


Relist Watch: And then there was one

John Elwood reviews Monday’s relist. Whatever the opposite of “status quo watch” is, that is what we have this week. In one remarkable day, the Supreme Court denied review to the 10 relisted firearm cases (over the dissenting opinion of Justice Clarence Thomas, joined by Justice Brett Kavanaugh and, somewhat surprisingly, no one else); the nine relisted qualified immunity cases (over the dissenting opinion of Thomas, who argued that “[b]ecause our [42 U.S.C.] §1983 qualified immunity doctrine ap...
Tags: Texas, Featured, Supreme Court, Law, California, United States, Archer, Kansas, Rogers, Thomas, Alito, Andrus, Clarence Thomas, Henry Schein Inc, Samuel Alito, Texas Court of Criminal Appeals


Tuesday round-up

Yesterday the Supreme Court released one of its most eagerly anticipated decisions of the term, holding in Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that federal employment discrimination law protects gay and transgender employees. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. At Reuters, Lawrence Hurley reports that “[t]he landmark 6-3 ruling represented the biggest m...
Tags: Texas, Justice, Supreme Court, Law, Congress, California, Washington Post, Virginia, Bloomberg, Cnn, United States, New Jersey, Wisconsin, Npr, Usa Today, Donald Trump


Symposium: The triumph of textualism: “Only the written word is the law”

Jonathan Skrmetti is chief deputy attorney general of the state of Tennessee, which filed an amicus brief on behalf of 15 states in support of the employers in Bostock v. Clayton County and Harris Funeral Homes v. EEOC. Justice Elena Kagan famously remarked, eulogizing her friend Justice Antonin Scalia, that “[w]e are all textualists now.”  Bostock v. Clayton County puts to rest any doubt about that sentiment. Although the 6-3 decision prompted vigorous dissents, all nine justices adopt a purely...
Tags: Featured, Supreme Court, Law, Congress, Tennessee, District Of Columbia, Antonin Scalia, Scalia, EEOC, Matthew Shepard, Alito, Clayton County, Elena Kagan, Clarence Thomas, Samuel Alito, Kavanaugh


Gorsuch To Alito ‘I’ll Hit You Up Over Text’ — See Also

Alito Wonders If He May As Well Have Had Garland: Gorsuch authors landmark LGBTQ rights case... but there's probably a catch. A Welcome Sign: Law school determines "not being a racist prick" at least as important as mathlete champion on application. Where To Go?: If you're looking to get out of law school and work in the public sector, here are some ideas. What If We Don't Try To Kill Them?: Washington joins Utah in setting up an emergency diploma privilege regime.
Tags: Utah, Law, Washington, Alito, Gorsuch, See Also, Gorsuch To Alito


Court sends case of Texas death-row inmate back for new look

The justices revived the case of Terence Andrus, a Texas inmate who was sentenced to death for the 2008 shootings of two people during an attempted carjacking in a grocery-store parking lot. The lawyer who was appointed to defend Andrus didn’t meet with him for almost eight months, and then only met with him outside of court six times in roughly four years; the lawyer admits that he did not do any work until just before jury selection began. At the trial, the lawyer did not present any evidence ...
Tags: Texas, Featured, Supreme Court, Law, Washington, Court, Howe, Alito, Strickland, Andrus, Samuel Alito, Texas Court of Criminal Appeals, Cases in the Pipeline, Justices Clarence Thomas, Neil Gorsuch Alito, Capital Cases


Court sends case of Texas death-row inmate back for new look (Corrected)

The justices revived the case of Terence Andrus, a Texas inmate who was sentenced to death for the 2008 shootings of two people during an attempted carjacking in a grocery-store parking lot. The lawyer who was appointed to defend Andrus didn’t meet with him for almost eight months, and then only met with him outside of court six times in roughly four years; the lawyer admits that he did not do any work until just before jury selection began. At the trial, the lawyer did not present any evidence ...
Tags: Texas, Featured, Supreme Court, Law, Washington, Court, Corrections, Howe, Alito, Strickland, Andrus, Samuel Alito, Texas Court of Criminal Appeals, Cases in the Pipeline, Justices Clarence Thomas, Neil Gorsuch Alito


Justice Department announces the scheduling of four new federal execution dates

As detailed in this DOJ press release, titled "Executions Scheduled for Four Federal Inmates Convicted of Murdering Children," new federal executions dates have been set for four murderers.  Here are the details: Attorney General William P. Barr today directed the Federal Bureau of Prisons (BOP) to schedule the executions of four federal death-row inmates who were convicted of murdering children in violation of federal law and who, in two cases, raped the children they murdered.  In...
Tags: Supreme Court, Law, Scotus, Illinois, Doj, Justice Department, Nelson, Lee, U S District Court, Federal Bureau of Prisons BOP, D C Circuit, Alito, U S Court of Appeals, Barr, AG Barr, Eastern District of Arkansas


Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices

Unanimity in the Supreme Court used to be the norm. In the early years of court history there were few dissents, and so there was little opportunity to examine differences between the justices outside of how they authored their majority opinions. This practice has changed over the years, and decisions are more frequently divided rather than unanimous. Certain justices are also more likely to vote alongside, or against, one another. Differences in voting agreements can be somewhat staggering. ...
Tags: Supreme Court, Law, United States, Ruth Bader Ginsburg, Thomas, State, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Alito, William Rehnquist, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Opinion analysis: Federal employment discrimination law protects gay and transgender employees (Updated)

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex.” Today the Supreme Court, by a vote of 6-3, ruled that even if Congress may not have had discrimination based on sexual orientation or transgender status in mind when it enacted the landmark law over a half century ago, Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Because fewer than half of the 50 states currently ban employment discrimination based on gender ident...
Tags: Featured, Supreme Court, Law, Congress, Senate, Lgbt, Court, House Of Representatives, Michigan, John Roberts, Scalia, Stephens, Equal Employment Opportunity Commission, Howe, Donna, Alito


"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

"The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid. Writes Justice Gorsuch, and Chief Justice Roberts is with the majority as well. The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!I'm reading the live blogging a...
Tags: Supreme Court, Law, Congress, Court, Transgender, Homosexuality, Nice, John Roberts, Roberts, Alito, Kavanaugh, Gorsuch, Ann Althouse, SCOTUSblog


By a vote of 6-3, SCOTUS finds deficient performance in Texas capital case and remands on prejudice issue

A dozen years ago, I wrote a full law review article to express my grumpiness about the felt reality that the Supreme Court often seems to care a whole lot more about cases involving persons sentenced to death than about just about any other criminal defendants.  That article is on my mind this morning upon seeing the 19-page per curiam decision that Supreme Court released in Andrus v. Texas, No. 18–9674 (S. Ct. June 15, 2020) (available here).  The defendant in this case, Terence Andrus, killed...
Tags: Texas, Supreme Court, Law, Scotus, Washington, Thomas, Alito, Strickland, CCA, Andrus, Texas Court of Criminal Appeals, Court of Criminal Appeals, Gorsuch, Douglas A Berman, Terence Andrus, Strickland Andrus


Thursday round-up

At CNN, Kaitlan Collins and others report that “US Solicitor General Noel Francisco is expected to resign from his role as the government’s top lawyer before the Supreme Court in the coming days.” For The New York Times, Katie Benner reports that “Mr. Francisco’s top deputy, Jeff Wall, will most likely step in as acting solicitor general as the White House searches for a replacement.” Briefly: Amy Howe reports at Howe on the Court that “this year the justices’ June 25 conference is likely to ...
Tags: Supreme Court, Law, White House, Court, US, Cnn, New York Times, California Supreme Court, Francisco, Puerto Rico, Round-up, Howe, Alito, Daily Journal, Samuel Alito, Amy Howe


Opinion analysis: Justices reaffirm distinction between first and second habeas petitions

One of the most significant changes to federal post-conviction habeas review that Congress adopted in 1996 in the Antiterrorism and Effective Death Penalty Act was the dramatic curtailment of second-or-successive habeas suits by which state and federal prisoners can challenge their confinement. But when a prisoner moves to amend a district court judgment denying his first federal habeas petition, is that still part of the first proceeding, or is that the second bite at the apple that Congress al...
Tags: Texas, Featured, Supreme Court, Law, Congress, Thomas, Crosby, Alito, Gonzalez, U S Court of Appeals, Elena Kagan, Kagan, Clarence Thomas, Samuel Alito, 5th Circuit, Banister


SCOTUS, voting 7-2, limits reach of AEDPA's limit on second habeas petitions in Bannister v. Davis

The Supreme Court handed down a number of opinions this morning, and habeas/criminal procedure fans — or civil procedure fans since habeas actions are technically civil actions — will be excited to see one of the group is Bannister v. Davis, No. 18–6943 (S. Ct. June 1, 2020) (available here).  The opinion in Bannister is a notable procedural win for habeas petitioners, and I am intrigued and a bit surprised the ruling came down 7-2 given how long the opinions took to be issued (the case had been...
Tags: Supreme Court, Law, Court, Davis, Thomas, Bannister, Crosby, Court of Appeals, District Court, Fifth Circuit, Alito, Gonzalez, Kagan, Banister, Douglas A Berman


Opinion analysis: Federal courts can review factual findings of a Convention Against Torture claim raised as a defense to crime-based removal

In a narrow, textualist decision, the Supreme Court today agreed with Nidal Khalid Nasrallah that a federal court of appeals has jurisdiction to review, albeit deferentially, the factual basis of the Board of Immigration Appeals’ denial of his claim that he qualifies for protection under the Convention Against Torture. Nasrallah sought the United States’ protection under CAT, which prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. An immigration judge ...
Tags: Featured, Supreme Court, Law, Congress, United States, Thomas, John Roberts, Alito, U S Court of Appeals, Nasrallah, Clarence Thomas, Samuel Alito, Kavanaugh, INS, 11th Circuit, United Nations Convention Against Torture


Empirical SCOTUS: How the justices and advocates spent their speaking time during the May arguments

Editor’s note: This is the third post in a series analyzing the Supreme Court’s telephonic oral arguments with live audio instituted due to the COVID-19 pandemic. The Supreme Court heard some of the most important cases of the term in a month when there almost were no arguments at all. The court canceled its March and April sittings due to COVID-19. With flexible ingenuity, it then rescheduled 10 arguments for May, which was the first time the court has had anything near a full May sitting since...
Tags: Supreme Court, Law, Pennsylvania, United States, Donald Trump, Ruth Bader Ginsburg, Francisco, Trump, Sonia Sotomayor, John Roberts, Vance, Fisher, Roberts, Alito, Koons, Sotomayor



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