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Protecting free exercise under Smith and after Smith

This article is part of a symposium on the court’s decision in Fulton v. City of Philadelphia. Thomas C. Berg is the James L. Oberstar professor of law and public policy at the University of St. Thomas (Minnesota). Douglas Laycock is the Robert E. Scott distinguished professor of law at the University of Virginia.  Fulton v. Philadelphia is an important win for religious liberty. Philadelphia may not terminate its foster-care services contract with Catholic Social Services on the ground that CS...
Tags: Featured, Law, Congress, Css, United States, Philadelphia, Smith, Boy Scouts Of America, Gillette, Fulton, Dale, Barrett, Clarence Thomas, Samuel Alito, Kavanaugh, Catholic Social Services


From the court, a vindication of faith-based service. From Alito, a blueprint for the future.

This article is part of a symposium on the court’s decision in Fulton v. City of Philadelphia. Andrea Picciotti-Bayer is the director of the Conscience Project and previously was the legal adviser to the Catholic Association. Anti-Catholic bigotry is not a thing of the past. When the city of Philadelphia severed ties with Catholic Social Services, a church-run foster-care program, it was the equivalent of hanging a “Catholics Need Not Apply” sign outside of its Department of Human Services. Cit...
Tags: Featured, Supreme Court, Law, America, Css, United States, New York Times, Catholic Church, Philadelphia, Catholic, Biden, Smith, John Roberts, Fulton, American Civil Liberties Union, Hill


Court again leaves Affordable Care Act in place

This article was updated on June 17 at 5:16 p.m. In a much-anticipated decision, the Supreme Court on Thursday rejected another effort to dismantle the Affordable Care Act, the health care reform law often regarded as the signature legislative achievement of former President Barack Obama. The justices did not reach the main issue in the case: whether the entirety of the ACA was rendered unconstitutional when Congress eliminated the penalty for failing to obtain health insurance. Instead, by a v...
Tags: Texas, Featured, Supreme Court, Law, Congress, California, Court, Barack Obama, House Of Representatives, Biden, Ruth Bader Ginsburg, ACA, Medicaid, King, Irs, Trump


Justices request government’s views on Harvard affirmative-action dispute

The Supreme Court on Monday asked the federal government to weigh in on whether the justices should once again wade into the battle over affirmative action. In an order list issued from last week’s private conference, the court asked Acting Solicitor General Elizabeth Prelogar to file a brief expressing the government’s views on a challenge to Harvard’s race-conscious admissions policy. Even if the justices ultimately decide to grant review in Students for Fair Admissions v. President and Fello...
Tags: Texas, Featured, Supreme Court, Law, Harvard, Harvard University, Kennedy, University Of Michigan, University Of North Carolina, Sonia Sotomayor, Antonin Scalia, Lyle Denniston, Scalia, Fisher, University of Texas, Howe


Justices united against “magic words” and judge-made rules on asylum seekers’ credibility

Last week in Garland v. Dai and Garland v. Alcaraz-Enriquez, the Supreme Court held that reviewing courts cannot treat an asylum seeker’s testimony as credible unless the agency first finds the applicant credible. The unanimous opinion, penned by Justice Neil Gorsuch, rejected the contrary approach of the U.S. Court of Appeals for the 9th Circuit. In argument and briefing, the government contended that the 9th Circuit rule — which took asylum seekers’ testimony as credible when faced with agenc...
Tags: Supreme Court, Law, Congress, Bia, Chevron, 9th Circuit, U S Court of Appeals, Ninth Circuit, Garland, Dai, INA, Gorsuch, Board of Immigration Appeals, Merits Cases, Neil Gorsuch, Chenery


Court limits definition of “violent felony” in federal gun-possession penalty

A fractured Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that crimes involving recklessness do not count as “violent felonies” for the purpose of triggering a key sentencing enhancement. Justice Elena Kagan announced the judgment of the court and wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. That means that fi...
Tags: Featured, Supreme Court, Law, Congress, Court, United States, Tennessee, Johnson, Thomas, Borden, U S Court of Appeals, Elena Kagan, Kagan, Clarence Thomas, Kavanaugh, United States the Supreme Court


Diverse six-justice majority rejects broad reading of computer-fraud law

The Supreme Court’s decision on Thursday in Van Buren v. United States provides the court’s first serious look at one of the most important criminal statutes involving computer-related crime, the federal Computer Fraud and Abuse Act. Justice Amy Coney Barrett’s opinion for a majority 0f six firmly rejected the broad reading of that statute that the Department of Justice has pressed in recent years. Among other things, the CFAA criminalizes conduct that “exceeds authorized access” of a compute...
Tags: Featured, Supreme Court, Law, Georgia, United States, Department Of Justice, John Roberts, The Supreme Court, Van Buren, Barrett, Elena Kagan, Clarence Thomas, Samuel Alito, CFAA, Merits Cases, Brett Kavanaugh


Gorsuch turns down Colorado churches’ request to block COVID restrictions

In the latest battle over restrictions imposed during the COVID-19 pandemic, Justice Neil Gorsuch rejected a request from two Denver-area churches to block the enforcement of Colorado’s disaster law. Denver Bible Church and Community Baptist Church had sought broad relief, asking the court not only to halt any COVID-19 restrictions based on the law that would interfere with the churches’ ability to exercise their religion but also urging the justices to overrule a century-old decision upholding...
Tags: Featured, Supreme Court, Law, Colorado, California, Denver, Howe, Polis, Tandon, Newsom, Gorsuch, Neil Gorsuch, U S Court of Appeals for the 10th Circuit, Emergency appeals and applications, Denver Bible Church and Community Baptist Church, Denver Bible Church


Justices unanimously rule against asylum seekers on question of credibility

The Supreme Court on Tuesday sided with the federal government in a dispute over when federal courts can treat asylum seekers’ testimony as credible. In a unanimous opinion in the consolidated cases of Garland v. Dai and Garland v. Alcaraz-Enriquez, the court rejected the approach of the U.S. Court of Appeals for the 9th Circuit, which had previously taken asylum seekers’ testimony as credible when reviewing cases where immigration courts were silent on applicants’ credibility. Justice Neil Gor...
Tags: Featured, Supreme Court, Law, Congress, Mexico, China, United States, 9th Circuit, Ninth Circuit, Garland, Dai, INA, Gorsuch, Board of Immigration Appeals, Merits Cases, Neil Gorsuch


Court puts relief for Oklahoma inmate on hold amid uncertainty about scope of McGirt

The Supreme Court on Wednesday granted a request by Oklahoma to allow the state to retain custody of a death-row inmate while the court considers whether to clarify the implications of last year’s decision holding that Oklahoma lacks jurisdiction over certain crimes committed on land reserved for Native Americans. The inmate, Shaun Bosse, was convicted and sentenced to death for the 2010 murders of Katrina Griffin and her two young children. He now claims that his conviction is invalid under Mc...
Tags: Featured, Supreme Court, Law, United States, Oklahoma, Ruth Bader Ginsburg, Griffin, State, Creek Nation, Howe, Elena Kagan, Chickasaw Nation, Oklahoma Court of Criminal Appeals, Bosse, Neil Gorsuch, Elizabeth Prelogar


Refreshing unanimity in court’s interpretation of Superfund law

Just four weeks after hearing oral argument, the Supreme Court on Monday issued a refreshingly clear, unanimous decision in Guam v. United States. In an opinion by Justice Clarence Thomas, the court held that Guam could seek contribution from the U.S. Navy for the cost of cleaning up the Ordot Dump, a site on the island that the Navy created and used for decades. The case involved interpretation of the federal Superfund law, the Comprehensive Environmental Response, Compensation and Liability...
Tags: Featured, Supreme Court, Law, Congress, Navy, United States, Epa, District Of Columbia, Environmental Protection Agency, Thomas, John Roberts, U S Navy, D C Circuit, Clarence Thomas, Guam, Samuel Alito


Court dismisses abortion “gag rule” cases, adds arbitration and habeas cases to docket

The Supreme Court’s announcement that it would take up a challenge to Mississippi’s ban on abortions after the 15th week of pregnancy (covered in a separate article here) dominated coverage of Monday’s orders. But in the same set of orders, the justices also dismissed a trio of cases – American Medical Association v. Becerra, Oregon v. Becerra and Becerra v. Mayor and City Council of Baltimore – that raised issues relating to abortion – specifically, a regulation issued by the Trump administrat...
Tags: Texas, Featured, Mississippi, Maryland, Supreme Court, Law, Arizona, Louisiana, Biden, Trump, Sonia Sotomayor, HARRIS, American Medical Association, The Supreme Court, Howe, Ramirez


Court revives federal appeal for oil and gas companies in climate-change case

The Supreme Court on Monday gave a major boost to a group of oil and gas companies that are seeking to stay out of state court and defend a lawsuit against them in federal court instead. By a vote of 7-1 (with Justice Samuel Alito not participating), the justices agreed with the companies – which include BP, Chevron and Exxon Mobil – that a federal appeals court had the power to review an entire order sending the case back to state court, rather than only one of the grounds on which the compani...
Tags: Featured, Maryland, Supreme Court, Law, Congress, Exxon Mobil, Baltimore, Chevron, Sonia Sotomayor, The Supreme Court, BP Plc, Howe, Alito, U S Court of Appeals, Samuel Alito, 4th Circuit


Justices divided on retroactive application of jury-unanimity rule

The Supreme Court on Monday ruled by a vote of 6-3 that inmates whose convictions became final before last year’s decision in Ramos v. Louisiana, holding that the Constitution’s Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, cannot take advantage of it on federal collateral review. The geographical impact of Monday’s decision is limited to Louisiana and Oregon – the only two states that have allowed non-unanimous jury verdicts in recent ye...
Tags: Featured, Mississippi, Supreme Court, Law, Oregon, Louisiana, Roe V Wade, Edwards, Howe, Stephen Breyer, Elena Kagan, Kagan, Ramos, Kavanaugh, Apodaca, Vannoy


On a new, conservative court, Kavanaugh sits at the center

This article is the first in a series on interim statistics from the 2020-21 Supreme Court term. The Supreme Court has issued opinions in roughly half of the cases it will decide this term, and so far Justice Brett Kavanaugh has emerged as the new “median justice” on a solidly conservative court. If the trend holds, Kavanaugh will supplant Chief Justice John Roberts, who occupied the court’s ideological center before the rightward shift caused by the death of Justice Ruth Bader Ginsburg and her...
Tags: Featured, Supreme Court, Law, Republican, Donald Trump, Ruth Bader Ginsburg, Trump, Thomas, Democratic, Sonia Sotomayor, John Roberts, The Supreme Court, Roberts, Ginsburg, Barrett, Sotomayor


The morning read for Monday, May 3

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected] Here’s the Monday morning read: Student Speech Case Falling Flat at Court? (Kenneth Jost, Jost on Justice) Petty Sticklerism That Fortuitously Benefits An Undocumented Immigrant is Still Petty Sticklerism (Michael Dorf, Dorf on Law) Supreme Court’s Ethics Problems Are Bigger Than Coney Barrett (Tim...
Tags: Supreme Court, Law, Round-up, Steve Vladeck, Neil Gorsuch, Kenneth Jost Jost, Coney Barrett Timothy O Brien Bloomberg, Supreme Court Mario Nicolais


Unusual alliance of justices holds government to strict notice requirement in removal proceedings

On Thursday, the Supreme Court issued a 6-3 decision in Niz-Chavez v. Garland, opting for a strict reading of an immigration statute that turns on whether the government has provided proper notice to a noncitizen to appear for removal proceedings. By holding the government to the plain language of the statute, and by refusing to accommodate immigration agencies’ desire for flexibility, the majority handed a win to noncitizens and their advocates, who have long criticized the government’s piecem...
Tags: Featured, Supreme Court, Law, Congress, United States, Biden, John Roberts, NTA, Pereira, U S Court of Appeals, Garland, Elena Kagan, Clarence Thomas, Samuel Alito, Kavanaugh, INA


Justices contemplate the interplay of eminent domain and sovereign immunity

The Supreme Court on Wednesday heard argument in PennEast Pipeline Co. v. New Jersey. The case presents two questions : (1) whether sovereign immunity prevents PennEast from instituting eminent domain proceedings in federal court to condemn properties in which New Jersey has interests, and (2) whether the U.S. Court of Appeals for the 3rd Circuit had jurisdiction over those proceedings. The dispute arose when PennEast obtained under the Natural Gas Act a certificate of public convenience and ne...
Tags: Featured, Supreme Court, Law, Congress, Pennsylvania, United States, New Jersey, John Roberts, Roberts, FERC, Federal Energy Regulatory Commission, Stephen Breyer, Breyer, Elena Kagan, Clement, U S Court of Appeals for the 3rd Circuit


Justices and litigants spar over whether renewable-fuel law creates a “funnel” or a “safety valve”

The Supreme Court heard oral argument Tuesday in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, which considers whether small refiners can take advantage of a compliance exemption in the Renewable Fuel Standard program if they have not received that exemption continuously. (The full statutory scheme is elaborated here.) The petitioners are three small refineries who argue that the word “extension” in the statute’s exemption language provides a metaphorical safety valve for...
Tags: Featured, Supreme Court, Law, Congress, Senate, Epa, Environmental Protection Agency, Chevron, Thomas, Morrison, John Roberts, Roberts, Alito, Renewable Fuels Association, Stephen Breyer, Breyer


Court rules against government on technical question of notice requirement in immigration law

The Supreme Court on Thursday issued a 6-3 opinion in Niz-Chavez v. Garland, reversing a lower court’s decision that had limited access to “cancellation of removal,” an important form of relief for noncitizens in deportation proceedings. Justice Neil Gorsuch wrote the majority opinion, adopting a rigid interpretation of a federal statute that requires the government to serve a “notice to appear” in order to trigger the “stop-time” rule. That rule can foreclose access to immigration relief by pr...
Tags: Featured, Supreme Court, Law, John Roberts, Garland, Elena Kagan, Clarence Thomas, Samuel Alito, Gorsuch, Merits Cases, Brett Kavanaugh, Neil Gorsuch, Amy Coney Barrett, Stephen Breyer Sonia Sotomayor, Niz Chavez


Court wrestles with Superfund contribution puzzle

Monday’s argument in Guam v. United States featured sharply different interpretations of the contribution provisions of the Comprehensive Environmental Response, Compensation and Liability Act, also known as CERCLA or the Superfund statute. Guam is appealing a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that the territory is time-barred from seeking contribution from the U.S. Navy for the cost of cleaning up the Ordot Dump. The Navy created the dump during the 1940s...
Tags: Featured, Law, Navy, Massachusetts, United States, Wyoming, Epa, CWA, Environmental Protection Agency, Sonia Sotomayor, U S Navy, Sotomayor, Stephen Breyer, Clarence Thomas, Guam, Samuel Alito


Justices weigh available defenses to criminal re-entry for certain immigrants

The court heard argument on Tuesday in United States v. Palomar-Santiago, a case involving certain noncitizens’ ability to defend themselves from federal charges for re-entering the country after they were deported. The charge of criminal re-entry requires the prior existence of a removal order entered by a federal immigration agency. In Refugio Palomar-Santiago’s case, that prior removal order did exist. However, the Supreme Court’s 2004 decision in Leocal v. Ashcroft, decided after the entry ...
Tags: Featured, Supreme Court, Law, Congress, United States, Ross, Thomas, Sonia Sotomayor, Garcia, John Roberts, Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Justices doubtful on California donor-disclosure requirement

The Supreme Court on Monday seemed poised to side with two conservative groups challenging the constitutionality of California’s requirement that charities and nonprofits operating in the state provide the state attorney general’s office with the names and addresses of their largest donors. The requirement, the state insists, helps it to police charitable fraud. But two nonprofits argue that the rule violates the First Amendment by discouraging their donors from making contributions. After near...
Tags: Featured, Supreme Court, Law, California, Alabama, Irs, Charles Koch, Sonia Sotomayor, John Roberts, American Civil Liberties Union, Feinberg, Roberts, Howe, Alito, Shaffer, Barrett


Doctrinal “dinosaur” or stare decisis? Justices wrestle with patent-law precedent.

The justices explored possible ways to limit the doctrine of patent assignor estoppel during oral argument in Minerva Surgical Inc. v. Hologic Inc. on Wednesday. The doctrine works like this. An inventor files a patent application on an invention and assigns the patent rights to an assignee — perhaps in exchange for money from the assignee, or perhaps as part of a contract with the inventor’s employer. After a patent issues, the assignee contends that the inventor has infringed the patent. In t...
Tags: Featured, Supreme Court, Law, Wolf, John Roberts, Minerva, Stephen Breyer, Elena Kagan, Clarence Thomas, Hologic Inc, Ratner, Hologic, Hochman, Merits Cases, Neil Gorsuch, Robert Hochman


Skepticism and the shadow of Chevron in Sanchez v. Mayorkas argument

The humanitarian stakes were indiscernible in Monday morning’s oral argument in Sanchez v. Mayorkas, which examined whether noncitizens who have been granted Temporary Protected Status are eligible for the statutory procedure known as “adjustment of status” in order to become lawful permanent residents. Only Justice Brett Kavanaugh alluded to the 400,000 individuals granted TPS, most of whom have been living and working in the United States for decades, whose prospects of permanent residence wo...
Tags: Supreme Court, Law, Congress, United States, El Salvador, Biden, Chevron, Thomas, Sonia Sotomayor, John Roberts, Roberts, Sánchez, Alito, Gonzalez, Barrett, U S Court of Appeals


Justices mull textualism and Alaskan exceptionalism in classifying Alaska Native corporations

With over $500 million of COVID-19 relief funding at stake, the Supreme Court began its week by grappling with whether the CARES Act’s definition of “Indian tribe” — a definition included in over 150 other federal laws — encompasses Alaska Native corporations. During nearly two hours of oral argument in Yellen v. Confederated Tribes of the Chehalis Reservation, the justices expressed doubts about the textual arguments advanced by both sides even as they seemed wary of the consequences of a ruli...
Tags: Featured, Supreme Court, Law, Congress, United States, Alaska, Paul Clement, Yellen, Thomas, Sonia Sotomayor, John Roberts, Roberts, Treasury Department, Alito, Barrett, Sotomayor


Tandon steals Fulton’s thunder: The most important free exercise decision since 1990

On Feb. 24, 2020, the Supreme Court granted certiorari in Fulton v. City of Philadelphia, a case in which the petitioners and several amici are asking the Court to either (1) overrule Employment Division v. Smith, a 1990 decision holding that the free exercise clause does not provide a right to religious exemptions from general laws, or (2) sharply limit the impact of Smith by interpreting it as guaranteeing a “most favored nation” status for religious exemption claims. Under the latter theory,...
Tags: Featured, Supreme Court, Law, Congress, California, Philadelphia, Smith, Flores, State, Sonia Sotomayor, John Roberts, Fulton, Hialeah, Stephen Breyer, Elena Kagan, Kagan


Court to take up case on “harmless error” standard in habeas proceedings

The Supreme Court on Monday announced that it would add the case of a Michigan inmate convicted of premeditated murder to its docket for next term. The justices granted Brown v. Davenport, a petition filed by the state of Michigan on the standard for whether a constitutional error is “harmless” when a defendant is seeking federal post-conviction relief. The inmate, Ervine Davenport, was convicted after a trial at which he was shackled. State courts in Michigan agreed that shackling Davenport vi...
Tags: New York, Featured, Supreme Court, Law, Court, New Jersey, Michigan, District Of Columbia, Brown, Murphy, McDonald, Dobbs, Davenport, Howe, U S Court of Appeals, City of Chicago


Litigation over clergy halts Alabama execution (and divides Justices in notable ways)

Though the federal government carried out the first three execution of 2021 last month, the first state execution in the US was scheduled to take place last night in Alabama.  But, as this local article explains, today "Willie B. Smith III remains alive on death row in Alabama, after the U.S. Supreme Court upheld a ruling that required Smith’s spiritual advisor to be in the execution chamber with Smith when he was given the lethal injection."  Here is more: The ruling came down around 11:08 p.m...
Tags: Texas, Supreme Court, Law, US, Alabama, Npr, Christian, Birmingham, Smith, Sonia Sotomayor, Buddhist, U S Supreme Court, John Roberts, Alabama Department of Corrections, Alito, Barrett


"A splintered Supreme Court on late Friday night partly lifted restrictions on religious services in California that had been prompted by the coronavirus pandemic...."

"With the pandemic raging, in-person worship services were entirely barred in Tier 1, which covers almost all of the state. In a brief, unsigned opinion, the court blocked that total ban but left in place a 25 percent capacity restriction and a prohibition on singing and chanting. Justices Clarence Thomas and Neil M. Gorsuch said they would have blocked all of the restrictions. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan dissented, saying they would have left all of the restrict...
Tags: Hollywood, Supreme Court, Law, California, Nevada, State, Elena Kagan, Kagan, Clarence Thomas, Neil M Gorsuch, Samuel A Alito Jr, John G Roberts Jr, Gorsuch, Religion And Government, Ann Althouse, Brett M Kavanaugh



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