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Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act

This article is part of a symposium on the court’s decision in Brnovich v. Democratic National Committee. David H. Gans is the director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. The Roberts court continues to issue rulings that harm our democracy. On Thursday, it once again struck a savage blow to our nation’s best frontline defense against racial voter suppression.  The Voting Rights Act — the crown jewel of the civil rights movement t...
Tags: John Lewis, Featured, Supreme Court, Law, Congress, United States, States, Roberts, Alito, Democratic National Committee, Shelby County, Holder, Elena Kagan, Samuel Alito, Human Rights Civil Rights Citizenship Program, Brnovich


In Barrett’s first term, conservative majority is dominant but divided

At the conclusion of Justice Amy Coney Barrett’s first term, the Supreme Court’s six-justice conservative majority is grappling with its newfound control. A split developing among its members is complicating the conservative revolution some predicted after Barrett’s confirmation last October. But with no anticipation of a Republican-appointed justice retiring anytime soon, and a blockbuster docket next term featuring clashes over abortion and gun rights, the contours of the court’s rightward sh...
Tags: New York, Featured, Mississippi, Supreme Court, Law, California, Joe Biden, Harvard, Philadelphia, Smith, Ruth Bader Ginsburg, Thomas, Democratic, Sonia Sotomayor, John Roberts, Roberts


Divided court invalidates California donor-disclosure rules

This article was updated on July 1 at 6 p.m. The Supreme Court on Thursday struck down 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 6-3 ruling in Americans for Prosperity Foundation v. Bonta was a major victory for the two nonprofit challengers, which had argued that the rule violates the First Amendment by deterring their donors from making contributions. In a ...
Tags: Featured, Supreme Court, Law, California, Irs, Charles Koch, Sonia Sotomayor, John Roberts, 9th Circuit, Roberts, Howe, U S Court of Appeals, Sotomayor, Stephen Breyer, Clarence Thomas, Samuel Alito


Is sovereign immunity out of gas in pipeline condemnation case?

The Supreme Court held 5-4 in PennEast Pipeline Co. v. New Jersey that sovereign immunity does not shield New Jersey from condemnation proceedings instituted by a private company in federal court to obtain properties for a pipeline. Chief Justice John Roberts wrote the majority opinion, joined by Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor and Brett Kavanaugh. Justice Amy Coney Barrett dissented and was joined by Justices Clarence Thomas, Elena Kagan and Neil Gorsuch. Gorsuch also se...
Tags: Florida, Featured, Supreme Court, Law, Congress, Court, Pennsylvania, United States, New Jersey, States, John Roberts, Roberts, FERC, Barrett, U S Court of Appeals, Federal Energy Regulatory Commission


Divided court says New Jersey can’t stop natural-gas pipeline

A pipeline developer may use the federal government’s power of eminent domain to seize property controlled by New Jersey so that it can build a natural-gas pipeline through the state, the Supreme Court ruled Tuesday in a 5-4 vote. The case, PennEast Pipeline Co. v. New Jersey, involved a planned 116-mile pipeline that would bring natural gas from northeast Pennsylvania to western New Jersey. The developer received a permit from the Federal Energy Regulatory Commission, and it argued that, under...
Tags: Featured, Supreme Court, Law, Pennsylvania, New Jersey, John Roberts, Roberts, Federal Energy Regulatory Commission, Elena Kagan, Merits Cases, Brett Kavanaugh, Neil Gorsuch, Thomas Gorsuch, PennEast Pipeline Co, Stephen Breyer Samuel Alito Sonia Sotomayor, Clarence Thomas Justice Amy Coney Barrett


Assignor Estoppel Persists — But Only for Claims Specifically Assigned

Minerva Surgical Inc. v. Hologic Inc. (Supreme Court 2021) In my property law course, I spend a good bit of time walking through post-conveyance rights and obligations. What warranties are are promised to the buyer?  Do these need to be express or may they be implied? Can you disclaim the warranties by selling via quitclaim deed or “as is”? Are warranties different in for sale than for a gift? etc.  My class focuses on land and, to a lesser extent, personal property. Minerva asks the same questi...
Tags: Supreme Court, Law, Court, Houston, Patent, Roberts, Alito, Barrett, Minerva, Kagan, Kavanaugh, Federal Circuit, Gorsuch, Lemley Rethinking Assignor Estoppel, Breyer Sotomayor, Justices Thomas


Justices craft their own remedy for violation of Constitution’s appointments clause

On Monday, the justices ruled 5-4 that the “unreviewable authority” of administrative patent judges meant those APJs were appointed in violation of the Constitution’s appointments clause. The justices then ruled 7-2 that the remedy was one of the court’s own making — that the director of the U.S. Patent and Trademark Office now has the discretion to review those APJ decisions. Both rulings occurred in United States v. Arthrex, Inc. A decade ago, Congress enacted a patent-reform bill, the Leah...
Tags: Supreme Court, Law, Congress, Senate, Court, United States, AIA, Presidential, Thomas, Sonia Sotomayor, John Roberts, Roberts, PTO, Barrett, Edmond, U S Patent and Trademark Office


First person taken of Ohio death row based on new statute precluding capital punishment for those with "serious mentally illness"

In this post back in January, I reported on the new Ohio statute precluding the death penalty for those with "serious mentally illness."  Today I can report, with the help of this local article, that this law has now moved one person off Ohio's death row: "A Columbus man sentenced to death in 1999 for the murder of his ex-girlfriend and her father has become the first inmate in Ohio removed from death row under a new state law that bans the execution of the seriously mentally ill."  Here are mor...
Tags: Law, Virginia, House, Ohio, Columbus, Death Penalty Information Center, Gary, East Side, Dunham, Roberts, state Senate, Franklin County, Ohio Supreme Court, Mike DeWine, Grubb, Steve Brown


Court declines to endorse warrantless entries in all “hot pursuits” for misdemeanors

The Supreme Court ruled on Wednesday that when police are pursuing someone for a misdemeanor, that pursuit does not automatically create the kind of emergency that allows the officer to follow the suspect into a home without a warrant. The court acknowledged that many cases will involve such emergencies – but that determination, Justice Elena Kagan stressed in her opinion for the court, will depend on the facts of each case. The decision came in the case of Arthur Lange, a California man conv...
Tags: Featured, Supreme Court, Law, California, Sonoma, Lange, John Roberts, Roberts, Howe, Elena Kagan, Kagan, Samuel Alito, Merits Cases, Weikert, Arthur Lange, Aaron Weikert


Court holds that regulation guaranteeing union access to employees is unconstitutional

The Supreme Court on Wednesday ruled that a California regulation that permits union organizers to enter the property of agricultural businesses to talk with employees about supporting a union is unconstitutional. By a vote of 6-3, the court agreed with the two businesses challenging the regulation that the rule violates the Fifth Amendment, which bars the government from taking private property without compensation. The ruling was a major victory for property-rights advocates and a setback for...
Tags: Featured, Supreme Court, Law, California, Court, Fresno, Sonia Sotomayor, John Roberts, Roberts, Howe, Fowler, Stephen Breyer, Breyer, Elena Kagan, Fowler Packing Co, Cedar Point


"Supreme Court Rules Against... a unique state regulation allowing labor representatives to meet with farm workers at their workplaces for up to three hours a day for as many as 120 days a year."

"Chief Justice John G. Roberts Jr., writing for the majority, said that 'the access regulation grants labor organizations a right to invade the growers’ property.' That meant, he wrote, that it was a taking of private property without just compensation. The decision did away with a major achievement of the farmworkers’ movement led by Cesar Chavez in the 1970s, which had argued that allowing organizers to enter workplaces was the only practical way to give farmworkers, who can be nomadic and po...
Tags: Supreme Court, Law, Labor, Property, John Roberts, Roberts, Adam Liptak, Cesar Chavez, John G Roberts Jr, Hassid, Ann Althouse, Cedar Point Nursery


Determining Judicial Ethical Conduct: Not So Straightforward? Part I

INTRODUCTION Time was the community or advocacy activity of lawyers with judicial aspirations centred around fundraising and other activities related to participation in our major political parties. Eventually, some of these lawyers found themselves rewarded with a judicial appointment. They cut their ties, as far as anyone knew, with their favoured party. It was not difficult to end their pre-judicial activity and remove themselves from community involvement. More recently, however, with the ne...
Tags: Facebook, Law, Toronto, Canada, Coalition, Tetley, Ethics Committee, Black, Ontario, Parliament Hill, Board, Trudeau, Roberts, Governance Committee, Queen s University, McLeod


Court requires religious exemption but leaves many questions unanswered

This article is the final entry in a symposium on the court’s decision in Fulton v. City of Philadelphia. Holly Hollman is general counsel and associate executive director of Baptist Joint Committee for Religious Liberty. In Fulton v. City of Philadelphia, the court came to a surprisingly unanimous result: Philadelphia violated Catholic Social Services’ free exercise rights by denying it a contract based on the agency’s refusal to comply with the city’s nondiscrimination policy. How did the cou...
Tags: Featured, Law, Colorado, Css, Philadelphia, Masterpiece, Smith, Department of Human Services, John Roberts, Fulton, Roberts, Catholic Social Services, Employment Division, Baptist Joint Committee for Religious Liberty, Neil Gorsuch, Amy Coney Barrett


Justices scale back “unreviewable authority” of administrative patent judges

The Supreme Court ruled Monday that more than 200 administrative patent judges in the U.S. Patent and Trademark Office must be subject to greater supervision by the agency director in order to comply with the Constitution’s appointments clause. The decision in United States v. Arthrex, Inc. was fragmented. The court ruled 5-4 that the level of authority exercised by the patent judges is incompatible with the Constitution because the patent judges are not nominated by the president and confirmed...
Tags: Featured, Supreme Court, Law, Congress, Senate, United States, Commerce, Uspto, Sonia Sotomayor, John Roberts, Roberts, Barrett, U S Patent and Trademark Office, Stephen Breyer, Elena Kagan, Clarence Thomas


Court holds that city’s refusal to make referrals to faith-based agency violates Constitution

This article was updated on June 17 at 6:52 p.m. In a clash between religious freedom and public policies that protect LGBTQ people, the Supreme Court ruled Thursday that Philadelphia violated the First Amendment’s free exercise clause when the city stopped working with a Catholic organization that refused to certify same-sex couples as potential foster parents. The ruling was a victory for Catholic Social Services, an organization associated with the Archdiocese of Philadelphia, and two foster...
Tags: Featured, Supreme Court, Law, Css, Philadelphia, Catholic, Smith, Thomas, Department of Human Services, John Roberts, Roberts, Howe, Alito, Barrett, Breyer, Samuel Alito


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


Less travel, plenty of royalties for justices in 2020

The effects of the COVID-19 pandemic were reflected in an unusual source: the justices’ 2020 financial disclosures, which the Administrative Office of the U.S. Courts released (and Fix the Court posted online) on Friday. Unlike in previous years, the justices mostly stayed close to home, with only two justices reporting reimbursements for trips after the pandemic hit in mid-March. The financial disclosures, which are released every year around this time, are relatively opaque. For example, they...
Tags: Florida, New York, Featured, Supreme Court, Law, Colorado, Washington, New York City, Court, Indiana, University of Florida, Peter Pan, Princeton University Press, Penguin Random House, Caribbean, George Washington University


Supreme Court’s spokesperson to step down after 38 years

The Supreme Court announced on Wednesday that Kathleen Arberg, the court’s longtime spokesperson, will retire on July 3. Arberg has spent 40 years working for the federal judiciary, with 38 of those years at the Supreme Court and 22 as the head of the court’s Public Information Office. Arberg came to the court in 1982 as an assistant public information officer and served in that role until 1999, when she became the public information officer, responsible not only for serving as the court’s spok...
Tags: Featured, Supreme Court, Law, Court, Ruth Bader Ginsburg, Antonin Scalia, John Roberts, Kathy, Roberts, Howe, Anthony Kennedy, Arberg, What's Happening Now, Kathleen Arberg, Court The post Supreme Court, COVID


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


Justices voice skepticism about retroactive sentencing reductions for low-level crack-cocaine offenders

On Tuesday, the Supreme Court heard its last case of the term. The case, Terry v. United States, about sentencing reductions for certain offenses involving crack cocaine, comes just a few months before the petitioner, Tarahrick Terry, is scheduled to be released after serving 13 years in prison. But the court’s eventual decision will likely affect hundreds of similarly situated defendants languishing behind bars. It will resolve a circuit split, determine the scope of a decades-long push to ena...
Tags: Florida, Featured, Supreme Court, Law, Congress, United States, Terry, Bias, Dorsey, Trump, Thomas, Sonia Sotomayor, John Roberts, Roberts, U S Court of Appeals, Sotomayor


Summary Judgment on Pandemic Constructive Dismissal

Over a year ago, the provincial government introduced new emergency leaves for workers sick from COVID-19. This was soon followed by special provisions for termination and severance under the Employment Standards Act, 2000 (ESA), which many people speculated was likely unenforceable and would be deemed constructive dismissal. Justice Broad of the Ontario Superior Court of Justice recently dismissed a motion for summary judgment on April 16, 2021, in , where the defendant unsuccessfully attempte...
Tags: Law, Court, Esa, Avis, Graves, Small Claims Court, Coutinho, Ontario, Roberts, Ontario Court of Appeal, Boland, Dickson, Sanfilippo, Perretta, Brake, Substantive Law: Judicial Decisions


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


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 ponder narrow ruling in student speech case

The Supreme Court on Wednesday appeared conflicted over a school district’s plea to be allowed to discipline students for their speech outside of school. Some justices expressed concern about whether allowing schools to regulate off-campus speech could sweep in too much speech by young people, while others worried that – particularly in the internet era – a contrary rule would give too little weight to the harmful effects that some speech, such as cyberbullying, can have at school even when it ...
Tags: Featured, Supreme Court, Law, Pennsylvania, Levy, Michael Jordan, Thomas, Sonia Sotomayor, Stewart, John Roberts, American Civil Liberties Union, Blatt, Roberts, David Cole, Howe, Alito


Whitehouse alleges “demonstrably false” fact-finding by conservative justices

Sen. Sheldon Whitehouse continued his effort this week to highlight what he views as problematic behavior by the Supreme Court. As chair of the Senate Judiciary Committee’s subcommittee on federal courts, the Democratic senator from Rhode Island alleged in a hearing on Tuesday that Republican-appointed justices on the court violated the general principle against appellate fact-finding in two of the most high-profile and hotly debated rulings issued by the Roberts court: Citizens United v. Feder...
Tags: Featured, Supreme Court, Law, Congress, Senate, Hawaii, Citizens United, Connecticut, Department Of Justice, Smith, Rhode Island, Kennedy, Vra, University Of North Carolina, Senate Judiciary Committee, John Roberts


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


Two new tests of the court’s abortion jurisprudence

This week we highlight cert petitions that ask the Supreme Court to consider the constitutionality of two controversial abortion laws – and, more broadly, to clarify how lower courts analyzing abortion restrictions should apply last year’s fractured decision in June Medical Services v. Russo. These two new petitions join Dobbs v. Jackson Women’s Health Organization (which has been pending before the justices for nearly a year) in asking the court to wade back into the abortion debate. Box v. ...
Tags: Featured, Fcc, Supreme Court, Law, Planned Parenthood, Kentucky, Indiana, Fox, Arkansas, Federal Communications Commission, Circuit, Summers, John Roberts, 9th Circuit, Dobbs, Roberts


A few first thoughts on Jones and juve LWOP

Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices.  Here are some of these first thoughts: 1. I have always seen Montgomery as a somewhat clumsy rewrite and exten...
Tags: Mississippi, Supreme Court, Law, Court, Graham, Jones, Montgomery, Miller, Roberts, Ginsburg, Barrett, Brett Jones, Douglas A Berman, LWOP, Gorsuch Kavanaugh, Mongtomery


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



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