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Fulton quiets Tandon’s thunder: A free exercise puzzle

This article is the first entry in a symposium on the court’s decision in Fulton v. City of Philadelphia. Jim Oleske is a professor of law at Lewis & Clark Law School. His research focuses on the intersection of religious liberty and other constitutional values. Ten weeks ago, acting on an emergency application for injunctive relief in the COVID-19 case of Tandon v. Newsom, the Supreme Court issued an unsigned opinion that appeared to resolve one of the two major free exercise issues previously...
Tags: Featured, Law, Court, Philadelphia, Smith, Rube Goldberg, Trump, Thomas, Fulton, Alito, Barrett, U S Court of Appeals, Stephen Breyer, Clarence Thomas, Tandon, Kavanaugh


Arbitration and the Death of the Common Law

A couple of years ago, in the Before Times, I chaired a panel discussion on the arbitration of family law disputes at a wonderful program hosted by the Legal Education Society of Alberta in Lake Louise. The purposes of the panel were, firstly, to encourage a critical and creative approach to the design of arbitration processes and, secondly, to promote the arbitration of family law disputes in those parts of the province where it has yet to achieve the profile it rightly enjoys in Calgary. The p...
Tags: England, Supreme Court, Law, Wales, Gold, Canada, Calgary, Columbia, Thomas, Gordon, Contino, Supreme Court of Canada, Thomas of Cwmgiedd, Justice Issues, Goertz, Rollie


"The refusal of Philadelphia to contract with CSS for the provision of foster care services unless [Catholic Social Services] agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment."

 The Supreme Court has just ruled in Fulton v. Philadelphia.ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ...
Tags: Supreme Court, Law, Court, Css, Adoption, Philadelphia, Smith, Thomas, Fulton, Adam Liptak, Alito, Barrett, Breyer, Elena Kagan, Kavanaugh, Catholic Social Services


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


Justices scuttle lawsuit against Nestlé, Cargill for allegedly aiding child slavery abroad

This article was updated on June 17 at 7:15 p.m. The Supreme Court on Thursday threw out a lawsuit alleging that two U.S.-based companies, Nestle and Cargill, facilitated human-rights abuses on cocoa plantations in the Ivory Coast. By a vote of 8-1, the justices ruled that the lawsuit cannot go forward because it is based on conduct that occurred overseas. Although the decision was obviously a victory for the two companies, it was not the sweeping one that the business community had sought. The...
Tags: Featured, Supreme Court, Law, Congress, California, United States, Mali, Ivory Coast, Cargill, Nestle, Thomas, John Roberts, 9th Circuit, The Supreme Court, Howe, Alito


The Supreme Court turns away 6 plaintiffs who seek relief after they were used, they say, as child slaves producing cocoa in the Côte d’Ivoire.

The opinion — in Nestlé v. Doe — is written by Justice Thomas, announcing the judgment of the Supreme Court and rejecting "a judicially created cause of action to recover damages from American corporations that allegedly aided and abetted slavery abroad."In Parts I and II of the case, where Thomas has a majority — Roberts, Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett (all but Alito) — he writes: Respondents seek a judicially created cause of action to sue petitioners for aiding and ...
Tags: Supreme Court, Law, United States, Slavery, Chocolate, DOE, Nestle, Thomas, Alito, Barrett, Clarence Thomas, Ann Althouse, Roberts Breyer Sotomayor Kagan Gorsuch Kavanaugh


"Court tosses suit by Republican states challenging Affordable Care Act."

"The justices ruled 7-2 that Texas and 17 other states lacked standing to argue that the individual mandate to purchase health insurance is unconstitutional" — SCOTUSblog reports.  Here's the opinion. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined.Looking at that, I'm most interested in why Justice...
Tags: Texas, Supreme Court, Law, Obamacare, Court, Standing, Thomas, Alito, Breyer, Clarence Thomas, Gorsuch, Ann Althouse, Thomas J, BARRETT JJ, SOTOMAYOR KAGAN KAVANAUGH


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 reject sentencing reductions for some crack-cocaine offenders

The Supreme Court unanimously ruled on Monday that people convicted of certain low-level crack-cocaine offenses are not eligible for sentencing reductions under the First Step Act, a 2018 law that made some criminal-justice reforms retroactive. Justice Clarence Thomas wrote the opinion for the court in Terry v. United States. In 2008, Tarahrick Terry was arrested in Florida for carrying just under 4 grams of crack cocaine. At the time, federal law treated offenses involving crack much more hars...
Tags: Florida, Featured, Supreme Court, Law, Congress, United States, Terry, Thomas, Sonia Sotomayor, Sotomayor, Clarence Thomas, Merits Cases, Fortunately Congress


SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started: In 1986, Congress established mandatory-minimum penalties for coca...
Tags: Supreme Court, Law, Congress, Court, US, Terry, Thomas, Sotomayor, Douglas A Berman


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


Some early coverage of big new SCOTUS ruling limiting ACCA in Borden

A busy day on other matters means I have only had a chance to skim Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), the big win for the defendant today in an ruling limiting the reach of the Armed Career Criminal Act.  I hope in the coming days to have a lot to say about Borden ruling itself and its possible aftermath, but for now I can and will round up some early press and blog coverage: From Bloomberg Law, "Divided High Court Sides With Defense on Repeat-Offender Law" From C...
Tags: Law, US, Bloomberg, Thomas, Borden, Kagan, Kavanaugh, ACCA, Douglas A Berman, Hill Gorsuch Thomas, New York Times Supreme Court Limits Sweep of Law


In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way: The Armed C...
Tags: Law, Congress, Court, US, United States, Arizona, Johnson, Thomas, Scalia, Borden, Kagan, Kavanaugh, ACCA, Gorsuch, Douglas A Berman, Breyer Sotomayor


Do We Even Need the Computer Fraud & Abuse Act (CFAA)?–Van Buren v. US

Last week, the Supreme Court decided Van Buren v. US. Many hoped the decision would clarify how owners can delimit third-party usage of their computer resources for purposes of the Computer Fraud & Abuse Act (CFAA). Disappointingly, the court explicitly punted on that key question, though the decision probably will prompt lower courts to narrow the CFAA’s scope anyway. To me, the case’s real story is how much the CFAA unhelpfully overlaps with other legal doctrines. Rather than tendentious parsi...
Tags: Facebook, Supreme Court, Law, US, Aaron Swartz, Doj, ECPA, Thomas, Van Buren, Barrett, Nosal, CFAA, Licensing/Contracts, DTSA, Trespass to Chattels, Power Ventures


In 6-3 opinion for (police officer) defendant, SCOTUS limits reach of federal Computer Fraud and Abuse Act

The Supreme Court issued one opinion this morning, and it is an interesting criminal law decision with an interesting divide of Justices limiting the reach of a notable federal criminal statute.  The majority opinion in Van Buren v. US, No. 19–783 (S. Ct. June 3, 2021) (available here), is authored by Justice Barrett and it starts and ends this way:   Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer database in exchange for money.  Van Buren’s...
Tags: Supreme Court, Law, US, Trump, Thomas, Van Buren, Alito, Barrett, Eleventh Circuit, CFAA, Douglas A Berman, Tanvir, Tanzin, Nathan Van Buren


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


Unanimous court revives Guam’s Superfund claim against U.S. Navy

The Supreme Court on Monday sided with Guam in its dispute with the federal government over the cleanup costs of toxic waste on the island. Justice Clarence Thomas wrote the opinion for a unanimous court just four weeks after oral argument in the case. The case, Guam v. United States, involves the Territory of Guam’s efforts to require the U.S. Navy to share the cost of cleaning up the Ordot Dump, a Superfund site where the Navy allegedly dumped toxic waste for decades. The federal Superfund st...
Tags: Featured, Supreme Court, Law, Congress, Navy, United States, Environmental Protection Agency, Thomas, U S Navy, Clarence Thomas, Guam, CERCLA, Merits Cases, Territory of Guam, At the Supreme Court Guam


The morning read for Thursday, May 20

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 Thursday morning read: Supreme Court Case Throws Abortion Into 2022 Election Picture (Carl Hulse & Lisa Lerer, The New York Times) Looming decisions on abortion and guns fuel calls from left to add seats to Supreme Court (Seung Min Kim & Marianna Sotomayor, The Washington Post) SUPREME...
Tags: Supreme Court, Law, Round-up, Thomas, Melissa Quinn, Bryan Lammon, Carl Hulse Lisa Lerer, New York Times Looming, Seung Min Kim Marianna Sotomayor, CBS News BP


In unanimous Fourth Amendment ruling, a reminder that there is, in fact, no place like home

On Monday, the Supreme Court released its opinion in Caniglia v. Strom, which unanimously held that a lower court’s extension of Cady v. Dombrowski’s “community caretaking” exception into the home defied the logic and holding of Cady, as well as violated the Fourth Amendment’s warrant requirement. With the court’s unanimity in Caniglia, the home remains the most sacred space under the Fourth Amendment; its sanctity literally houses its privilege. Sans warrant, exigency or consent, governmental ...
Tags: Featured, Supreme Court, Law, Edward, Rhode Island, Thomas, Cranston, John Roberts, Dombrowski, U S Court of Appeals, Clarence Thomas, Samuel Alito, Edward Caniglia, Merits Cases, Cady, Brett Kavanaugh


SCOTUS rules unanimously that "community caretaking" does not create special exception to Fourth Amendment for warrantless home entry

Though I will be thinking a lot about what a split Supreme Court did to Teague doctrine today with its ruling in Edwards v. Vannoy (discussed here), the Court also was notably unanimous this morning in another criminal case, Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021) (available here). The start and close of the short opinion for the Court by Justice Thomas serves as a useful summary: Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm...
Tags: Supreme Court, Law, Court, Collins, Thomas, Edwards, Dombrowski, Alito, Kavanaugh, Teague, Vannoy, Douglas A Berman, Cady, Strom, Caniglia


The morning read for Friday, May 14

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 Friday morning read: Is Brett Kavanaugh Out for Revenge? (McKay Coppins, The Atlantic) Supreme Court Clerk Hiring Watch: Completing The Clerk Class For October Term 2021 (David Lat, Original Jurisdiction) Supreme Court considers plea from parents of man killed in St. Louis jail who was s...
Tags: Supreme Court, Law, St Louis, Round-up, Thomas, Brett Kavanaugh, David Lat Original Jurisdiction Supreme Court, Ariane de Vogue CNN, Alison Frankel Reuters Biden, Supreme Court John Fritze USA Today


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


Zoom is ruining conversation because it's much harder to interrupt.

I'm reading "How the Zoom era has ruined conversation." (WaPo) Maybe you think it's better to disempower the interrupters. If so, you need to hear from those who understand the importance of overlapping conversation — collaborative conversation: Suppose someone is speaking and another person, eager to express agreement, chimes in at the end of their sentence. Over Zoom, this tends to derail the discussion or narrative.... Then there’s the turn-waiting....[S]ociolinguist Deborah Tannen... descri...
Tags: Technology, Law, California, Etiquette, Conversation, Thomas, WaPo, Clarence Thomas, Race Consciousness, Ann Althouse, Deborah Tannen


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


Congressional committee told Marine division commander placed on administrative leave in fatal AAV sinking off San Clemente Island

Marine Corps officials told lawmakers during a congressional hearing Monday, May 3, that Maj. Gen. Robert Castellvi, who was in command of the 1st Marine Division at Camp Pendleton at the time of a July 30 training accident in which nine men died, has been put on administrative leave while a new investigation is completed. The House Armed Services Committee hearing Monday focused on testimony from two top Marine leaders regarding the investigation into the accident, in which an amphibious assaul...
Tags: News, California, Sport, Marine, Soccer, Military, Marine Corps, Marines, Pentagon, Thomas, AAV, House Armed Services Committee, Camp Pendleton, Gary Thomas, David Berger, San Clemente Island


Justices turn down cadet’s attempt to sue government over sexual assault

The Supreme Court won’t weigh in on whether a West Point cadet who was sexually assaulted by a fellow classmate can sue the federal government. The justices announced on Monday morning that they will not hear oral argument in Doe v. United States, one of the cases that they considered at their private conference last week. The justices also called for the federal government’s views in two cases, but they once again did not act on a closely watched challenge to a Mississippi law that would gener...
Tags: Featured, Mississippi, Supreme Court, Law, West Point, Congress, United States, DOE, Thomas, Dobbs, Howe, Jane Doe, American Axle, Goldstein Russell, United States Military Academy, FTCA


"Justice Clarence Thomas, who once went a decade without asking a question from the Supreme Court bench, is about to complete a term in which he was an active participant in every single argument...."

"The justices now ask questions one at a time, in order of seniority. Justice Thomas, who joined the court in 1991, goes second, right after Chief Justice John G. Roberts Jr., asking probing questions in his distinctive baritone....  If Justice Thomas’s questions differed from those of his colleagues, it was in their courtesy. He almost never interrupted lawyers, though he asked pointed follow-up questions if there was time left. Some of his most memorable comments were colorful asides. Over...
Tags: Supreme Court, Law, Louisiana, Thomas, Adam Liptak, Clarence Thomas, John G Roberts Jr, Unsaid Things, Race Consciousness, Ann Althouse, Georgetown 's Supreme Court Institute, Irv Gornstein


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



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