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The morning read for Wednesday, April 7

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 Wednesday morning read: Justice Breyer Rejects ‘Conservative’ Tag for U.S. Supreme Court (Greg Stohr, Bloomberg) Justice Breyer says expanding the Supreme Court could erode trust (Robert Barnes, The Washington Post) Why Is the Supreme Court Hesitating on Abortion? (Ed Kilgore, New York...
Tags: Supreme Court, Law, Washington Post, United States, Round-up, Josh Blackman, Robert Barnes, Breyer, Supreme Court Hesitating, U S Supreme Court Greg Stohr Bloomberg, Kilgore New York magazine SCOTUS, Knight Foundation Thomas, Howard Wasserman PrawfsBlawg In Terry


Are we soon going to start seeing notable judicial nominees from Prez Biden?

This past week was full of big accomplishements for the Biden Administration with the confirmation of Attorney General Merrick Garland and the passage of the big COVID relief bill.  And now, as we approach nearly two months into the new Administration, there is reason to expect we will start seeing Prez Biden announce some judicial nominations.  These recent press articles certainly are raising expections that nomination will be coming soon: From Axios, "White House primes 'pipeline' of federal ...
Tags: Law, Cnn, Jackson, Biden, Josh Blackman, Prez Obama, DC Circuit, Douglas A Berman, US Sentencing Commission, Merrick Garland, Ketanji Brown Jackson, Axios White House, Biden Administration, Prez Biden


US House subcommittee to hold hearing on means to "Prevent Abuse of the Clemency Power"

The planned start of former Prez Trump's second impeachment trial in the US Senate is sure to be getting all the attention on Capitol Hill tomorrow.  But this webpage notes that there will be an interesting hearing for clemency fans taking place the morning of February 9, 2021 in the the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives' Judiciary Committee. The hearing it titled "Constitutional Means to Prevent Abuse of the Clemency Power,"...
Tags: Law, US, House, US Senate, Capitol Hill, Josh Blackman, Douglas A Berman, Prez Trump, U S House of Representatives Judiciary Committee, Caroline Fredrickson, Clemency Power


Trump, Incitement, and Free Speech

  Josh Blackman and Seth Tillman argue at the Volokh Conspiracy blog that, even if Trump culpably incited the cop-killing riot in the Capitol building, he cannot be impeached for it, because his speech is protected by the First Amendment.  They cite the extremely protective standard of Brandenburg v. Ohio, which limits criminal punishment for incitement.  But they neglect to mention the more pertinent area of free speech law, which concerns the disciplining of public employees because of their...
Tags: Supreme Court, Congress, Ohio, Branding, Trump, Josh Blackman, Capitol, Board of Education, Brandenburg, Garcetti, Meyers, Pickering, Volokh Conspiracy, Andrew Koppelman, Seth Tillman, Trump Incitement


Friday round-up

The Supreme Court is expected to release one or more opinions in argued cases at 10 a.m. EST. The most time-sensitive pending case is Trump v. New York, the challenge to the president’s plan to change the way that House seats are apportioned among the states by excluding people living in the country illegally from the census data used in the apportionment formula. A full list of the cases that have been argued so far this term is available here. Here’s a round-up of other Supreme Court-related...
Tags: New York, Supreme Court, Law, House, Trump, Round-up, Josh Blackman, Roberts, Jess Bravin


Wednesday round-up

Here’s a round-up of Supreme Court-related news and commentary from around the web: On Night of Ginsburg’s Death, McConnell Pushed Trump to Nominate Amy Coney Barrett (Patrice Taddonio, Frontline) Indiana Asks the Supreme Court to Let It Strip Rights From Same-Sex Parents (Mark Joseph Stern, Slate) Texans still can’t buy liquor in Walmart, after U.S. Supreme Court rejects bid (Stacey Fernandez, The Texas Tribune) Now that Pennsylvania has certified its election results, we may never know whethe...
Tags: Supreme Court, Law, Walmart, Pennsylvania, Round-up, U S Supreme Court, Mark Joseph Stern, Josh Blackman, Ginsburg, Barrett, McConnell Pushed Trump, Stacey Fernandez, Texas Tribune Now


Wednesday round-up

Here’s a round-up of Supreme Court-related news and commentary from around the web: The Chief Justice’s Unexpected Super Precedent from the Shadow Docket (Josh Blackman, The Volokh Conspiracy) Can Liberals Win in a Conservative Court? (David Cole, The New York Review) Justice Alito Sees Danger Ahead for First Amendment Religion and Speech Rights (Tony Mauro, Freedom Forum) Supreme Court Must Eradicate Judicial Override in Death Penalty Cases (O.H. Eaton, Jr., Bloomberg Law) Big Oil Seeks Suprem...
Tags: Supreme Court, Law, Round-up, Josh Blackman, Russ Bleemer, New York Review Justice Alito


Symposium: The individual plaintiffs in California v. Texas suffer a greater Article III injury than did the individual plaintiffs in NFIB v. Sebelius

This article is part of a symposium previewing California v. Texas. Josh Blackman is a professor of law at South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the author of two (and soon three) books on Obamacare’s legal controversies. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Together they filed an amicus brief on Cato’s behalf su...
Tags: Texas, Featured, Supreme Court, Law, Obamacare, Congress, California, ACA, Hurley, Brown, John Roberts, Josh Blackman, Cato, Cato Institute, Roberts, NFIB


Thursday round-up

Supreme Court-related coverage on Wednesday focused on President Donald Trump’s announcement of 20 new additions to his list of potential nominees to the high court. In a story for SCOTUSblog (first published at Howe on the Court), Amy Howe explains the four different iterations of Trump’s list over the last four years and looks at some of the surprising new additions. In other coverage of the list, Adam Liptak of the New York Times notes that it “was issued although there is no current vacancy,...
Tags: Supreme Court, Law, Cnn, New York Times, Donald Trump, Wall Street Journal, Trump, Round-up, Josh Blackman, Howe, Adam Liptak, Jess Bravin, Hernandez, Mesa, Joan Biskupic, Amy Howe


Tuesday round-up

This week marks the 10-year anniversary of Justice Elena Kagan’s confirmation to the Supreme Court, and USA Today’s Richard Wolf examines the heavy influence she has had during her first decade as a justice. Kagan’s ability to find common ground with conservative justices – and to pick her battles when she dissents – has helped the court maintain “most of its luster as the least political branch of the federal government,” Wolf writes. At the same time, the political branches continue to focus o...
Tags: Supreme Court, Law, Washington Post, Nbc News, Barack Obama, Joe Biden, Indiana, Cnn, Nevada, Circuit, Usa Today, Round-up, Wolf, John Roberts, Josh Blackman, Roberts


Thursday round-up

Justice Ruth Bader Ginsburg underwent a minimally invasive medical procedure, and the Trump administration asked the Supreme Court to allow it to continue using federal funds to build its border wall. Those were the two main stories from the court on Wednesday, and Amy Howe has the details on both of them. Ginsburg was back in the hospital for a common, non-surgical procedure to revise a bile duct stent that was originally placed last year, and she expects to be released from the hospital by the...
Tags: Supreme Court, Law, Cnn, Nevada, Oklahoma, Donald Trump, Department Of Homeland Security, Ruth Bader Ginsburg, Trump, Round-up, John Roberts, Josh Blackman, Vance, Roberts, Howe, Ginsburg


Wednesday round-up

Briefly: CNN’s Joan Biskupic continues her series on the Supreme Court’s internal workings during its 2019-20 term. In her latest installment, Biskupic reports that Justice Brett Kavanaugh “urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump’s financial records.” At Talking Points Memo, Ciara Torres-Spelliscy argues that the court’s rulings on subpoenas for Trump’s financ...
Tags: Supreme Court, Law, Cnn, Oklahoma, Donald Trump, Trump, Round-up, Josh Blackman, Vance, Kavanaugh, Joan Biskupic, Ciara Torres Spelliscy, Brett Kavanaugh, Neil Gorsuch, Summer Zervos, McGirt


Invisible majorities: Counting to nine votes in per curiam cases

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.” When the Supreme Court issues a signed opinion, each of the nine justices will indicate their position: affirm, reverse or recuse. But not all opinions are signed. The court sometimes issues unsigned per curiam decisions – so named after the Latin phrase meaning “by the court.” In such cases, the just...
Tags: Florida, Featured, Supreme Court, Law, Congress, Colorado, California, Washington, Sharp, Oklahoma, Ruth Bader Ginsburg, Thomas, Sonia Sotomayor, John Roberts, Josh Blackman, Creek Nation


Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes

The unintended consequences of not reading the Constitution’s “office”- and “officer”-language intratextually. Josh Blackman and Seth Barrett Tillman Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC . (We wrote about it here .) This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico. The board members are appointed by the President without the Senate’s advic...
Tags: Congress, Washington, Senate, Court, Spain, Indiana, United States, House, House Of Representatives, Treasury, Ohio, Hamilton, Branding, Puerto Rico, Guest Blogger, Thomas


Symposium: It must be nice to have John Marshall on your side

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, and the co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.” Two centuries after his death, Chief Justice John Marshall still presides over the Supreme Court. His larger-than-life statue greets visitors. During investiture ceremonies, new members sit in his chair. And the justices cite him whenever possible. This term was no exception: Marshall authorized the ...
Tags: Featured, Supreme Court, Law, Washington, Virginia, US, United States, Xerox, Manhattan, Donald Trump, Madison, Hay, Richmond, Trump, Marshall, George Washington


Blackman, Barnett, and the Bostock decision

Josh Blackman and Randy Barnett argue in National Review that the Supreme Court was wrong to hold that discrimination against LGBT people is sex discrimination.  They claim that Justice Gorsuch’s opinion for the Court misunderstands Title VII of the Civil Rights Act, which forbids employers   to “discriminate against” employees “because of . . . sex.”  They argue that this phrase, in its ordinary meaning in 1964 (when the Civil Rights Act was passed), did not simply mean, as Justice Gorsu...
Tags: Supreme Court, Congress, Court, Barnett, Branding, Hopkins, National Review, Antonin Scalia, Bradley, Josh Blackman, Phillips, Blackman, Alito, Clayton County, Gorsuch, Randy Barnett


US supreme court gives conservatives the blues but what's really going on?

Donald Trump’s nomination of two justices seemed to have tilted the balance decisively but recent rulings have raised eyebrowsFor all the ominous twists of Donald Trump’s presidency, his placement on the US supreme court of two deeply conservative justices, Neil Gorsuch and Brett Kavanaugh, inspired a special kind of foreboding for many liberals.With three conservatives already sitting on the court, the creation by Trump of a seemingly impregnable, five-vote conservative supreme court majority a...
Tags: Texas, News, Justice, Supreme Court, Congress, California, Senate, US, Barack Obama, Joe Biden, Democrats, Louisiana, Donald Trump, Ruth Bader Ginsburg, George W Bush, Trump


Monday round-up

Amy Howe reports for this blog that on Friday the court denied a request that it revive a lower court ruling allowing any Texas voter to vote by absentee ballot without an excuse for the 2020 election cycle; her post originally appeared at Howe on the Court. For , Adam Liptak reports that “[t]he Texas Democratic Party and several voters had urged the court to reinstate a federal trial judge’s injunction requiring state officials to allow all voters, and not just those who are 65 or older, to su...
Tags: Texas, Supreme Court, Law, Bloomberg, Harvard, Atlantic, United States, SEC, Fox News, Usa Today, Department Of Homeland Security, Securities And Exchange Commission, Trump, Round-up, Chapel Hill, University Of North Carolina


Unbundling DACA and Unpacking Regents: What Chief Justice Roberts Got Right

Benjamin Eidelson This post offers preliminary analysis of DHS v. Regents, last Thursday’s Supreme Court decision invalidating the 2017 rescission of the Deferred Action for Childhood Arrivals (DACA) policy. I’ll focus mainly on Chief Justice Roberts’ approach to the merits, which closely tracks a theory developed in a brief that I co-authored on behalf of the “D.C. Respondents” (as well as an op-ed that I published in the fall). [1] I’ll also flesh out the Court’s sound reasons for refusing...
Tags: Texas, Supreme Court, Obama, Congress, John Lennon, Court, Reagan, Dhs, United States, Social Security, Harry Potter, Michigan, Epa, Nielsen, Duke, Justice Department


Friday round-up

Amy Howe reports for this blog, in a post that was originally published at Howe on the Court, that yesterday evening the Supreme Court put a hold on district court orders requiring the transfer of prisoners from a federal prison in Ohio where inmates are at risk from COVID-19. At NBC News, Pete Williams reports that “[i]n a brief, unsigned order with no noted dissent, the court gave the Trump administration more time to challenge the judge’s order in the lower courts.” For the Los Angeles Time...
Tags: Supreme Court, Law, California, Court, Ohio, Abc News, Los Angeles Times, Trump, Round-up, John Roberts, Josh Blackman, Howe, David Savage, Amy Howe, National Law Journal, Marcia Coyle


Friday round-up

At Law & Liberty (via How Appealing), John McGinnis worries that in two cases involving “the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President,” “the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning.” In a response at Reason’s Volokh Conspiracy blog, Josh Blackman suggests that...
Tags: Supreme Court, Law, California, Indiana, Usa Today, US supreme court, Trump, Round-up, Thomas, National Review, Josh Blackman, Richard Wolf, Clarence Thomas, Electoral College, National Law Journal, Volokh Conspiracy


What schools might look like this fall

The very best piece I have read on the near-insanity of reopening our colleges and universities (and law schools) this fall was published earlier today by Josh Blackman on the Volokh Conspiracy.  It deserves to become viral and the subject of national discussion, given the almost literally fantastic desire of political "leaders" to pretend that we have turned the corner--rather than, at best, reached only the end of the terrible beginning--of the ravages threatened by Covid-19.  Josh, of course,...
Tags: Branding, Josh, Josh Blackman, Sandy Levinson, Trump Administration, COVID


Senator/Vice President Warren

A major impediment to Elizabeth Warren's becoming Joe Biden's running mate is said to be the fact that Charlie Baker, the immensely popular governor of Massachusetts, is a Republican who would presumably appoint a Republican to succeed her in the Senate until a special election could be held later in the spring.  The Democrats can scarcely afford to lose a single seat (unless, of course, the GOP keeps the Senate anyway, in which case we're basically all doomed.)  But consider the following two p...
Tags: Senate, Massachusetts, Office, Elizabeth Warren, Joe Biden, Gop, United States, Warren, Biden, Baker, Kennedy, Executive Branch, Mitch, Branding, Authority, Josh Blackman


Friday round-up

Yesterday the court issued a unanimous decision in trademark case Lucky Brand Dungarees v. Marcel Fashions Group, holding that because Marcel is raising claims it did not raise in a previous suit between the parties, Lucky Brand is not precluded from raising new defenses. Megan La Belle analyzes the opinion for this blog. For (subscription required), Brent Kendall and Jess Bravin cover Wednesday’s arguments in Chiafalo v. Washington and Colorado Department of State v. Baca, which ask whether t...
Tags: Google, New York, Texas, Supreme Court, Law, California, Washington, America, Bloomberg, New York Times, Ruth Bader Ginsburg, Trump, Round-up, Lucky Brand, Sonia Sotomayor, Josh Blackman


Thursday round-up

Amy Howe analyzes yesterday’s arguments in Chiafalo v. Washington and Colorado Department of State v. Baca, which ask whether the Constitution forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral college ballots, for this blog, in post that first appeared at Howe on the Court. Ariane de Vogue reports at CNN that “[b]y the end of arguments, some justices seemed prepared to reject arguments from lawyers for so-called faithless ele...
Tags: New York, Supreme Court, Law, Washington Post, Washington, Nbc News, Bloomberg, Cnn, Npr, Republican, Vox, ABA Journal, Trump, Round-up, John Roberts, Josh Blackman


Courtroom access: Where do we go from here?

Yesterday the Supreme Court heard oral argument in a set of cases that Deputy Solicitor General Jeffrey Wall, who argued on behalf of the federal government, described as “truly historic.” At issue was whether President Donald Trump could prevent the disclosure of his financial records, including his tax returns, to state prosecutors and congressional committees. In normal times, the disputes’ high profile would have resulted in long lines outside the court. But because of the COVID-19 crisis, n...
Tags: Featured, Supreme Court, Law, Cnn, Canada, United Kingdom, Donald Trump, Puerto Rico, Josh Blackman, Blackman, Howe, Stephen Breyer, Breyer, Joan Biskupic, Jeffrey Wall, Art Lien


Courtroom access: The “bar line” and “bar section”

This post is based extensively on data collected by Casey Quinlan, Kalvis Golde and Katie Bart and analyzed and put into graphic form by Kalvis Golde and Katie Bart. On many days at the Supreme Court, members of the general public hoping to obtain a coveted spot at oral argument are not the only ones waiting in line on the sidewalk outside the court. Especially on days when the court is hearing arguments in high-profile cases, the line for members of the Supreme Court bar – lawyers who are admi...
Tags: Featured, Supreme Court, Law, Lgbt, Trump, Josh Blackman, Blackman, Howe, Deferred Action for Childhood Arrivals, Public Information Office, Kalvis Golde, Katie Bart, Courtroom access — October Term 2019, Casey Quinlan Kalvis Golde, Supreme Court bar However


Tuesday round-up

On this second day of this unusual May session, the justices will hear – literally, only hear – oral argument in USAID v. Alliance for Open Society International, a First Amendment challenge to the enforcement against overseas groups of a requirement that recipients of federal funds to fight HIV/AIDS abroad have a policy opposing prostitution and sex trafficking. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Kayla Anderson and Prachee Sawant preview the case for Co...
Tags: Usa, Texas, Supreme Court, Law, Washington Post, Bloomberg, Pennsylvania, New Orleans, Fox News, Npr, Louisiana, Usaid, Irs, Round-up, Thomas, Peter


COVID-19 pandemic roundup

Gov. Andrew Cuomo has shown himself quite the deregulator during New York’s coronavirus emergency. If only so many of his steps were not accompanied by that word “temporary” [Alex Tabarrok] Where government has failed, Silicon Valley biotech to the rescue [Andrew Leonard, Wired] Lawn care, small motorboats, the paint aisle: What sets Michigan apart is how far its governor has gone in imposing arbitrary restrictions that have little if any plausible link to curbing virus transmission. [Shikha...
Tags: New York, Law, Uncategorized, Eu, Silicon Valley, Michigan, Andrew Cuomo, Josh Blackman, Arlington VA, Hans Bader, Alex Tabarrok, Shikha Dalmia, Racial Preferences, Alec Stapp, COVID-19 virus, Andrew Leonard Wired


Wednesday round-up

At The Washington Free Beacon, Kevin Daley reports that Monday’s decision in Ramos v. Louisiana, in which a fractured court ruled that the Constitution requires a unanimous jury verdict in state criminal trials, “featured a continuing debate over the force of precedent” that “was something of a proxy for disputes over basic principles.” The editorial board of (subscription required) observes that the ruling “offers an illuminating look at the diversity of conservative thought.” Matt Ford write...
Tags: Supreme Court, Law, Court, New York Times, Wisconsin, Epa, Christian, Louisiana, Foley Hoag, ABA Journal, Round-up, New Republic, Josh Blackman, Adam Liptak, Ramos, Mark Walsh