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The Latest Breaking News from Alito

Making Sense Of The Votes In Bittner v. United States

Why did Justices Kagan and Sotomayor, but not Justice Jackson, join Justice Barrett's dissent?

Reason

An Unusual Supreme Court Split in Bittner v. United States

The Bank Secrecy Act divides the justices in an unusual way, and Justice Barrett authors her fourth opinion in an argued case.

Reason

Justice Sotomayor: Summary Reversal on the "Shadow Docket" Caused A "Significant Change" In Federal Law

Justice Barrett countered that the SumRev "did not change the content of federal law."

Reason

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Has Justice Barrett Replaced Justice Ginsburg as the Court's Quickest Opinion Writer?

Justice Barrett has produced two majority opinions before most of her colleagues have produced one.

Reason

Abortion and the 13th Amendment

Judges cannot take the Supreme Court's silence as a ground to subvert Supreme Court precedent.

Reason

Experts stunned by SCOTUS leak omissions

Experts say Supreme Court Dobbs opinion leak probe is "really not an investigation"

Salon

Justice Alito Asks Questions in 303 Creative from Jewish Coalition for Religious Liberty Amicus Brief

Justice Kagan confirms that J-Date is in fact a Jewish dating site.

Reason

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Predicting a Fragmented Vote in United States v. Texas

I don't think there will be a five vote bloc on standing or the remedy.

Reason

Some Thoughts on Elite-Law-School Bias in Clerkship Hiring

Does the bias exist? Is it a good thing? What does it mean for law students at lower-ranked schools? What does mean about me?

Reason

Life Imitates the Volokh Conspiracy

A reader reminded me of this blog post Jan. 24, 2022: Will the Supreme Court Ask Harvard How it Justifies Treating "Asian Americans" as a Homogenous Category? I wrote: "I'm not quite sure what Harvard's lawyer would or could say if asked why, say, Filipino, Nepalese, and Mongolian applicants are…

Reason

Colloquy on the Arbitrariness of Racial Classification in Monday's Oral Argument

In the oral argument from SFFS v. UNC, Justice Alito raised the question, highlighted in my amicus brief and book, of whether the racial and ethnic classifications used by UNC and other universities are so arbitrary as to be unconstitutional. I have posted the colloquy below. Two comments: (1) Justice…

Reason

Review of Oral Argument in Students for Fair Admission v. University of North Carolina

My Justice-by-Justice breakdown.

Reason

Yeshiva University Loses On The Shadow Docket, Wins On The Penumbra Docket

SCOTUS nudges the lower courts and parties into compliance.

Reason

The Way To Stop Worrying About Judicial Legitimacy Is To Stop Worrying About Judicial Legitimacy

The answer to any question about the Supreme Court's legitimacy should be "next question."

Reason

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Reason

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part V: The Abuse of Strict Scrutiny

I will conclude this series of posts by considering the variants of MFN that affect the way strict scrutiny is applied. MFN-6, ubiquitous in the Covid cases, makes strict scrutiny impossible to satisfy, by treating as equivalents regulated actions that are radically different in their effects on the pertinent state…

Reason

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part II: The Origins of MFN

The present doctrinal development begins with Church of Lukumi Babalu Aye v. Hialeah (1993), in which the Court invalidated a ban on animal sacrifice. The Court had previously held that there was no right to religious exemptions from neutral laws. But this law wasn't neutral. It targeted an unpopular religion…

Reason

The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part I: The New Law of Free Exercise

Eugene has kindly invited me to contribute a series of posts, briefly describing my taxonomy of new variants of the most-favored-nation theory of religious liberty (forthcoming in the Iowa Law Review). I'm particularly pleased by the invitation, because I wrote the piece in conscious emulation of the kind of careful…

Reason

Should the Law Limit Private-Employer-Imposed Speech Restrictions? Some Other Reasons Why

As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and…

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Reason

Let's talk about 8 U.S.C. § 1252(f)(1) and Justice Barrett's concurrence in Biden v. Texas

As (yet another) Texas v. U.S. slides from the shadow docket to the rocket docket

Reason

Kagan Clings To Casey's Conception of Legitimacy

Like the Constitution itself, Casey's precedent on precedent is dead.

Reason

When Are Lies Constitutionally Protected?: Unpunishable Lies

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (You can also read the whole article here; all the posts about it…

Reason

Justice Scalia's Dissent in Dickerson v. United States Is Vindicated Two Decades Later

Would the current Court have ruled with Justices Scalia and Thomas on Miranda?

Reason

A Term Of DIGs And Almost-DIGs

This past term, the Court only issued 58 signed opinions. As low as that number is, it was made even lower by DIGs. The Supreme Court dismissed as improvidently granted two cases: United States v. Texas was DIG'd. Justice Sotomayor dissented from the DIG. Arizona v. San Francisco was DIG'd.…

Reason

How Many Opinions Did Each Justice Write During OT 2021?

During the October 2021 Term, each Justices authored between five and eight majority opinions. The Chief assigned himself the most majority opinions (8) and Justice Kavanaugh had the fewest (5). Justice Kavanaugh wrote the most concurring opinions with 8. Indeed, Kavanaugh beat Thomas and Alito, who each had 7. Five…

Reason

The 3-3-3 Court on the Merits Docket and the Shadow Docket

On June 18, 2021, I wrote, "We don't have a 6-3 Conservative Court. We have a 3-3-3 Court." I'm not sure if I was the first person to coin the phrase 3-3-3 Court, but I was one of the first. And I elaborated on this theme in a Newsweek column,…

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