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The Latest Breaking News from Breyer

Could President Trump Recess Appoint His Entire Cabinet Under Justice Scalia's Noel Canning Concurrence?

Would a person serving under the Vacancies Reform Act, who resigns, create a vacancy for purposes of the Recess Appointments Clause? Would a presidential adjournment of Congress be an inter-session or an intra-session recess?

Reason

VP Candidate Tim Walz on "There's No Guarantee to Free Speech on Misinformation or Hate Speech, and Especially Around Our Democracy"

Robby Soave at Reason writes about this 2022 quote from Walz (MSNBC): https://youtu.be/y8ns76RCmWs [MARIA TERESA KUMAR, MNSBC HOST]: … I want to talk about what you just mentioned about misinformation, because, oftentimes before, in previous political chapters, disinformation, telling people were to vote the wrong way, that was kind of…

Reason

The Way To A Circuit Court Nomination Is To Lose A Landmark Supreme Court Case

President Biden nominated the non-prevailing attorneys in Dobbs and SFFA to the First and Fourth Circuits, respectively.

Reason

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The Two Edges of Tradition: "Adverse Possession" and "Use It Or Lose It"

If the government exercises a power it lacks for a long time, it can keep exercising that power. But if a government does not exercise a power it has, it loses that power.

Reason

Justice Barrett's Concurrence In Vidal v. Elster Is a Repudiation of Bruen's "Tradition" Test

I expect Justice Barrett will exhibit her buyer’s remorse of Bruen in Rahimi.

Reason

Second Amendment Roundup: A Double Shot of Oral Arguments

“Large-capacity” magazines and semiautomatic rifles are “bearable arms” in common use, no different from the handguns in Heller, but will two en banc courts agree?

Reason

Journal of Free Speech Law: "Distrust, Negative First Amendment Theory, and the Regulation of Lies," by Prof. Helen Norton

The seventh of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

Reason

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Justice Jackson Seems to Be Charting a More Speech-Restriction-Tolerant Approach

Justice Jackson, like Justice Breyer (whom she replaced and for whom she clerked), seems to be considering an approach that is more embracing of speech restrictions that she views as especially urgent—including perhaps ones that departs from precedents such as the Pentagon Papers case.

Reason

Ten Reflections on Justices Kavanaugh and Barrett's Votes In Dobbs

On Friday, I wrote a post that totaled nearly 6,000 words about the New York Times bombshell report on Dobbs. My initial goal was to simply lay out all of the new disclosures--and there were many of them. Now, I've had some time to think about this new information. Here,…

Reason

Dobbs Was Never In Doubt

And the leak likely did not "lock in" anything.

Reason

16 Disclosures from the New York Times Leak Report About Dobbs

Jodi Kantor and Adam Liptak of the New York Times have published a remarkable story about Dobbs that reports on private correspondences, votes at conference, and more. This post will highlight sixteen of the largest disclosures, and close with some broader thoughts. And I've presented this narrative in (roughly) chronological…

Reason

Progressives Should Be Grateful For President Trump's Not-So-Conservative SCOTUS Picks

Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong.…

Reason

"What a Difference Five Years Makes"

What would Masterpiece have looked like with Justice Kennedy still on Court?

Reason

On Religious Divisiveness and the Judicial Role

Justice Breyer thought the Establishment Clause authorizes judges to improve the tone of political discourse. It does not.

Reason

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Reason

Justice Breyer's Establishment Clause Particularism

Justice Breyer saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial balancing exercise.

Reason

"Appeasement"? Or, Avoiding Error?

Justice Breyer did not always vote with the Court’s strict-separationist justices. Good for him.

Reason

Prof. Rick Garnett (Notre Dame) Guest-Blogging About Justice Breyer's Establishment Clause Approach

I'm delighted to report that Prof. Rick Garnett (Notre Dame) will be guest-blogging this week about his forthcoming First Amendment Law Review article, "Justice Breyer and the Establishment Clause: Notes on 'Appeasement', 'Legal Judgment', and 'Divisiveness'". I've long found Justice Breyer's Establishment Clause approach to be interesting (though ultimately on…

Reason

Sotomayor and Kagan "Go Back To School" Each Other in Warhol v. Goldsmith

Does The Relationship Between Justices Sotomayor and Kagan "Have Much Of A Future"? Or was this just their "Fifteen Minutes" of Flame Wars?

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Reason

Justice Stevens's Papers Will Be Released While Justices O'Connor, Kennedy, Souter, Thomas, and Breyer Are Still Alive

First stop for reporters: the Grutter and Gratz files.

Reason

Chief Justice Roberts's Letter to Senator Durbin

Last week Senator Dick Durbin invited Chief Justice Roberts to testify before the Senate Judiciary Committee. Despite my hope that the Chief would send Justice Breyer, Roberts respectfully declined Durbin's invitation. And he sent a letter explaining his decision. The letter is short--only one page--but Roberts packs a lot in…

Reason

Senator Durbin Invites CJ Roberts "Or Another Justice Whom [He] Designate[s]" To Testify Before Senate Judiciary Committee

Send Justice Breyer!

Reason

Ban on Knowingly False Statements During Emergencies Struck Down on First Amendment Grounds

From Judge Pedro Delgado-Hernández's opinion today in Rodriguez-Cotto v. Perluisi-Urrutia (D.P.R.): Article 5.14(a) criminalizes, after the Governor of Puerto Rico has decreed by executive order an emergency or disaster, to knowingly, purposely or recklessly: (1) give a warning or false alarm, knowing that the information is false, in relation to…

Reason

Joan Biskupic Breaks Some News About Pavan v. Smith and Masterpiece Cakeshop

Did Roberts and Kennedy swap votes to GVR Pavan and grant Masterpiece?

Reason

Joan Biskupic's Barely-There Exclusives

Gone are the days that Biskupic told us things we didn't already know.

Reason

How Often Do Justices Refer To "My Law Clerk"?

Justices Breyer and Sotomayor did it a lot.

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