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The Latest Breaking News from Breyer

The Supreme Court at the 2023 State of the Union

President Biden goes off script on abortion.

Reason

Analogical Reasoning and the Second Amendment

In historical inquiry, reasoning by analogy is a commonplace task for any lawyer or judge.

Reason

Mum's pride as five-year-old daughter saves her life after she collapsed

Breyer Warke knew to call her grandad to ask for help after her mum collapsed

Wales Online

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Traditionalism Rising, Part III: The "Level of Generality" Problem

One important challenge to traditionalism involves what some have termed the "level of generality" problem. Mark Tushnet, in addressing a previous article of mine on traditionalism, observed: Referring to the Bladensburg cross case, DeGirolami criticizes Justice Breyer for "drawing" the practice with reference solely to the very cross at issue…But,…

Reason

Restoring the right to bear arms, New York State Rifle and Pistol Association v. Bruen

Article for Cato Supreme Court Review

Reason

Dobbs Is Making Our Democracy Work

Justice Breyer, whether he admits it or not, should recognize how Dobbs reinvigorated the legislative process on abortion.

Reason

It Must Be Nice To Have John Marshall On Your Side, Except for Indian Law

Justice Gorsuch embraces Worcester v. Georgia, while Justice Kavanaugh rejects the great Chief Justice.

Reason

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"Your Money Or Your Life"

A famous line from NFIB v. Sebelius shows up in U.S. v. Taylor

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,…

Reason

The US supreme court is turning the constitution into a suicide pact

The constitution is being used to destroy the very democratic governance that it was designed to protect

The Guardian - US

Why Didn't Kennedy Formally Overrule Lemon?

There were no Establishment Clause claims present, and Kennedy did not ask the Court to reverse Lemon.

Reason

Farewell to Footnote 3 of Trinity Lutheran

In Carson v. Makin, the Chief Justice stealthily eliminated the status/use distinction.

Reason

Forget Carson! Remember the Maine Human Rights Act.

Maine finds a way to undercut Carson v. Maikin.

Reason

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Reason

Scalia's "Prophecy" in Lawrence And The Joint Dissent in Dobbs

That awkward moment when Justice Breyer joins an opinion that criticizes his join in Lawrence.

Reason

The Assignments and Timing in Dobbs

Who assigned the majority opinion to Justice Alito?

Reason

Bruen, Originalism, and Post-Enactment Practice

What role should liquidation play in originalism?

Reason

Justice Kavanaugh on the Right to Travel to Get an Abortion

This is a tremendously important question, as Ilya's and my posts noted in May. Justice Kavanaugh's concurrence in Dobbs today expressly noted: [A]s I see it, some of the other abortion-related legal questions raised by today's decision are not especially difficult as a constitutional matter. For example, may a State…

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Reason

Exclusion of Religious Schooling from Generally Available School Choice Programs Generally Unconstitutional,

except for the training of the clergy, holds the Supreme Court.

Reason

Barrett v. Gorsuch -- Continued

Justice Gorsuch has dissented from two-thirds of Justice Barrett's majority opinions this term.

Reason

Conjunction Disjunction in the Dobbs Draft

Does the Glucksberg test require a right to be "fundamental" and "deeply rooted" or "fundamental" or "deeply rooted"?

Reason

Whodunit?

And why that is, at this point, an important question - maybe the only important question - emerging from the recent Dobbs leak

Reason

Justice Alito Identifies The Problems With Justice Breyer's "Factorized" Jurisprudence

"And like any factorized analysis, this approach cannot provide a principled way of deciding cases."

Reason

Justice Breyer Takes a Flood v. Kuhn-Esque Detour On Boston Architecture

"Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style."

Reason

Supreme Court on What Counts as a Content-Based Speech Restriction

Today's decision in City of Austin v. Reagan National Advertising makes this test somewhat fuzzier.

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